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Lindsay v. State

Alabama Court of Criminal Appeals

March 8, 2019

Stephon Lindsay
v.
State of Alabama

          Appeal from Etowah Circuit Court (CC-13-652)

          KELLUM, JUDGE.

         The appellant, Stephon Lindsay, was convicted of murdering his 21-month-old daughter, Maliyah Lindsay, an offense defined as capital by § 13A-5-40(a)(15), Ala. Code 1975, because Maliyah was less than 14 years of age. The jury unanimously recommended that Lindsay be sentenced to death. The circuit court followed the jury's recommendation and sentenced Lindsay to death.[1] This appeal, which is automatic in a case involving the death penalty, followed. See § 13A-5-55, Ala. Code 1975.

         The State's evidence tended to show that on March 12, 2013, police discovered Maliyah's body in a wooded area after Lindsay confessed to murdering her and told police where he had taken her body. Dr. Valerie Green, medical examiner with the Alabama Department of Forensic Sciences, testified that Maliyah died of "multiple sharp force injuries" to her neck and that the cuts severed her jugular vein and carotid artery. (R. 1811.) The cuts were so deep, Dr. Green said, that Maliyah's spinal cord was visible. Maliyah also had cuts on her chest and chin, defensive wounds on her hands, and bruising around her mouth, which was consistent with someone holding his hand over Maliyah's mouth. (R. 1786.)

         Tasmine Thomas, Maliyah's mother, testified that she and Lindsay had two children together and that Maliyah was born in June 2011. She testified that at the time Maliyah was murdered she and Lindsay and the children lived in a two-story apartment on White Avenue in Gadsden. On March 5, 2013, she said, she stayed in the apartment all day and went to the grocery store that evening. When she got back from the store she started feeling sick and went to bed. Lindsay told her that his sister was going to take Maliyah to go stay with her so that Thomas could have a break. Thomas testified:

"[Prosecutor]: Was there anything unusual about the way that [Lindsay] was acting between the time that you last saw Maliyah and when you wanted to go get her?
"[Thomas]: No. He was -- He did what he normally does. Like, he was cleaning a lot downstairs. He was cleaning a lot.
"[Prosecutor]: Was that unusual?
"[Thomas]: No. He cleaned a lot already. But he was doing it a little bit too much.
"[Prosecutor]: Why do you say a little bit too much?
"[Thomas]: Because I smelled a lot of bleach. It was strong.
"[Prosecutor]: Did you ask him about it?
"[Thomas]: I asked him why was he using so much bleach.
"[Prosecutor]: What did he tell you?
"[Thomas]: He said because he liked the smell of bleach when he cleans. Like, he was using bleach Pine-sol."

(R. 1569-70.) Thomas said that on March 11, 2013, she asked Lindsay when he was going to bring Maliyah home. She said that Lindsay left their apartment early that morning and told her that he was going to get Maliyah. She waited for Lindsay about three hours and then telephoned Lindsay's sister. His sister told her that Maliyah had not been with them and that she had not seen Maliyah since March 5. Thomas then telephoned emergency 911.

         Det. Thomas Hammonds with the City of Gadsden Police Department testified that he was assigned to investigate the case and that police tried to locate Lindsay and tracked his cellular telephone to an address in Clayton. When Lindsay came out of the door of the residence he asked Lindsay if Maliyah was okay and Lindsay responded, "No, she's not okay" ... "She is not alive." (R. 1600.) He took Lindsay back to the police station and advised him of his Miranda[2] rights. Lindsay confessed that he killed Maliyah by cutting her neck, and he told police that he put her body in a bag and took the body to a wooded area. He also said that he took several weapons, an axe and several swords, and disposed of them near the body.

         In the circuit court's sentencing order, the court set out the following facts surrounding Lindsay's confession:

"The videotape of [Lindsay's] statement to police was admitted into evidence at trial, in which [Lindsay] talked at length about his religion, Yahweh ben Yahweh, and how he came to be a believer. He said that he was told by Yahweh to kill his daughter. He said that the reason he had to kill Maliyah was because she had become like an idol to him because of her beauty and innocence, and because he loved her too much. Lindsay described how he murdered his daughter, cutting her throat and nearly decapitating the child. He told Hammonds that he used an axe or hatchet to kill the child on the evening of March 5, 2013, at the apartment on White Avenue, while Tasmine and their infant daughter were sleeping upstairs. He said the murder took place in the room beside the kitchen. Lindsay told detectives that during the murder, Maliyah tried to scream but he held his hand over her mouth.
"Lindsay said that he placed Maliyah's body in a tote bag, and put it on the front seat of his car when he left the apartment. He said that he waited until very late to leave with the body, then just started driving. He said he left her body in the bag in the woods off the side of the road. He took the hatchet and his swords to another street and threw them into the woods. He then used Clorox and washing powders to clean up the blood in the apartment. He left the apartment on March 11, 2013, after telling Tasmine he was going to pick up Maliyah at this sister's house. He said that he sold his car, but that he never intended to run away, he just needed the money. Lindsay said he always intended to tell the truth about what he had done to Maliyah.
"Following the directions Lindsay gave, Gadsden police officers went to a wooded area off Plainview Street and began to search. They found Maliyah's body near a bucket in the woods containing a dead puppy. After searching that area, officers brought Lindsay to the scene. He directed them to an area on the side of the mountain off Brentwood Avenue, where he said he threw the hatchet and the swords into the woods. Investigators from Gadsden Police Department, the Etowah County Sheriff's Department, the Etowah County Drug Enforcement Unit, and agents from the Center for Applied Forensics at Jacksonville State University conducted an extensive search of the heavily wooded hillside that went on throughout the night and the following day. Officers found two knives or swords that had belonged to Lindsay, but the hatchet was not recovered, due to the steep terrain and dense woods. On the other side of the road, in a ravine, officers recovered several torn pieces of paper and/or cardboard containing [Lindsay's] religious writings, as well as an empty Clorox bottle."

