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Knight v. State

Alabama Court of Criminal Appeals

August 10, 2018

Justice Jerrell Knight
v.
State of Alabama

          Appeal from Henry Circuit Court (CC-16-111; CC-16-112; CC-16-113)

          WINDOM, Presiding Judge.

         Justice Jerrell Knight appeals his convictions for three counts of capital murder. Knight was convicted of one count of murder made capital for taking the life of Jarvis Daffin during the course of a first-degree kidnapping, see §13A-5-40(a)(1), Ala. Code 1975; a second count of murder made capital for taking Daffin's life during the course of a first-degree robbery, see § 13A-5-40(a)(2), Ala. Code 1975; and a third count of murder made capital for taking Daffin' life through the use of a deadly weapon while Daffin was in a vehicle, see § 13A-5-40(a)(17), Ala. Code 1975. The jury recommended, by a vote of 11 to 1, that Knight be sentenced to death for his capital-murder convictions. The circuit court accepted the jury's recommendation and sentenced Knight to death.

         Facts

         In early 2012 Daffin and Knight were awaiting their anticipated income-tax refunds. The two friends had made plans to use the funds to purchase vehicles. Daffin desired a Pontiac Grand Am automobile and had given a seller, Steve Carlisle, a $50 deposit on one, while Knight sought a Chevrolet El Camino coupe-utility vehicle and had located a seller in Florida. When Charlotte King, Daffin's and Knight's tax preparer, contacted the men about their refunds, the news was mixed. King informed Daffin that she had a refund totaling $6, 653 for him; Knight, however, was told that he had not received a refund because the Internal Revenue Service had initiated an audit of his return. King testified that Knight was upset upon learning of the development.

         Knight drove Daffin to King's office to pick up Daffin's refund on February 3, 2012, and then to a local grocery store in Dothan to cash them. Peggy Reynolds, an employee of the grocery store, recalled cashing Daffin's checks that day; she added that she saw Knight "peeping" inside from the door of the grocery store. It was Reynolds's impression that Knight was watching to ensure that Daffin "was doing his transaction." (R. 483.) Reynolds also noted the presence of Antwain Wingard, commonly known as "Duke," in the grocery store that day, who she also believed was watching the transaction. Although Duke was several years younger than Knight, Knight knew the teenager because he was close to the Wingard family.

         Daffin placed $1, 000 in a front pocket of his pants and placed the remainder in a back pocket. Now flush with cash Daffin planned to complete his purchase of the Grand Am, which was located at Carlisle's auto-repair shop in Headland. Duke joined the two friends on their trip to Carlisle's shop. Upon reaching Headland early that afternoon, Daffin telephoned Carlisle to let him know that he was 15 minutes away. Daffin, however, never arrived at Carlisle's shop.

         The vehicle Knight had been driving that day was a black Kia Optima automobile that belonged to Comeshia Wingard, Duke's mother. Comeshia lived with Duke; her mother, Gwendolyn Wingard; her brother, Manguel Wingard; and Manguel's girlfriend, Porscha Copeland. Knight returned the Optima to the Wingard residence that evening. Knight attempted to give the keys to Porscha, but she declined to take them because of Knight's nervousness. Knight telephoned Manguel, who was at work, and told him: "Hey, bro. I'm sending you my gun by your momma. You can get rid of it or you can keep it, sell it. It went down and it didn't go down right. You can do whatever you want to do with the gun." (R. 726.) Knight informed Manguel that he intended to get a new cell phone and to travel to Miami. Knight also telephoned Gwendolyn, telling her that she could find a pistol under her pillow on her bed and asking her to give the pistol to Manguel. Gwendolyn retrieved the pistol but placed the pistol in her vehicle.

         That evening Gwendolyn traveled to her deceased mother's residence in Goshen; she abruptly returned home the following day, though, as the result of a telephone call from Comeshia. Comeshia directed her mother's attention to her Optima. Gwendolyn saw that the passenger seatbelt was missing, that there were what appeared to be bloodstains on the passenger seat, and that there was a hole in the lid of the glove compartment. Gwendolyn spoke to Duke and, after consulting with a friend and praying, contacted law enforcement. Responding officers searched Gwendolyn's house and received from her the pistol Knight had left under her pillow.

         That evening officers, along with Duke and Comeshia, traveled to some farmland in rural Henry County. Once there officers were able to follow tire tracks and apparent drag marks to Daffin's body, which had been left in a wooded area and covered with debris. Detective John Crawford of the Dothan Police Department testified that there were two distinct sets of shoe prints with the drag marks leading to Daffin's body. When his body was found, Daffin was not wearing pants and had only one shoe. An autopsy of Daffin's body showed that Daffin had been killed by a gunshot wound to the back left of his head. The bullet traveled through his brain and exited through his right nostril.

         The next day, February 5, 2012, Duke again spoke with Gwendolyn and gave his grandmother $920. Following the conversation Gwendolyn walked to the house of Janet Trice, where Knight lived, and looked in her garbage can. Inside she saw blue jeans and a shoe that appeared to be stained with blood. Gwendolyn testified that she recalled Daffin's wearing blue jeans on February 3. Gwendolyn summoned law enforcement and directed them to Trice's garbage can. Detective Crawford testified that the shoe found in the garbage can matched the shoe found near Daffin's body. During a search of Trice's house, officers recovered a pair of Knight's shoes that appeared to have a similar tread pattern to the shoe prints that led to Daffin's body.

