from Henry Circuit Court (CC-16-111; CC-16-112; CC-16-113)
WINDOM, Presiding Judge.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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
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).
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."
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. , 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).
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
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.)
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
"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
"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.
(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.
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.
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.
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).
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)).
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)).
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.
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
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
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.
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
Harris v. State, 705 So.2d 542, 545
(Ala.Crim.App.1997) (citing McLeod v. State, 581
So.2d 1144 (Ala.Crim.App.1990)).
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.
prosecutor explained that A.B. had been struck because she
had a brother and a nephew who had been charged with
murder. 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. 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. 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.
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.
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.)
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
(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.
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.)
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.)
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
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.)
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
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
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.)
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
away in a footnote in Batson, the Supreme Court of
the United States offered two possible solutions to a
"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
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
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)).
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
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. 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
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.
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.
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)).
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.
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.
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
"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
(Sept. 16, 2016 R. 6-8.)
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.
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.)
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."
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.
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.
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
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.
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.
asserts that these six jurors, through their answers on the
juror questionnaires, displayed an "unambiguous racial
bias" against blacks. (Knight's brief, at
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.
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.
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.
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.
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