(C. 115-16.)

         In his defense, Lindsay presented the testimony of Dr. Robert Bare, a psychologist at Taylor Hardin Secure Medical Facility ("Taylor Hardin"). Dr. Bare testified that he evaluated Lindsay and that it was his opinion that Lindsay suffered from paranoid schizophrenia with a personality disorder.

"[Dr. Bare]: [W]hen [Lindsay] initially came to [Taylor Hardin] he had -- Mr. Lindsay had exhibited delusions of grandiose delusions that he was the son of Yahweh, that he had been -- that some of the acts that we will talk about in a minute were prompted by his belief in Yahweh and essentially commanded to him by Yahweh."

(R. 1856.) Lindsay was placed on medication and improved, Dr. Bare said.

         On cross-examination, Dr. Bare stated that he spoke with many of Lindsay's family members.

"[Prosecutor]: So based upon your conversations with all these family members, none of them were able to tell you about any bizarre or overtly psychotic behavior by Mr. Lindsay before he killed this little girl, right?
"[Dr. Bare]: Correct.
"[Prosecutor]: So all of a sudden he gets down to Taylor Hardin and he walks in the door hallucinating?
"[Dr. Bare]: Apparently. That was in his report, yes.
"....
"[Prosecutor]: And people do sometimes feign, fake, or exaggerate psychotic symptoms in order to get a certain result, do they not?
"[Dr. Bare]: Yes, sir."

(R. 1901-02.) Dr. Bare also testified that he had not seen Lindsay experience any hallucinations but relied on what the staff at Taylor Hardin and Lindsay had told him. He further stated that before Lindsay was brought to Taylor Hardin and while he was incarcerated at the county jail he exhibited no "overt sign of any kind of psychotic behavior." (R. 1903.) He could not say if the hallucinations were caused by Lindsay's mental-health issues or by Lindsay's substance abuse.

         The jury found Lindsay guilty of murdering Maliyah. A presentence report was prepared and a sentencing hearing was held before the same jury. The jury unanimously recommended a sentence of death after it found two aggravating circumstances: (1) that Lindsay had previously been convicted of a felony involving the use or threat of violence to the person, § 13A-5-49(2), Ala. Code 1975; and (2) that the murder was especially heinous, atrocious, or cruel as compared to other capital murders, § 13A-5-49(8), Ala. Code 1975.[3] The circuit court issued an order sentencing Lindsay to death. This appeal followed.

         Standard of Review

         Because Lindsay has been sentenced to death, this Court must search the record of the trial proceedings for "plain error." See Rule 45A, Ala. R. App. P. 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."

         In discussing the scope of plain error, this Court in Johnson v. State, 120 So.3d 1130 (Ala.Crim.App.2009), stated:

"'The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is "particularly egregious" and if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." See Ex parte Price, 725 So.2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Crim.App.1997), aff'd, 723 So.2d 770 (Ala. 1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Crim.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala. 1993), on remand, 620 So.2d 714 (Ala. Crim. App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993).'
"Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala. 2001). Although the failure to object will not preclude our review, 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)."

Sale v. State, 8 So.3d 330, 345 (Ala.Crim.App.2008).

         We now review the issues raised by Lindsay in his brief to this Court.

         Guilt-Phase Issues

         I.

         Lindsay first argues that the circuit court committed reversible error by failing to conduct an "appropriate inquiry" into his competency to stand trial and that the court's failure to do so violated federal and state law.

         The record shows that in April 2013 Lindsay moved that he be examined by a mental health expert. (1 Supp. 50-52.) In this motion, Lindsay requested that he be evaluated to determine whether he had the present ability to assist in his defense or whether he was competent to stand trial. The circuit court issued an order on April 15, 2013, directing that Lindsay be evaluated to determine his competency to stand trial and his mental state at the time of the offense. (1 Supp. 57-59.) Lindsay was transferred to Taylor Hardin in October 2013. Dr. Bare examined Lindsay and determined that Lindsay was a paranoid schizophrenic. Lindsay was prescribed medication for that condition and seemed to improve.

         Several months later Lindsay was returned to the Etowah County jail. In December 2015, Lindsay filed a second motion for a mental examination to determine his competency to stand trial and argued that his attorney had "noticed the deterioration in [Lindsay]" since Lindsay had returned to the county jail. (C. 43-45.) The circuit court granted the motion, and Lindsay was examined a second time to determine his competency to stand trial. (C. 46-47.)

         At a pretrial hearing in February 2016, the circuit court noted that Lindsay had been examined twice at Taylor Hardin. The circuit court noted that Dr. Bare had determined that Lindsay was competent to stand trial; that Dr. Bare's report had been filed under seal in December 2015, after the second mental examination; and that Dr. Bare's letter of December 18, 2015, also discussed that Lindsay was competent to stand trial. (R. 174.)[4]

         The defense also called Dr. Bare to testify in its casein-chief. Dr. Bare testified on cross-examination that it was his opinion that Lindsay was competent to stand trial. (R. 1898-99.) Moreover, Lindsay filed several pro se motions during the course of the proceedings. Lindsay's motion for a new trial was articulate and well reasoned.[5]

         On appeal, Lindsay argues that based on the record the circuit court was obliged to hold a formal competency hearing.