         Through the course of the investigation, law enforcement learned that on the afternoon of February 3, Knight had been seen in Dothan at an O'Reilly Auto Parts store, where he purchased fabric dye, fabric cleaner, air fresheners, and rags, and at Coastal Car Wash, where surveillance footage captured him cleaning the interior of Comeshia's Optima. Officers recovered a shell casing from a trash bin at the car wash. Forensic testing determined that the shell casing had been fired from the pistol Gwendolyn had given to law enforcement.

         Duke was arrested on February 7, but law enforcement could not locate Knight. With the assistance of the United States Marshals Service, Knight was apprehended near Miami on February 20. After being returned to Alabama, Knight made a statement to Detective Crawford. Knight admitted to being involved in Daffin's murder, but said that he participated under duress. Knight alleged that Duke shot Daffin without warning and then threatened to kill Knight if he did not help dispose of Daffin's body. Forensic evidence, however, strongly indicated that it was Knight, not Duke, who shot Daffin. Specifically, swabs taken from the grip and trigger of the pistol had DNA that included Knight as a contributor but excluded Duke.

         Standard of Review

         This Court has explained:

"'When evidence is presented ore tenus to the trial court, the court's findings of fact based on that evidence are presumed to be correct,' Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994); '[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,' Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala. 1986); and we make '"all the reasonable inferences and credibility choices supportive of the decision of the trial court."' Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761."

State v. Hargett, 935 So.2d 1200, 1203 (Ala.Crim.App.2005). A circuit court's "ruling on a question of law[, however, ] carries no presumption of correctness, and this Court's review is de novo." Ex parte Graham, 702 So.2d 1215, 1221 (Ala. 1997). Thus, "[w]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment." Ex parte Jackson, 886 So.2d 155, 159 (Ala. 2004).

         Further, because Knight has been sentenced to death, according to Rule 45A, Ala. R. App. P., this Court must search the record for "plain error." Rule 45A states:

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

(Emphasis added.)

         In Ex parte Brown, 11 So.3d 933 (Ala. 2008), the Alabama Supreme Court explained:

"'"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.'" Ex parte Bryant, 951 So.2d 724, 727 (Ala. 2002) (quoting Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998)). In United States v. Young, 470 U.S. 1, 15 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:
"'The Rule authorizes the Courts of Appeals to correct only "particularly egregious errors," United States v. Frady, 456 U.S. 152, 163 (1982), those errors that "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. [157], at 160 [(1936)]. In other words, the plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Frady, 456 U.S., at 163, n.14.'
"See also Ex parte Hodges, 856 So.2d 936, 947-48 (Ala. 2003) (recognizing that plain error exists only if failure to recognize the error would 'seriously affect the fairness or integrity of the judicial proceedings,' and that the plain-error doctrine is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result' (internal quotation marks omitted))."

11 So.3d at 938. "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." Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala. 2001). Although Knight's failure to object at trial will not bar this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala. 1992).

         I.

         Knight argues that the jurors' repeated observations of him in identifiable jail clothing and physical restraints violated his right to a fair trial. Knight complains that, despite the circuit court's being aware of the issue, the judge took no ameliorative action to prevent such observations from reoccurring. Knight asserts that he is entitled to a reversal of his conviction because he was likely prejudiced by the jurors' observing him in jail clothing and physical restraints.

         The issue was first raised by the circuit court on the morning of the third day of Knight's trial. The circuit court stated to the parties that there was "a likelihood that the jurors have seen the defendant in apparent custody of the sheriff's office." (R. 655.) This appeared to be based on the circuit court's own observations of Knight's walking across the street from the jail to the courthouse while in the custody of the sheriff and wearing handcuffs. The circuit court admitted that, because of the small size of the courthouse, avoiding all contact between the jurors and Knight would be difficult. The sheriff clarified that Knight had been cuffed and shackled only for the purpose of transportation, adding that Knight had not been cuffed or shackled in the courtroom. (R. 663.)

         The circuit court asked the jurors if any of them had seen Knight "outside of the courtroom, either in the halls here of the courthouse, out on the square, [or] walking down the street." (R. 690.) Multiple jurors responded that they had seen Knight in the hallways of the courthouse, while another had seen Knight walking across the street and another had seen Knight in a courthouse elevator. (R. 690-91, 696.) The circuit court gave the following instruction to the jury:

"I want to be clear on this, particularly since it's been mentioned that he was in the custody of the deputy or the sheriff. Typically, we make every effort to make sure that jurors, when we're trying any case, do not know that a defendant is in custody. Mr. Knight is in custody.
"Under our law, someone charged with this offense is remanded to the custody of the sheriff of the county where the case is to be tried until the trial. That in no way means that he is guilty of this charge. Does everyone understand that?"
"....
"You have to presume that he is innocent of the charge. I've discussed that with you. I think you're all good Americans. And that's just as fundamental to being an American as the right to vote and freedom of religion and the right to raise your family and these other rights that we enjoy. Every American, regardless of personal issues, political beliefs, religious beliefs, agrees on those fundamentals.
"But I want to be very clear. You cannot hold that against him in any way. You cannot go back in your deliberations and discuss the fact that he is in custody and somehow is responsible for this offense. It cannot have any bearing at all on what your verdict is in this case, whether guilty or not guilty or guilty of any lesser offenses. And you can't discuss it during your deliberation. Okay?"

