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Flagg v. State

Alabama Court of Criminal Appeals

September 7, 2018

Andrea Duhreal Flagg
v.
State of Alabama

          Appeal from Houston Circuit Court (CC-16-969)

          JOINER, JUDGE.

         Andrea Duhreal Flagg appeals his conviction for murder, see § 13A-6-2, Ala. Code 1975. He was sentenced as a habitual felony offender to 50 years' imprisonment. He was also ordered to pay a fine of $2, 000, a $1, 000 victims compensation assessment, and a $750 bail-bond fee.

         Statement of Facts and Procedural History

         Because Flagg does not challenge the sufficiency of the evidence in his case, only a brief recitation of the facts underlying his conviction is necessary here. The evidence adduced at trial established the following.

         On December 12, 2015, a fight broke out between a group of four or five people at the intersection of Wheat Street and Whitton Street in Dothan. During the course of that fight, the victim, James Gillard, was shot twice. The first shot hit his left buttock and pierced his abdominal cavity causing heavy internal bleeding. The second shot hit Gillard's right shoulder.

         Sergeant William Wozniak with the Dothan Police Department was dispatched to the scene of the shooting. Upon his arrival, he found Gillard and attempted to stop the bleeding. Gillard was taken to the Southeast Alabama Medical Center, where he later died.

         An investigation into the shooting led law-enforcement officers to James Allen, who was present at the shooting and who recorded the incident on his cellular telephone. The video showed Flagg, who was not involved with the fight, approach the group that was fighting with a gun in his hand. Flagg fired two shots toward the group, but his gun misfired. After he "racked" the gun, Flagg shot Gillard twice. In the video, Flagg was wearing a sweatshirt with "JNCO" on it and a pair of pants with a yellow pocket.

         As a result of the footage in the video, law-enforcement officers executed a search warrant on the residence where Flagg was staying. During their search, officers found the same "JNCO" sweatshirt that Flagg was seen wearing in the video. Law-enforcement officials later located Flagg, who was wearing a pair of pants with a yellow pocket, and placed him under arrest.

         On April 8, 2016, the Houston County grand jury indicted Flagg for murder, see § 13A-6-2, Ala. Code 1975. On June 3, 2016, Flagg was formally arraigned and entered a plea of not guilty by reason of mental disease or defect. Six days later, he filed a motion for a court-ordered mental evaluation through his court-appointed counsel, M. John Steensland III; that motion was granted on June 10, 2016. Thereafter, on June 16, 2016, Flagg's case was continued pending the mental evaluation.

         On November 28, 2016, Flagg was interviewed at the Houston County jail by Dr. Sarah Ryan with the Taylor Harden Secure Medical Facility. On February 17, 2017, Flagg filed a motion to continue his trial. Flagg's counsel noted in the motion that a mental examination had been ordered on June 10, 2016, and that the request for the continuation was for the purpose of allowing the mental examination to be completed. On February 21, 2017, Flagg's motion to continue his trial was granted. On March 8, 2017, Flagg's trial was continued for the defendant, for the purpose of awaiting the report of Flagg's mental evaluation.

         On April 3, 2017, following her interview with Flagg, Dr. Ryan drafted a report in which she stated that she believed that Flagg was competent to stand trial. On April 17, 2017, a hearing was set for May 26, 2017, to address Flagg's mental-evaluation report. On May 26, 2017, the parties stipulated to Dr. Ryan's report finding Flagg competent to stand trial. Based on that report, the circuit court determined that Flagg was competent to stand trial.

         On June 15, 2017, the circuit court continued the case at the request of the State because one of the State's material witnesses was out of town. On July 14, 2017, Flagg filed a pro se motion to dismiss, which included an assertion that he had been denied his right to a speedy trial. That same day, Flagg filed a pro se motion demanding a trial, as well as a motion for a waiver of counsel along with a letter to the circuit court requesting that he be permitted to represent himself with the assistance of counsel.

         Flagg's pro se motion to dismiss was denied on July 17, 2017. That same day, the court entered an order stating that Flagg's motion demanding a trial was noted and setting a hearing date for Flagg's motion to waive counsel.

         On August 4, 2017, the circuit court conducted a hearing pursuant to Faretta v. California, 422 U.S. 806');">422 U.S. 806');">422 U.S. 806');">422 U.S. 806 (1975), on Flagg's motion to waive counsel. During that hearing, the court told Flagg that it was dangerous for him to represent himself and advised him not to do so. Despite those warnings, Flagg informed the court that he wanted to waive his right to counsel. Flagg agreed, however, that Steensland would serve as his standby counsel. The circuit court then granted Flagg's request to represent himself.

         Following the Faretta hearing, Flagg informed the court that he was demanding a speedy trial. In considering that request, the circuit court explained that, except for one request for a continuance by the State, the defense had requested all other continuances, in particular continuances to allow time for the completion of the competency evaluation, which his counsel had requested. The court then noted for the record that Flagg was representing himself with Steensland as standby counsel, that he was waiving any competency issues and demands to go to trial, and that trial was set for September 18, 2017.

         Just before his trial, Flagg moved again to dismiss the charges against him based on the denial of his right to a speedy trial. That motion was denied.

         On September 18, 2017, Flagg's trial began. On September 20, 2017, the jury found Flagg guilty of murder as charged in the indictment. Flagg was sentenced as a habitual felony offender to 50 years' imprisonment. Flagg filed a timely notice of appeal.

         Discussion

         Flagg, who is represented by counsel on appeal, argues that he was denied his right to counsel under the Sixth Amendment to the United States Constitution. (Flagg's brief, pp. 7-19.) Specifically, Flagg contends, among other things, that the circuit court erroneously permitted him to represent himself without first informing him that he could withdraw his waiver of his right to counsel at any time. (Flagg's brief, pp. 7-11.)[1]

         It is well settled that, under the Sixth Amendment to the United States Constitution, an "indigent defendant in a criminal trial has a constitutional right to the assistance of appointed counsel." Martinez v. Court of Appeal of California, 528 U.S. 152, 158 (2000) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). At the same time, however, the United States Supreme Court has also held that, under the Sixth Amendment, a defendant in a criminal trial has a constitutional right of self-representation. See Faretta, 422 U.S. at 832 (recognizing a constitutional right of self-representation, but also recognizing that "the right of an accused to conduct his own defense seems to cut against the grain of this Court's decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel").

         In Faretta, the United States Supreme Court held that a defendant has a Sixth Amendment right to represent himself in a criminal case. In order to conduct his or her own defense, the defendant must "knowingly" and "intelligently" waive his or her right to counsel, because, in representing himself or herself, a defendant is relinquishing many of the benefits associated with the right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. The defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (citations omitted).

         This Court has recently recognized:

"The Alabama Rules of Criminal Procedure have incorporated and expanded the accused's protections announced in Faretta. Rule 6.1, Ala. R. Crim. P., permits the right to counsel to be waived after the trial court has ascertained that the accused knowingly and intelligently desires to forgo his right to counsel. Also, the rule mandates that the trial court inform the accused that the waiver may be withdrawn and counsel appointed or ...

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