"The United States Supreme Court in Pate v. Robinson[, 383 U.S. 375 (1966), ] held that a trial court must conduct a competency hearing when it has a 'reasonable doubt' concerning the defendant's competency to stand trial. That Pate holding is incorporated into § 15-16-22, Ala. Code 1975. That section reads, in pertinent part:
"'(a) Whenever it shall be made known to the presiding judge of a court by which an indictment has been returned against a defendant for a capital offense, that there is reasonable ground to believe that such defendant may presently lack the capacity to proceed or continue to trial, as defined in Section 22-52-30, or whenever said judge receives notice that the defense of said defendant may proceed on the basis of mental disease or defect as a defense to criminal responsibility; it shall be the duty of the presiding judge to forthwith order that such defendant be committed to the Department of Mental Health and Mental Retardation for examination by one or more mental health professionals appointed by the Commissioner of the Department of Mental Health and Mental Retardation.'

"(Emphasis added.)

         "Rule 11.1, Ala. R.Crim. P., defines 'mentally incompetent' as 'lack[ing] sufficient present Etowah County jail. Then a senior doctor from Taylor Hardin (Doctor Bare) turned in his report to the Circuit Court of Etowah County concerning his mental evaluation of the defendant, Stephon Lindsay." (C. 138.) 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, Ala. R.Crim. P., provides:

"'(a) Preliminary Review. 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 or, where the judge has received more than one report, not more than forty-two (42) days after the date the judge received the last report, to determine if the defendant is incompetent to stand trial, as the term "incompetent" is defined in Rule 11.1. At this hearing all parties shall be prepared to address the issue of competency.'

"(Emphasis added.)

         "The trial court has been described as the initial 'screening agent' for mental-health issues:

"'[Section 15-16-21, Ala. Code 1975] places the initial burden on the trial court to determine whether there are "reasonable grounds" to doubt the accused's sanity. "The trial court is, thus, the 'screening agent' for mental examination requests." Reese v. State, 549 So.2d 148, 150 (Ala. Cr. App. 1989). "'It is left to the discretion of the trial court as to whether there is a reasonable or bona fide doubt as to sanity, and, thus, whether a further examination is required.'" 549 So.2d at 150. The trial court makes a preliminary determination "without the aid of a jury as to whether reasonable grounds existed to doubt the defendant's competency." Rule 11.3, A.R.Crim. P., Committee Comments.'

"Daniels v. State, 621 So.2d 335, 337 (Ala.Crim.App.1992).

         "'Competency to stand trial is a factual determination.' United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998). 'There are of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.' Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). 'In making a determination of competency, the ... court may rely on a number of factors, including medical opinion and the court's observation of the defendant's comportment.' United States v. Nichols, 56 F.3d 403, 411 (2d Cir. 1995). 'Comments of defense counsel concerning an accused's competency to stand trial are not conclusive; however, they should be considered by the court.' Williams v. State, 386 So.2d 506, 510-11 (Ala.Crim.App.1980). 'Given that "a defendant's behavior and demeanor at trial are relevant as to the ultimate decision of competency," we stress that the observations and conclusions of the district court observing that behavior and demeanor are crucial to any proper evaluation of a cold appellate record.' United States v. Cornejo-Sandoval, 564 F.3d 1225, 1234 (10th Cir. 2009). '[O]ne factor a court must consider when determining if there is reasonable cause to hold a competency hearing is a medical opinion regarding a defendant's competence.' United States v. Jones, 336 F.3d 245, 257 (3d Cir. 2003).

"'We have said that "[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). "'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).'

"Freeman v. State, 776 So.2d 160, 172 (Ala.Crim.App.1999)." Luong v . State, 199 So.3d 173, 194-96 (Ala.Crim.App.2015) (opinion on remand).

"Rule 11.6(a) authorizes the circuit court to make a preliminary determination that reasonable grounds exist to conduct a competency hearing, based on the reports submitted by examining psychologists and/or psychiatrists. Authorizing the court to make this initial determination will avoid mandating a competency hearing when reasonable grounds do not exist to doubt the defendant's competency to stand trial, as evidenced by the reports of the examining psychologists or psychiatrists. While this procedure safeguards valuable court time and resources, it also ensures that the defendant's right to a competency hearing before a judge or jury will be preserved when reasonable grounds exist to doubt the defendant's mental competency.
"After reviewing the reports, if the judge finds reasonable grounds to doubt the defendant's mental competency, the judge must schedule a competency hearing within forty-two (42) days after the date the last report is received."

         Committee Comments to Rule 11.6, Ala. R. Crim. P.

"Rule 11.6(a) does not automatically require a competency hearing following the mental examination. Only when the judge finds after a review of the reports that 'reasonable grounds exist to doubt the defendant's mental competency' is the judge required to set a competency hearing and that hearing must be held not more than 42 days after the judge receives the report."

Tankersley v. State, 724 So.2d 557, 565 (Ala.Crim.App.1996).