(R. 692-93.) The circuit court asked the jurors collectively and individually if they could follow his instructions and all jurors responded affirmatively. Later that day defense counsel moved for a mistrial based on the jury's seeing Knight in jail clothing and physical restraints. (R. 970-71.) The circuit court denied the motion for a mistrial.

         Defense counsel raised the issue again at the beginning of the penalty phase, asserting to the circuit court that he believed the jurors had seen Knight that morning wearing an orange jumpsuit and shackles. Defense counsel argued to the circuit court that Knight had been prejudiced by his contact with the jurors and that he "object[ed] to that." (Penalty R. 5-6.) Without ruling on defense counsel's objection, the circuit court questioned the jurors as to whether they had seen Knight that morning in jail clothing and physical restraints. Four responded that they had seen Knight that morning; a fifth responded that he had seen a person in an orange jumpsuit that morning but that he was unsure if that person was Knight. The circuit court again instructed the jurors that they could not hold against Knight his being in custody. All jurors responded that they could follow the circuit court's instructions.

         Although Knight moved for a mistrial, he did not do so in a timely fashion. "It is well settled that '[t]o be timely, a motion for a mistrial must be made immediately after the grounds alleged to warrant the mistrial become apparent.'" Garzarek v. State, 153 So.3d 840, 851-52 (Ala.Crim.App.2013) (quoting Culver v. State, 22 So.3d 499, 518 (Ala.Crim.App.2008)). Here, the grounds alleged to warrant a mistrial were apparent when the issue was raised by the circuit court; Knight, however, did not move for a mistrial at that time. On appeal Knight characterizes his objection raised at the beginning of the penalty phase as a motion for a mistrial, but defense counsel did not specifically request a mistrial. Regardless, the circuit court did not make an adverse ruling on Knight's objection. "'[I]t is incumbent upon counsel to obtain an adverse ruling to preserve an issue for appellate review.'" Lucas v. State, 204 So.3d 929, 939 (Ala.Crim.App.2016) (quoting Pettibone v. State, 91 So.3d 94, 114 (Ala.Crim.App.2011)). Consequently, this issue will be reviewed for plain error only.

         "The presumption of innocence ... is a basic component of a fair trial under our system of criminal justice." Estelle v. Williams, 425 U.S. 501, 503 (1976). Accordingly, "courts must be alert to factors that may undermine the fairness of the fact-finding process." Id. It has been recognized, for example, that compelling a defendant to stand trial before a jury in identifiable prison attire violates a defendant's presumption of innocence. See, e.g., United States v. Birdsell, 775 F.2d 645, 652 (5th Cir. 1985). "This is a recognition that the constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment. The defendant's clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented of impermissible factors coming into play." Estelle, 425 U.S. at 504-05 (citing Turner v. Louisia, 379 U.S. 466, 473 (1965)). Likewise, "[v]isible shackling undermines the presumption of innocence and the related fairness of the factfinding process." Deck v. Missouri, 544 U.S. 622, 630 (2005) (citing Estelle, 425 U.S. at 503).

         Here, though, there is no allegation that Knight stood trial while in jail clothing or physical restraints. It appears from the record that Knight was in jail clothing and physical restraints only while being escorted from the jail to the courtroom. This Court has held that it is not a "ground for a mistrial that an accused felon appears in the presence of the jury in handcuffs when such appearance is only a part of going to and from the courtroom. This is not the same as keeping an accused in shackles and handcuffs while being tried." White v. State, 900 So.2d 1249, 1256 (Ala.Crim.App.2004) (citations and quotations omitted). "'"A sheriff who is charged with the responsibility of safely keeping an accused has the right in his discretion to handcuff him when he is bringing him to and from the courtroom, when the handcuffs are removed immediately after he is taken into the courtroom."'" Id. (quoting Young v. State, 416 So.2d 1109, 1112 (Ala.Crim.App.1982), quoting in turn Moffett v. State, 291 Ala. 382, 384, 281 So.2d 630, 632 (1973)).

         Further, the circuit court properly instructed the jury at both the guilt phase and penalty phase that it could not consider in its deliberations Knight's jail clothing or physical restraints, and all jurors indicated that they could follow the instructions. "'[A]n appellate court "presume[s] that the jury follows the trial court's instructions unless there is evidence to the contrary."'" Thompson v. State, 153 So.3d 84, 158 (Ala.Crim.App.2012) (quoting Ex parte Belisle, 11 So.3d 323, 333 (Ala. 2008)).

         This Court finds no error, much less plain error, in the circuit court's actions. As such, this issue does not entitle Knight to any relief.

         II.

         Knight argues that the circuit court made multiple errors in addressing his motion raised pursuant to Batson v. Kentucky, 476 U.S. 79');">476 U.S. 79 (1986). Knight raised a Batson motion with respect to the prosecutor's striking of four black veniremembers -- I.K., A.B., M.C., and N.N. The circuit court granted the motion as to A.B. and N.N. and denied the motion as to I.K. and M.C. Knight argues that the circuit court erred: a) in its remedy of the prosecutor's Batson violation and b) in denying his Batson motion with respect to two of the struck veniremembers.