         Furthermore, a diagnosis of paranoid schizophrenia does not mean that a defendant is per se incompetent to stand trial. See State v. Anderson, 244 So.3d 640, 650 (La.Ct.App. 2017) ("The fact that [the defendant] suffers from paranoid schizophrenia is not inconsistent with a finding that he was competent to stand trial."); State v. Woods, 301 Kan. 852, 861, 348 P.3d 583, 592 (2015) ("[The defendant] is not per se incompetent just because he was previously diagnosed with schizophrenia."); In re Rhome, 172 Wash.2d 654, 662, 260 P.3d 874, 879 (2011) ("[The defendant] carried a diagnosis of paranoid schizophrenia, but had been found competent to stand trial and was allowed to proceed pro se with standby counsel."); State v. Braden, 98 Ohio St.3d 354, 375, 785 N.E.2d 439, 462 (2003) ("[The mental health expert] diagnosed [the defendant] as suffering from paranoid schizophrenia, but this diagnosis is not synonymous with incompetence to stand trial. 'A defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel.'"); State v. Elam, 89 S.W.3d 517, 521 (Mo.Ct.App. 2002) ("[A] defendant may be diagnosed with a mental disease and still be declared competent to stand trial."); State v. Frezzell, 958 S.W.2d 101, 104 (Mo.Ct.App. 1998) ("The actual presence of some degree of mental illness or need for treatment does not necessarily equate with incompetency to stand trial.").

         Lindsay was not automatically entitled to a competency hearing because he had been examined by a mental-health expert to determine his competency to stand trial. The circuit court had Dr. Bare's written findings that Lindsay was competent to stand trial and had the luxury, which this Court lacks, of personally observing Lindsay's demeanor during the proceedings. Lindsay also filed several articulate pro se motions with the circuit court. Based on Dr. Bare's findings and the court's personal dealings with Lindsay, we agree with the circuit court that it had no "reasonable grounds" to make any further inquiry into Lindsay's competency to stand trial See Luong v. State, supra. Lindsay is due no relief on this claim.

         II.

         Lindsay next argues that the circuit court erred in death-qualifying the prospective jurors because, he says, it created a conviction-prone jury.

"A jury composed exclusively of jurors who have been death-qualified in accordance with the test established in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), is considered to be impartial even though it may be more conviction prone than a non-death-qualified jury. Williams v. State, 710 So.2d 1276 (Ala. Cr. App. 1996). See Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). Neither the federal nor the state constitution prohibits the state from ... death-qualifying jurors in capital cases. Id.; Williams; Haney v. State, 603 So.2d 368, 391-92 (Ala. Cr. App. 1991), aff'd, 603 So.2d 412 (Ala. 1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993)."

Davis v. State, 718 So.2d 1148, 1157 (Ala.Crim.App.1995) (opinion on return to remand). The circuit court committed no error in death-qualifying the prospective jurors. Lindsay is due no relief on this claim.

         III.

         Lindsay next argues that the circuit court erred in failing to remove four prospective jurors for cause that, he says, were biased against him.

         Lindsay objected to the circuit court's failure to remove only one of the challenged jurors. Therefore, we review the failure to sua sponte remove three of the jurors for plain error. See Rule 45A, Ala. R. App. P.

         When discussing a trial court's failure to remove a juror for cause, this Court has stated:

"To justify a challenge for cause, there must be a proper statutory ground or '"some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court."' Clark v. State, 621 So.2d 309, 321 (Ala. Cr. App. 1992) (quoting Nettles v. State, 435 So.2d 146, 149 (Ala. Cr. App. 1983)). This Court has held that 'once a juror indicates initially that he or she is biased or prejudiced or has deep-seated impressions' about a case, the juror should be removed for cause. Knop v. McCain, 561 So.2d 229, 234 (Ala. 1989). The test to be applied in determining whether a juror should be removed for cause is whether the juror can eliminate the influence of his previous feelings and render a verdict according to the evidence and the law. Ex parte Taylor, 666 So.2d 73, 82 (Ala. 1995). A juror 'need not be excused merely because [the juror] knows something of the case to be tried or because [the juror] has formed some opinions regarding it.' Kinder v. State, 515 So.2d 55, 61 (Ala. Cr. App. 1986). Even in cases where a potential juror has expressed some preconceived opinion as to the guilt of the accused, the juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based upon the evidence in the case. Kinder, at 60-61. In order to justify disqualification, a juror '"must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused"'; '"[s]uch opinion must be so fixed ... that it would bias the verdict a juror would be required to render."' Oryang v. State, 642 So.2d 979, 987 (Ala. Cr. App. 1993) (quoting Siebert v. State, 562 So.2d 586, 595 (Ala. Cr. App. 1989))."

Ex parte Davis, 718 So.2d 1166, 1171-72 (Ala. 1998).

"The test for determining whether a strike rises to the level of a challenge for cause is 'whether a juror can set aside their opinions and try the case fairly and impartially, according to the law and the evidence.' Marshall v. State, 598 So.2d 14, 16 (Ala. Cr. App. 1991). 'Broad discretion is vested with the trial court in determining whether or not to sustain challenges for cause.' Ex parte Nettles, 435 So.2d 151, 153 (Ala. 1983). 'The decision of the trial court "on such questions is entitled to great weight and will not be interfered with unless clearly erroneous, equivalent to an abuse of discretion."' Nettles, 435 So.2d at 153. In Marshall v. State, 598 So.2d 14 (Ala. Cr. App. 1991), this court held that it was not error for a trial court to deny challenges for cause of two jurors who stated that they knew the victim or her family. One veniremember had been employed as a maid by the victim's family and the other stated that she knew the victim's family. Marshall, 598 So.2d at 16. This court held that this relationship was not grounds for a challenge for cause as long as the juror indicates that he or she can be fair and impartial. 598 So.2d at 16. In the present case, the juror remembered the victim's face from high school, but was not, and had not been, personally acquainted with the victim. Therefore, the trial court did not err in allowing the juror to remain on the jury."