         Batson and its progeny prohibit discrimination based on race or gender in jury selection. See Ex parte Trawick, 698 So.2d 162, 167 (Ala. 1997). The Supreme Court of the United States has delineated a three-step, burden-shifting process for evaluating a Batson claim:

"First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. [Batson v. Kentucky, ] 476 U.S. [79, ] 96-97, 106 S.Ct. 1712[, 1723 (1986)]. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Id., at 97-98. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Id., at 98."

Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003).

"Within the context of Batson, a 'race-neutral' explanation 'means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.' Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). 'In evaluating the race-neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.' Id. '[E]valuation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within the trial judges's province."' Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869."

Allen v. State, 659 So.2d 135, 147 (Ala.Crim.App.1994).

         Discussions surrounding Knight's Batson motion were meandering, wandering back and forth between the merit of the motion itself and the parties' proposed solutions. This Court will summarize the events necessary for an understanding of the circuit court's actions.

         Following the striking of the jury, defense counsel raised a timely Batson motion. Specifically, defense counsel asserted that the State's first four peremptory strikes were used to remove black veniremembers, leaving only two blacks to serve on the jury. This Court has consistently held that "'[s]tatistics and opinion alone do not prove a prima facie case of discrimination. See Johnson v. State, 823 So.2d 1 (Ala.Crim.App.2001).'" Johnson v. State, 120 So.3d 1130, 1224 (Ala.Crim.App.2009) (quoting Banks v. State, 919 So.2d 1223 (Ala.Crim.App.2005)). Nevertheless, the circuit court found that defense counsel had met its burden to make a prima facie showing of discrimination.

"Where, as in this case, the trial court requires the opposing counsel to state reasons for the peremptory strikes without first requiring that a prima facie case of discrimination be established, this Court will review those reasons and the trial court's ultimate decision on the Batson motion without determining whether the moving party met its burden of proving a prima facie case of discrimination."

Harris v. State, 705 So.2d 542, 545 (Ala.Crim.App.1997) (citing McLeod v. State, 581 So.2d 1144 (Ala.Crim.App.1990)).

         I.K. was the first struck black veniremember to be discussed. The prosecutor explained that I.K. had been struck because "she had a son related to the Knight family," she "had problems with the death penalty[, ] [n]erves, not sleeping, [and] worr[ying]." (R. 304.) The circuit court found that the record was "pretty clear" on I.K. (R. 304.)

         The prosecutor explained that A.B. had been struck because she had a brother and a nephew who had been charged with murder.[1] The circuit court asked the prosecutor if he had struck other similarly situated veniremembers. The prosecutor responded that he had and began searching through the juror questionnaires. As the search was ongoing, the circuit court stated that if the prosecutor had struck everyone who was similarly situated, then the prosecutor's explanation would be race-neutral.[2] The circuit court then turned to defense counsel and asked if he was "alleging that there's anybody else that fits within that category that was not struck by the State." (R. 308-09.) Defense counsel answered, "I'm not aware of any other ones, Judge." (R. 309.) The prosecutor named six white veniremembers he had struck who had a friend or relative who had been charged with a crime. The circuit court asked defense counsel if he had further argument on his Batson motion with respect to A.B. and defense counsel answered, "No, sir." The circuit court declared the prosecutor's given reason to be race-neutral and moved to the next black veniremember struck by the prosecutor, M.C. The prosecutor, though, interrupted the circuit court, stating that he had found two whites, M.W. and S.P., who were not struck but who had a relative who had been charged with a crime.[3] The circuit court stated to the prosecutor that unless he could articulate a distinction between A.B. and the whites who were not struck from the venire, his given reason for A.B. would not be race-neutral.

         The prosecutor declared that he had no problem with "booting off" M.W. and S.P. so that all similarly situated veniremembers would be struck. (R. 318.) Defense counsel sought clarification on the proposal: "Well, just from a practical standpoint, if we do that, you're putting the two alternates on. So, we're going forward for a week[-long] trial without any alternates. Is that practically what we're doing?" (R. 319.) The circuit court responded that it was required to maintain two alternates and sought a proposed solution from defense counsel. Defense counsel requested that the improperly struck black veniremembers be placed on the jury.

         The circuit court then circled back to the remaining black veniremembers who were the subject of Knight's Batson motion -- N.N. and M.C. The prosecutor offered that N.N. had been struck because her ex-husband was serving a prison sentence for murder, which was similar to the charges against Knight, and that M.C. had been struck because she "gave a response when I was calling out those names [of potential witnesses]" and because she had served on a criminal jury but could not remember her verdict. (R. 325-26.)

         The circuit court found the prosecutor's given reasons for striking I.K. and M.C. to be race-neutral, but stated that he was still questioning the prosecutor's reasons for A.B. and N.N. The prosecutor offered the following:

"I'm saying the two that he raises, the two white people, I'm saying take them off. Take them off. What my last strikes were -- take those two off and make them alternates, or one alternate, and put the last two people I struck. That remedies putting those people, whatever their race is."

(R. 327.) Defense counsel countered that he believed the remedy was to place on the jury the improperly struck black veniremembers. This solution found disfavor with the prosecutor, who asked for a restriking of the jury.

         The circuit court pivoted to defense counsel, asking, "Do you want to restrike or can you come up with another option?" (R. 332.) The circuit court stated that the prosecutor's proposal was to remove the white jurors similarly-situated to A.B. and N.N., to place the current alternates on the jury, and to replace the alternates. Defense counsel demurred and reiterated that he believed the remedy was to place on the jury the improperly struck black veniremembers. The circuit court disagreed, but stated he would not force the prosecutor's proposal onto the defense. (R. 333-34.)

         Following a brief recess to discuss their options, defense counsel stated that he was "against putting the last two strikes from the defense and the State back on the jury, because [his] last strike was [M.E.], who answered she knows Marsha in the D.A.'s office." (R. 334-35.) Defense counsel continued, "You asked me if I had another solution to it. My solution is this. These are the State's two that's being questioned here. Why should the defense lose a strike?" (R. 335.) Defense counsel stated he wanted "[t]he State's last two strikes" placed on the jury. (R. 335.) The circuit court asked the prosecutor his thoughts on the counter-proposal, and the prosecutor responded, "No. Restrike then." (R. 336.)

         The circuit court accepted the prosecutor's answer and informed the parties that they were staying late that night to restrike the jury. The circuit court then held an off-the-record bench conference with the parties. When the parties returned to the record, defense counsel moved to dismiss the charges based on an alleged violation of Knight's right to a speedy trial. A brief hearing on the motion was held, after which the circuit court brought the venire into the courtroom. The circuit court explained that he had found a violation in jury selection, which would "require that two jurors that are currently in the jury box ... be taken off the jury and two jurors that are currently out in the audience ... be placed into the jury box." (R. 339.) The circuit court announced that M.G. and K.G. -- who were the State's last two strikes --would be added to the jury and that S.W. and S.P. would be removed.[4]

         A. Knight argues that the circuit court erred in its remedy of the prosecutor's Batson violation. After much discussion, the circuit court removed two jurors and placed the prosecutor's last two strikes onto the jury. Knight asserts that the circuit court's solution did not "respond to the equal protection concerns articulated in Batson," and also violated "the excluded jurors' right to equal protection." (Knight's brief, at 27-28.)

         Knight asserts repeatedly in his brief that the circuit court accepted the prosecutor's proposed solution. Indeed, the prosecutor was the first to mention removing the white jurors who had a friend or relative who had been charged with a crime and replacing them with the "last two strikes that I used." (R. 319.) For whatever reason, both the circuit court and the parties construed the prosecutor's suggestion as an offer to replace the two white jurors with the two alternates. (R. 319, 332, 334.) Further, the remedy that was eventually employed was suggested by defense counsel:

Defense: "You asked me if I had another solution to it. My solution is this. These are the State's two [strikes] that's being questioned here. Why should the defense lose a strike?"
Court: "So, you're proposing let the defense choose which two?"
Defense: "The State's last two strikes."

(R. 335, emphasis added.) The prosecutor was clearly opposed to this remedy, and his apparent acceptance of the circuit court's actions does not appear in the record. (R. 336.)

         Determining which party proposed the remedy is unnecessary, however, because both paths lead to the same standard of review. Either defense counsel proposed the remedy or defense counsel agreed to it. In either case, any error in the circuit court's actions would be invited. See Jackson v. State, 177 So.3d 911, 933 (Ala.Crim.App.2014); Turner v. State, 473 So.2d 665, 666 (Ala.Crim.App.1985). "Under the doctrine of invited error, 'the appellant cannot allege as error proceedings in the trial court that were invited by [him] or that were a natural consequence of [his] own action.'" Jackson, 177 So.3d at 932 (quoting Inmin v. State, 668 So.2d 152, 155 (Ala.Crim.App.1995), citing in turn Bamberg v. State, 611 So.2d 450, 452 (Ala.Crim.App.1992)). "An invited error is waived, unless it rises to the level of plain error." Whitehead v. State, 777 So.2d 781, 806 (Ala.Crim.App.1999) (citations and quotations omitted). Consequently, this issue will be reviewed for plain error only.

         Tucked away in a footnote in Batson, the Supreme Court of the United States offered two possible solutions to a Batson violation:

"In light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today. For the same reason, we express no view on whether it is more appropriate in a particular case, upon a finding of discrimination against black jurors, for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case ... or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire ...."

Batson, 476 U.S. at 99 n.24 (citations omitted). Alabama, though, has never construed this footnote in Batson to be an exhaustive list of solutions. In Dorsey v. State, 881 So.2d 460 (Ala.Crim.App.2001), this Court recognized that courts in Alabama have the discretion to fashion an appropriate remedy:

"Alabama is one of the jurisdictions that leave the choice of the method to deal with a Batson violation to the sound discretion of the trial court. See Ex parte Branch, [526 So.2d 609 (Ala. 1987)]. Alabama has never required that the trial court follow a certain procedure. We believe that the method used will depend on the facts presented in each case."

Dorsey, 881 So.2d at 489, rev'd on other grounds, Ex parte Dorsey, 881 So.2d 533 (Ala. 2003).