Dunning v. State, 659 So.2d 995, 997 (Ala.Crim.App.1994).

"Even though a prospective juror may initially admit to a potential for bias, the trial court's denial of a motion to strike that person for cause will not be considered error by an appellate court if, upon further questioning, it is ultimately determined that the person can set aside his or her opinions and try the case fairly and impartially, based on the evidence and the law."

Ex parte Land, 678 So.2d 224, 240 (Ala. 1996).

         Moreover, the Alabama Supreme Court has recognized that the harmless-error rule applies to a court's refusal to remove a prospective juror for cause.

"The application of a 'harmless-error' analysis to a trial court's refusal to strike a juror for cause is not new to this Court; in fact, such an analysis was adopted as early as 1909:
"'The appellant was convicted of the crime of murder in the second degree. While it was error to refuse to allow the defendant to challenge the juror C.S. Rhodes for cause, because of his having been on the jury which had tried another person jointly indicted with the defendant, yet it was error without injury, as the record shows that the defendant challenged said juror peremptorily, and that, when the jury was formed the defendant had not exhausted his right to peremptory challenges.'
"Turner v. State, 160 Ala. 55, 57, 49 So. 304, 305 (1909). However, in Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled on other grounds, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court stated, in dicta, that '[t]he denial or impairment of the right is reversible error without a showing of prejudice.' (Emphasis added.) Some decisions of this Court as well as of the Alabama Court of Criminal Appeals reflect an adoption of this reasoning. See Dixon v. Hardey, 591 So.2d 3 (Ala. 1991); Knop v. McCain, 561 So.2d 229 (Ala. 1989); Ex parte Rutledge, 523 So.2d 1118 (Ala. 1988); Ex parte Beam, 512 So.2d 723 (Ala. 1987); Uptain v. State, 534 So.2d 686, 688 (Ala.Crim.App. 1988) (quoting Swain and citing Beam and Rutledge); Mason v. State, 536 So.2d 127, 129 (Ala.Crim.App. 1988) (quoting Uptain).
"... [T]his Court has returned to the harmless-error" analysis articulated in the Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and [ United States v.] Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), decisions. Because a defendant has no right to a perfect jury or a jury of his or her choice, but rather only to an 'impartial' jury, see Ala. Const. 1901, § 6, we find the harmless-error analysis to be the proper method of assuring the recognition of that right.
"In this instance, even if the Betheas could demonstrate that the trial court erred in not granting their request that L.A.C. be removed from the venire for cause (an issue we do not reach), they would need to show that its ruling somehow injured them by leaving them with a less-than-impartial jury. The Betheas do not proffer any evidence indicating that the jury that was eventually impaneled to hear this action was biased or partial. Therefore, the Betheas are not entitled to a new trial on this basis."

Bethea v. Springhill Memorial Hospital, 833 So.2d 1, 6-7 (Ala. 2002) (footnotes omitted). See also Calhoun v. State, 932 So.2d 923 (Ala.Crim.App.2005). Compare General Motors Corp. v. Jernigan, 883 So.2d 646 (Ala. 2003) (harmless-error analysis does not apply when the circuit court erroneously denied five challenges for cause).

         With these principles in mind we review the claims raised by Lindsay concerning the four challenged prospective jurors.

         A.

         Lindsay first argues that prospective juror J.H.[6] should have been removed for cause because, he says, he had a longstanding friendship with the district attorney. He said that they attended the same church and that J.H. had nominated the district attorney for a city judgeship while J.H. was a member of the city counsel.

         The record indicates that on J.H.'s juror questionnaire he indicated that he had been to school with defense counsel's mother and father and that he had known the district attorney his whole life. The prosecutor first asked J.H. if his friendship with the district attorney would affect his ability to be impartial. J.H. stated that it would not. (R. 723.) Defense counsel then questioned J.H. about whether the fact that he had gone to school with defense counsel's parents would affect his ability to be impartial. J.H. said it would not. (R. 767.) Counsel also asked if his friendship with the district attorney would affect his ability to be impartial. Again, J.H. indicated that it would not. (R. 768.) At the conclusion of voir dire, defense counsel moved that prospective juror J.H. be removed for cause. The circuit court denied the motion after noting that J.H. indicated that his friendship with the district attorney would not affect his ability to be impartial. (R. 1445.)

"'[The juror's] testimony revealed that he had been friends with one of the prosecutors for a long time. Nevertheless, the mere fact of acquaintance is not sufficient to disqualify a prospective juror if the panel member asserts that the acquaintance will not affect his judgment in the case.'
"Carrasquillo v. State, 742 S.W.2d 104, 111 (Tex. App. 1987). See also J.H.B., Relationship to Prosecutor or Witness for Prosecution as Disqualifying Juror in Criminal Case, 18 A.L.R. 375 (1922)."

Bohannon v. State, 222 So.3d 457, 478 (Ala.Crim.App.2015). The circuit court did not err in denying Lindsay's motion to remove prospective juror J.H. for cause. Lindsay is due no relief on this claim.

         Moreover, Lindsay used his first peremptory strike to remove juror J.H., and J.H. did not serve on Lindsay's jury. Accordingly, any error in failing to remove juror J.H. for cause was harmless beyond a reasonable doubt. See Bethea v. Springhill Memorial Hospital, 833 So.2d at 6-7. Lindsay is due no relief on this claim.