         This Court is unaware of any court that has either approved of or condemned the remedy used here. Consequently, whether the remedy employed in this case was an abuse of discretion would be an issue of first impression in this State. "It is well settled that plain-error review is an inappropriate mechanism to decide issues of first impression or to effectuate changes in the law." See United States v. Olano, 507 U.S. 725, 734 (1993) (noting that a "court of appeals cannot correct an error [under the plain-error doctrine] unless the error is clear under current law"); United States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013) ("For a plain error to have occurred, the error must be one that is obvious and is clear under current law." (citations and quotations omitted)).

         Moreover, the circuit court's intent was clear -- to ensure that all veniremembers were treated equally on the basis of race. The circuit court's remedy had the added effect of sanctioning the State by placing the prosecutor's final two strikes onto the jury. Based on the facts presented in this case, the circuit court's remedy did not constitute an abuse of discretion. See Dorsey, 881 So.2d at 489. As such, this issue does not entitle Knight to any relief.

         B.

         Knight argues that the circuit court erred in denying his Batson motion with respect to I.K. and M.C. Knight asserts that the circuit court ignored the fact that it had found some of the reasons given by the State for strikes in this case pretextual and that the Houston County District Attorney's Office has a history of Batson violations.[5] Knight also asserts that some of the prosecutor's given reasons for striking I.K. and M.C. are inaccurate and that the basis for those reasons could have been more fully explored had the prosecutor engaged in meaningful voir dire with I.K. or M.C. Finally, Knight asserts that the State displayed overt racial animus in its discussion of a possible restriking of the jury.[6]

         The State offered race-neutral reasons for both I.K. and M.C. The prosecutor explained that I.K. had been struck because "she had a son related to the Knight family," she "had problems with the death penalty[, ] [n]erves, not sleeping, [and] worr[ying]." (R. 304.) The prosecutor explained that M.C. had been struck because she "gave a response when I was calling out those names [of potential witnesses]" and because she had served on a criminal jury but could not remember her verdict. (R. 325-26.) All these given reasons would be race-neutral. See Butler v. State, 646 So.2d 689, 690 (Ala.Crim.App.1993) (being acquainted with defendant's family is race-neutral (citing Jackson v. State, 549 So.2d 616 (Ala.Crim.App.1989)); Council v. State, 682 So.2d 495, 498 (Ala.Crim.App.1996) (opposition to death penalty is race-neutral); Bohannon v. State, 222 So.3d 457, 482 (Ala.Crim.App.2015) (concern about serving as a juror over medical conditions is race-neutral); Temmis v. State, 665 So.2d 953, 954 (Ala.Crim.App.1994) (being acquainted with a witness in the case is race-neutral). Because the circuit court's findings on this issue largely turned on credibility, this Court must give these findings great deference. See Ex parte Branch, 526 So.2d 609, 625 (Ala. 1987) (quoting Batson, 476 U.S. at 98).

         Further, the State's providing race-neutral reasons for its strikes of I.K. and M.C. shifted the burden to Knight to make a showing that those reasons were a sham or pretextual. See Miller-El, 537 U.S. at 328-29. Defense counsel, however, made no such showing at all; Knight's challenges to the prosecutor's reasons for striking I.K. and M.C. on the basis that they were pretextual are being raised for the first time on appeal. As a result, the record does not support his alleged evidence of purposeful discrimination. For example, the veniremembers were presented a list of potential witnesses and were asked if any were familiar to them. Among the names listed were "Julius Roy" and "Dwon or Jwon Roy." (R. 195.) M.C. answered that she knew "Camar Roy." (R. 195.) Camar Roy was not listed by the prosecutor, and Knight asserts for the first time on appeal that the prosecutor's reason for striking M.C. is not supported by the record. Yet this argument ignores the fact that it was Knight's burden to show that the prosecutor's reasons were a pretext or a sham. See Miller-El, 537 U.S. at 328-29. Perhaps the circuit court and the parties were aware of a relationship between Camar Roy and the listed potential witnesses or that "Camar" is another name for one of the listed potential witnesses; the race-neutral reason given by the prosecutor was apparently not suspect enough for defense counsel to challenge it below.

         Additionally, this Court points out that, but for the prosecutor's own research and forthrightness with the circuit court, it appears that all of his given reasons would have been found race-neutral by the circuit court. "[E]valuation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.'" Hernandez v. New York, 500 U.S. 352, 365 (1991) (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985), citing in turn Patton v. Yount, 467 U.S. 1025, 1038 (1984)).

         Knight has not carried his burden to show that the circuit court's findings with respect to the prosecutor's striking of I.K. and M.C. were clearly erroneous. As such, this issue does not entitle him to any relief.

         III.

         Knight argues that the circuit court erroneously relied on Knight's own self-evaluation in denying his request for an evaluation of his competency to stand trial. Knight asserts that he has a long history of mental-health issues that should have created a reasonable doubt regarding his competency, thus triggering a competency evaluation. On appeal, Knight cites medical records indicating prior diagnoses of major depressive disorder with psychotic features, schizoaffective disorder, and bipolar disorder.

         Two weeks before trial, defense counsel moved for a court-ordered mental evaluation. In that motion defense counsel asserted that they questioned Knight's competency to stand trial based on an evaluation performed by Dr. Daniel Grant. The circuit court held a hearing on the motion four days later. Defense counsel presented the circuit court with a two-page report produced by Dr. Grant. After a brief recess to give the circuit court and the State an opportunity to review the report, the circuit court stated:

"I will note from the report that there's nothing in here that indicates to me, under the rules of criminal procedure and the case law as I understand it, that he is currently incompetent to stand trial.
"The final conclusion is, 'All of the above information leads me to question Mr. Knight's ability to logically analyze the plan with forethought and to work with and understand the reasoning and importance of his attorneys' advice and understand the importance of following their advice for the defense.'
"Also, let me note for the record, by reference, in the event of an appeal, for review of this case, I will incorporate by reference all of the records on Mr. Knight's case -- this same case when it was pending in Houston County for, I think, approximately three to four years before it was determined that venue would be proper here.
"I was the trial judge that entire time on the case. ...
"....
"So, I have had Mr. Knight in the courtroom before, both here and in Dothan, and he's never exhibited any signs of disrespect to the Court or to me personally or to his attorneys or the prosecutor or anyone else involved in the case. He's always sat respectfully and done, from where I sit, everything that anyone else in any other type of case would do."

(Sept. 16, 2016 R. 6-8.)[7]

         Defense counsel represented to the circuit court that after the first day of Dr. Grant's evaluation, Knight informed defense counsel that he no longer desired to participate in the evaluation. Defense counsel stated that he filed the motion based on Knight's withdrawing from the evaluation, Dr. Grant's findings, and what he considered to be illogical decision-making. Here defense counsel referenced Knight's writing letters to the district attorney stating that he was innocent yet wished to plead guilty and Knight's telling defense counsel he did not want a motion filed pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). The circuit court pointed out that Knight had already undergone a competency evaluation by Dr. Doug McKeown, who had determined in 2012 that Knight was competent to stand trial. The circuit court also noted that Knight had been continuously incarcerated since his evaluation by Dr. McKeown, which meant that Knight's medical, physical, and nutritional needs had been met. Defense counsel acknowledged to the circuit court that Dr. Grant had not declared Knight incompetent but maintained that Dr. Grant's report raised a question as to Knight's competency.

         The State left the hearing so the circuit court could conduct an ex parte hearing with Knight. The circuit court engaged Knight on his mental health. (Sept. 16, 2016 R. 32-42.) Knight made it clear that he was ready for trial and that he was not interested in pursuing any issues as to his competency. When asked about his lack of participation with Dr. Grant, Knight indicated that he believed he had finished Dr. Grant's testing but admitted that he was frustrated with Dr. Grant because he did not see the relevance of some of Dr. Grant's testing. The circuit court encouraged Knight to participate in his defense and asked Knight if he was dissatisfied with defense counsel. Knight answered, "Not at this time." (Sept. 16, 2016 R. 35.) Following the ex parte hearing, the circuit court stated: "With everything discussed on the record, as well as the Frazier [v. State, 758 So.2d 577 (Ala.Crim.App.1999), ] case, as well as what was discussed in the ex parte hearing, I am more than satisfied that we can go forward without any issue, as we sit here today, of his competency to stand trial." (Sept. 16, 2016 R. 43.)

         "'Trial of a person who is incompetent violates the due process guarantees.'" Blankenship v. State, 770 So.2d 642, 643 (Ala.Crim.App.1999) (quoting Ex parte Janezic, 723 So.2d 725, 728 (Ala. 1997)). Rule 11.1, Ala. R. Crim. P., states: "A defendant is mentally incompetent to stand trial or to be sentenced for an offense if that defendant lacks sufficient present ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant." Rule 11.6(a), Ala. R. Crim. P., states, in pertinent part:

"After the examinations have been completed and the reports have been submitted to the circuit court, the judge shall review the reports of the psychologists or psychiatrists and, if reasonable grounds exist to doubt the defendant's mental competency, the judge shall set a hearing not more than forty-two (42) days after the date the judge received the report."

         In Jackson v. State, 791 So.2d 979 (Ala.Crim.App.2000), this Court recognized:

"Clearly, 'a trial court has an independent duty to inquire into an accused's state of mind when there are reasonable grounds to doubt the accused's competency to stand trial.' Ex parte LaFlore, 445 So.2d 932, 934 (Ala. 1983). However, '[i]t is the burden of a defendant who seeks a pretrial competency hearing to show that a reasonable or bona fide doubt as to his competency exists.' Woodall v. State, 730 So.2d 627, 647, (Ala. Cr. App. 1997), aff'd. in relevant part, 730 So.2d 652 (Ala. 1998)(emphasis added). '"The determination of whether a reasonable doubt of sanity exists is a matter within the sound discretion of the trial court and may be raised on appeal only upon a showing of an abuse of discretion."' Id. See also Tankersley v. State, 724 So.2d 557, 564 (Ala. Cr. App. 1998)."

Jackson, 791 So.2d at 994.

         The premise of Knight's argument on appeal -- that the circuit court denied "defense counsel's request for a competency evaluation based on Mr. Knight's own assurances that he was competent to stand trial" -- is misleading. (Knight's brief, at 33.) Indeed, Knight assured the circuit court he was ready for trial and that he was not interested in pursuing any issues related to his competency. But, at the time the circuit court denied defense counsel's request, the circuit court also had before it a detailed forensic-evaluation report prepared by Dr. McKeown. (C. 112-18.) Dr. McKeown determined that Knight was "fully capable of understanding, comprehending, and appreciating the current charges as well as the range and nature of possible penalties"; that Knight was aware of the roles of the judge, jury, defense counsel, and district attorney; that Knight "demonstrate[d] a reasonable ability to understand and appreciate court procedure and behavior"; that Knight was "spending time in the law library doing some of his own research"; that Knight was capable of sharing details from his perspective on his charged offenses; that Knight was capable of recognizing the planning of legal strategies; and that Knight demonstrated a "fully reasonable capacity for interacting [with] and relating to defense counsel." (C. 116-17.) In short, Dr. McKeown concluded that Knight was "capable of assisting defense counsel and assuming the role of a defendant in a judicial proceeding." (C. 117.) The circuit court also cited its extensive interactions with Knight, which had occurred over several years before his trial.