         B.

         Next, Lindsay argues that the circuit court erred in failing to remove prospective juror M.O. for cause because, he says, she asked not to serve on the jury, she indicated a bias against people with mental illness, and she said that she had discussed the case with her coworkers.

         Lindsay did not move to remove prospective juror M.O. for cause; therefore, we review this claim for plain error. See Rule 45A, Ala. R. App. P.

         The record shows that M.O. stated on her juror questionnaire that it would cause her "heartache" to serve on the case. M.O. also stated during voir dire that "I work with a lot of workers' comp cases. And I have personally seen faked injuries. I don't see why people wouldn't fake mental illness as well." (R. 1001.) M.O. further stated during voir dire that she had discussed the case with her coworkers before she became a member of the venire.

         The record shows that when questioned by the prosecutor, M.O. indicated that she could be impartial, that she would not let her emotions control her verdict, that she had not formed an opinion about the case, and that her verdict would be based on the evidence presented in the case. (R. 1118-19.) M.O. was asked about her experience with workers' compensation cases and said that it would not influence her. (R. 1001.) The circuit court did not err in failing to sua sponte remove juror M.O. for cause. Lindsay is due no relief on this claim.

         Moreover, Lindsay used his 12th peremptory strike to remove prospective juror M.O. for cause. As stated previously, any error in failing to remove M.O. was harmless based on Bethea v. Springhill Memorial Hospital. Lindsay is due no relief on this claim.

         C.

         Lindsay next argues that the circuit court erred in failing to sua sponte remove prospective juror S.T. for cause because, he says, she stated during voir dire that she could not carry out her duty. (R. 1188.)

         Lindsay did not object and request that prospective juror S.T. be removed for cause. Therefore, we review this claim for plain error. See Rule 45A, Ala. R. App. P.

         The voir dire of prospective juror S.T. reads:

"[S.T.]: The thing with me is probably that I don't know how bad the pictures are. I wouldn't know if I'm elected as a juror, I really couldn't tell, you know, the nature of the photos. That's why I may -- That's just a comment I did. But it wouldn't affect my outcome or opinion towards the situation and the matter of the case if elected.
"The Court: So, obviously, nobody wants to see anything difficult.
"[S.T.]: Right.
"The Court: If you did have to see pictures in this case that would be hard for you or difficult for you, would you be able to perform your duties in this case?
"[S.T.]: Yes."

(R. 1347-48.) S.T. stated that the photographs would not prevent her from performing her duties as a juror. Also, the circuit court at the conclusion of the court's questions during voir dire asked the veniremembers: "Is there any juror who knows anything about the case that would influence your verdict in any way?" No juror responded. (R. 471.)

         The circuit court did not err in failing to sua sponte remove prospective juror S.T. for cause. See Dunning, supra. Lindsay is due no relief on this claim.

         D.

         Lindsay next argues that the circuit court erred in failing to remove prospective juror L.B. for cause because, he says, L.B. was a probation officer and he knew the district attorney and staff and had worked around them for five years.

         Lindsay did not challenge L.B. for cause or move that he be removed for cause. Therefore, we review this claim for plain error. See Rule 45A, Ala. R. App. P.

         Knowing the district attorney is not a ground "supporting removal for cause under § 12-16-150, Ala. Code 1975." Osgood v. State, [Ms. CR-13-1416, October 21, 2016] So.__3d__, __ (Ala.Crim.App.2016). See also Bohannon v. State, 222 So.3d at 478. L.B. indicated that his relationship with the district attorney would not affect his ability to be impartial. The circuit court did not err in failing to sua sponte remove prospective juror L.B. for cause.

         E.

         Last, Lindsay argues that his jury included four jurors who were biased against him -- C.G., S.T., E.L., and J.P. -- in violation of his right to be tried by an impartial jury. Lindsay's entire argument on this issue states:

"Juror C.G. indicated that she did not agree with the presumption of innocence: 'the accused should have to make more of an effort to prove innocence.' C.G.'s questionnaire at 10. Two other jurors, J.P. and S.T., indicated that the fact that a defendant is charged made them believe that he is more likely to be guilty. J.P.'s questionnaire at 12; S.T.'s questionnaire at 12. Additionally, Juror E.L. indicated that she would automatically impose the death penalty for a person convicted of killing a child under age five, but was never questioned about this on individual voir dire. E.L.'s questionnaire at 15. The inclusion of biased veniremembers on the jury violated Mr. Lindsay's right to an impartial jury."

(Lindsay's brief, at pp. 77-78.)

         "A defendant is 'entitled to be tried by 12, not 9 or even 10 impartial and unprejudiced jurors.'" Ex parte Killingsworth, 82 So.3d 761, 764 (Ala. 2010), quoting, in part, Parker v. Gladden, 385 U.S. 363 (1966). However, as the State correctly argues, each of the above-challenged jurors stated on his or her juror questionnaire that they could follow the court's instructions and be fair and impartial. Also, the voir dire conducted by the circuit court shows that all of the prospective jurors were asked if they knew "anything about the case that would influence [their] verdict in any way?" (R. 471.) No juror responded in the affirmative to this question. The record does not suggest that Lindsay was tried by a jury on which four biased jurors sat. Lindsay is due no relief on this claim.

         IV.

         Lindsay next argues that the record establishes a prima facie case of racial discrimination in the selection of his jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Specifically, he argues that the case should be remanded to the Etowah Circuit Court for that court to conduct a Batson hearing.

         The United States Supreme Court in Batson held that it was a violation of the Equal Protection Clause of the United States Constitution to strike a black individual from a black defendant's jury based solely on his or her race. This holding was extended to white defendants in Powers v. Ohio, 499 U.S. 400 (1991); to defense counsel in criminal cases in Georgia v. McCollum, 505 U.S. 42 (1992); and to gender-based claims in J.E.B. v. Alabama, 511 U.S. 127 (1994). The Alabama Supreme Court extended this holding to white prospective jurors in White Consolidated Industries, Inc. v. American Liberty Insurance, Inc., 617 So.2d 657 (Ala. 1993).

          In this case, Lindsay did not make a Batson objection after the peremptory strikes were completed. Thus, we review this issue for plain error. See Rule 45A, Ala. R. App. P.

"To find plain error in the Batson [v. Kentucky, 476 U.S. 79 (1986), ] context, we first must find that the record raises an inference of purposeful discrimination by the State in the exercise of its peremptory challenges. E.g., Saunders v. State, 10 So.3d 53, 78 (Ala.Crim.App.2007). Where the record contains no indication of a prima facie case of racial discrimination, there is no plain error. See, e.g., Gobble v. State, 104 So.3d 920, 949 (Ala.Crim.App.2010)."

Henderson v. State, 248 So.3d 992, 1016 (Ala.Crim.App.2017).

         Alabama appellate courts have rarely found plain error in the Batson context. Indeed, on numerous occasions this Court has declined to find plain error based on an undeveloped and cold record. See Gaston v. State, [Ms. CR-15-0317, March 16, 2018] __So. 3d__ (Ala.Crim.App.2018); Russell v. State, [Ms. CR-13-0513, September 8, 2017] So.__ 3d__ (Ala.Crim.App.2017); Floyd v. State, [Ms. CR-13-0623, July 7, 2017] So.3d (Ala.Crim.App.2017); Henderson v. State, 248 So.3d 992 (Ala.Crim.App.2017); Osgood v. State, [Ms. CR-13-1416, October 21, 2016] So.__ 3d__ 2016); Largin v. State, 233 So. 3d__ 374 (Ala.Crim.App.2015); Townes v. State, 253 So.3d 447 (Ala.Crim.App.2015); Bohannon v. State, 222 So.3d 457 (Ala.Crim.App.2015); Luong v. State, 199 So.3d 173 (Ala.Crim.App.2015); White v. State, 179 So.3d 170 (Ala.Crim.App.2013); Lockhart v. State, 163 So.3d 1088 (Ala.Crim.App.2013); McMillan v. State, 139 So.2d 184 (Ala.Crim.App.2010); Gobble v. State, 104 So.3d 920 (Ala.Crim.App.2010); Sharifi v. State, 993 So.2d 907 (Ala.Crim.App.2008).[7]

"'A defendant makes out a prima facie case of discriminatory jury selection by "the totality of the relevant facts" surrounding a prosecutor's conduct during the defendant's trial.' Lewis v. State, 24 So.3d 480, 489(Ala.Crim.App.2006) (quoting Batson, 476 U.S. at 94, aff'd, 24 So.3d 540 (Ala. 2009). 'In determining whether there is a prima facie case, the court is to consider "all relevant circumstances" which could lead to an inference of discrimination.' Ex parte Branch, 526 So.2d [609] at 622 [(Ala. 1987)] (citing Batson, 476 U.S. at 93, citing in turn Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). In Ex parte Branch, the Alabama Supreme Court specifically set forth a number of 'relevant circumstances' to consider in determining whether a prima facie case of race discrimination has been established:

         "'The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:

"'1. Evidence that the "jurors in question shared] only this one characteristic --their membership in the group -- and that in all other respects they [were] as heterogeneous as the community as a whole." [People v.] Wheeler, 22 Cal.3d [258] at 280, 583 P.2d [748] at 764, 148 Cal.Rptr. [890] at 905 [(1978)]. For instance "it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions," Wheeler, 22 Cal.3d at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905, n. 27, indicating that race was the deciding factor.
"'2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.
"'3. The past conduct of the state's attorney in using peremptory challenges to strike all blacks from the jury venire. Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)].
"'4. The type and manner of the state's attorney's questions and statements during voir dire, including nothing more than desultory voir dire. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Wheeler, 22 Cal.3d at 281, 583 P.2d at 764, 148 Cal.Rptr. at 905.
"'5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions. Slappy v. State, 503 So.2d 350, 355 (Fla. Dist. Ct. App. 1987); People v. Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr. 656 (1986); People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 764, 148 Cal.Rptr. 890 (1978).
"'6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., in Slappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged. Slappy, 503 So.2d at 352 and 355.
"'7. Disparate examination of members of the venire; e.g., in Slappy, a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors. Slappy, 503 So.2d at 355.
"'8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury. Batson, 476 U.S. at 93, 106 S.Ct. at 1721; Washington v. Davis, 426 U.S. [229] at 242, 96 S.Ct. [2040] at 2049 [(1976)].
"'9. The state used peremptory challenges to dismiss all or most black jurors. See Slappy, 503 So.2d at 354, Turner, supra.'