         Dr. Grant, whose report is included in the record on appeal, wrote that his interactions with Knight, coupled with Knight's treatment history, led him "to question Mr. Knight's ability to logically analyze, to plan with forethought and to work with, understand the reasoning and importance of his attorneys['] advice and underst[an]d the importance of following their advice for his defense." (C. 1599.) As the circuit court noted, Dr. Grant did not conclude that Knight was incompetent to stand trial.

         The circuit court's judgment was supported by an expert report and its own extensive interactions with Knight. This Court cannot say that the circuit court abused its discretion in denying Knight a second competency evaluation. See Frazier v. State, 758 So.2d 577, 585-93 (Ala.Crim.App.1999). As such, this issue does not entitle Knight to any relief.

         IV.

         Knight argues that he was denied a fair trial because, he says, half the jurors expressed a racial bias against black defendants. Veniremembers were presented with the following questions on their juror questionnaires: "Do you think blacks are more likely to be involved in crime than whites?" and "Do you think blacks are more likely to be involved in crimes of violence than whites?" Six selected to Knight's jury answered these questions in the affirmative. Knight did not raise this claim below. Consequently, it will be reviewed for plain error only.

         Knight asserts that these six jurors, through their answers on the juror questionnaires, displayed an "unambiguous racial bias" against blacks. (Knight's brief, at 44.)[8] This Court disagrees. Instead, the jurors' answers indicate merely their own perception of criminal demographics. The jurors did not indicate, for example, that they believed a black person was more likely to be involved in crime or violent crime because he or she was black. Further, all jurors who sat in judgment of Knight indicated on their juror questionnaires that they understood it was their role to determine the facts, that they believed Knight was innocent until proven guilty, that they could follow the instructions of the circuit court, and that they could render an impartial verdict based solely on the evidence.

         Knight has made no showing of racial bias on the part of the jurors. This Court finds no evidence or error, plain or otherwise, in the circuit court's actions. As such, this issue does not entitle Knight to any relief.

         V.

         Knight argues that the circuit court erred in admitting allegedly inadmissible hearsay statements through his recorded statement. Specifically, Knight asserts that the officers conducting the interview repeated statements to Knight that were originally made to them by nontestifying witnesses. Knight also argues that the presentment to the jury of these statements violated the Confrontation Clause. Knight made multiple motions for a mistrial with respect to the recording, which were denied.

         Knight states in his brief on appeal that defense counsel "repeated[ly] object[ed] to the videotaped statement in its entirety and the specific inadmissible hearsay statements." (Knight's brief, at 49.) Although Knight's assertion is true, a careful review of the record shows that Knight's claim on appeal is entitled to a review for plain error only. Knight filed a pretrial motion to suppress the statements on the grounds that his statements to law-enforcement officers were in violation of the Fourth, Fifth, and Fourteenth Amendments, that his statements were involuntary, and that all evidence had been seized illegally. (C. 639.) The circuit court conducted a suppression hearing in the middle of trial. (R. 603-47.) Defense counsel did not present any argument at the hearing, instead stating: "Judge, we would just like to have our objection down ... if [the prosecutor] plans on introducing [the statement] at trial." (R. 646-47.) Based on the line of questioning from defense counsel and the circuit court's ruling, it appears Knight was challenging the voluntariness of his statement and whether he was denied his right to counsel. (R. 646.)

         At trial Knight made the following objection as the State was preparing to admit Knight's statement:

"Judge, I reviewed that statement again last night. And I've had the suppression issue that I understand has been overruled. However, in that statement, on page -- I believe on the transcript, on page 25, if I'm not mistaken, 25 or 26, in that statement, John Crawford says [Duke Wingard] says certain things. I'm going to object to a co-defendant -- what a co-defendant said coming in."

(R. 1505-06.) The circuit court initially ruled that the statement cited by defense counsel was not hearsay and stated that it would give the jury a limiting instruction. Before the statement was presented to the jury, however, the circuit court reconsidered its ruling. The circuit court recommended to the State that it redact that portion of Knight's statement; the State readily agreed, and the parties discussed the logistics of editing the recording and the typed transcript. (R. 1519.) The parties resolved to mute the recording during the objectionable statement and to remove from the transcript the page -- page 25 -- that contained it. The parties subsequently agreed to remove pages 34 and 41 and the bottom of page 46. The circuit court then gave defense counsel an opportunity to review the redacted transcript before playing the recording for the jury. (R. 1530.) During the playing of the recording, defense counsel twice objected to portions of the recording after the jury had already heard the allegedly inadmissible statements; defense counsel had not previously objected to those portions of the recording. In both instances, defense counsel requested a mistrial. The ...


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