"Id. at 622-23. In Ex parte Trawick, 698 So.2d 162 (Ala. 1997), the Court reiterated the Ex parte Branch factors in a manner applicable to gender as follows:

"'(1) evidence that the jurors in question shared only the characteristic of gender and were in all other respects as heterogenous as the community as a whole; (2) a pattern of strikes against jurors of one gender on the particular venire; (3) the past conduct of the state's attorney in using peremptory challenges to strike members of one gender; (4) the type and manner of the state's questions and statements during voir dire; (5) the type and manner of questions directed to the challenged juror, including a lack of questions; (6) disparate treatment of members of the jury venire who had the same characteristics or who answered a question in the same manner or in a similar manner; and (7) separate examination of members of the venire. Additionally, the court may consider whether the State used all or most of its strikes against members of one gender.'

"698 So.2d at 168." White v. State, 179 So.3d at 199-200.

         Here, the record shows that after some prospective jurors were excused for undue hardship 78 prospective jurors remained on the venire. The State and the defense each had 33 peremptory strikes. The State used 8 of its 33 strikes to remove black prospective jurors -- its 3rd, 5th, 7th, 13th, 18th, 23rd, 26th, and 31st strikes -- to remove black prospective jurors K.D., D.B., J.C., C.S., S.B., D.M., D.H., and K.D. Lindsay used 32 of his 33 strikes to remove white prospective jurors. The defense used its last strike to remove a black prospective juror. Lindsay's jury was composed of 6 black jurors and 6 white jurors. Of the three alternates, two were black and one was white.

         The voir dire in this case was extensive. It consists of almost 1, 000 pages of the certified record on appeal. (R. 455-1437.) The jurors also completed an 18-page juror questionnaire that contained 80 questions. There is no indication from the extensive voir dire examination that the State unfairly targeted black prospective jurors in its questioning. Indeed, the opposite is true.

         We have thoroughly examined the voir dire and the juror questionnaires. Juror K.D. stated during voir dire examination that she had moral or religious reservations about the death penalty. (R. 1176, 1364.) Juror D.B. stated during voir dire that she did not think that she could vote for the death penalty. (R. 519.) Also, on D.B.'s questionnaire she wrote that the death penalty did not fix any problems and that she would automatically vote for life imprisonment without parole. Juror J.C. stated in her questionnaire that her brother had been convicted of rape. Juror C.S. indicated on her questionnaire that her son had been convicted of possession of marijuana and that she would automatically vote for life imprisonment without parole. Juror S.B. stated on her questionnaire that she would automatically vote for life imprisonment without parole and that the death penalty was imposed too randomly. Juror D.M. stated on her questionnaire that she could not say how she felt about the death penalty. Juror D.H. stated on her questionnaire that she had family members or close friends who had been convicted and that she would automatically vote for life imprisonment without parole. Juror K.D. stated on her questionnaire that she had family members or close friends who had been convicted and that she would automatically vote for life imprisonment.

"The above reasons, which are readily discernible from the record, were all race-neutral reasons. 'The fact that a family member of the prospective juror has been prosecuted for a crime is a valid race-neutral reason.' Yelder v. State, 596 So.2d 596, 598 (Ala.Crim.App.1991). '[A] veniremember's connection with or involvement in criminal activity may serve as a race-neutral reason for striking that veniremember.' Wilsher v. State, 611 So.2d 1175, 1183 (Ala.Crim.App.1992). '"That a veniremember has reservations about the death penalty, though not sufficient for a challenge for cause, may constitute a race-neutral and reasonable explanation for the exercise of a peremptory strike."' Fisher v. State, 587 So.2d 1027, 1036 (Ala.Crim.App.1991)."

Bohannon v. State, 222 So.3d 457, 482 (Ala.Crim.App.2015).

         Lindsay also argues that the Etowah County District Attorney's Office has a long history of discrimination in the selection of juries. It cites a 1996 case, State v. Williams, 679 So.2d 275 (Ala.Crim.App.1996), and a 1987 case, Turner v. State, 521 So.2d 93 (Ala.Crim.App.1987), in support of that argument. However, this Court has stated:

"Although Bohannon contends that there is a long history of racial discrimination by the Mobile County District Attorney's Office in striking juries, the most recent case cited by Bohannon in his brief in making this claim is a 1999 case. Despite Bohannon's contention that the district attorney's office has a long history of striking jurors based on race, 'this was not reflected in, or indicated by, the record. See Sharifi v. State, 993 So.2d 907, 928 (Ala.Crim.App.2008) (no inference from the record of discriminatory use of peremptory challenges by the prosecutor despite Sharifi's argument that Madison County has a long history of violating Batson and that the number of strikes used by the State indicated prejudice).' Ditch v. State, 67 So.3d 936, 982 (Ala.Crim.App.2010). See also McMillan v. State, 139 So.3d [184] at 205 [(Ala.Crim.App.2010)]."

Bohannon, 222 So.3d at 483.

         Based on this Court's review of the record, we cannot say that Lindsay has proven a prima facie case of racial discrimination in the prosecutor's strikes of black prospective jurors. See Henderson, supra. Lindsay is due no relief on this claim.

         V.

         Lindsay next argues that his statements to police should have been suppressed because, he says, they were obtained in violation of state and federal law. Specifically, he argues that his initial statement was unlawfully admitted because he was not read his Miranda[8] rights and that his subsequent confession was coerced because of his mental state.

         A.

         Lindsay first contends that when police first spoke with him they asked him about Maliyah before reading him his Miranda rights. Lindsay responded to the police inquiry that Maliyah was not okay and that she not alive. The State argues that Lindsay's statements were admissible because they fell within the "public safety" exception to the Miranda requirements.

         Lindsay did not challenge his statements to police at trial; therefore, we review this claim for plain error. See Rule 45A, Ala. R. App. P.

         In discussing the public-safety exception to Miranda ...


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