from Etowah Circuit Court (CC-13-652)
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. This appeal, which is automatic in a case
involving the death penalty, followed. See §
13A-5-55, Ala. Code 1975.
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.
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
"[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
"[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.
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 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.
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."
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
"[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.
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
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. The circuit court issued an order
sentencing Lindsay to death. This appeal followed.
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,
"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."
discussing the scope of plain error, this Court in
Johnson v. State, 120 So.3d 1130
"'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.
Sale v. State, 8 So.3d 330, 345 (Ala.Crim.App.2008).
review the issues raised by Lindsay in his brief to this
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.
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.
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.)
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.)
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
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.'
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.'
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
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.,
"Daniels v. State, 621 So.2d 335, 337
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
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
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.").
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.
next argues that the circuit court erred in death-qualifying
the prospective jurors because, he says, it created a
"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.
next argues that the circuit court erred in failing to remove
four prospective jurors for cause that, he says, were biased
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.
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
"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).
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).
these principles in mind we review the claims raised by
Lindsay concerning the four challenged prospective jurors.
first argues that prospective juror J.H. 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.
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.
"'[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
"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.
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.
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.
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.
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.
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.
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.
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.)
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.
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
"The Court: So, obviously, nobody wants to see anything
"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?
(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.)
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.
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.
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.
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.
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.)
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.
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
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).
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.
"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
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).
"'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
 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:
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  at 280, 583 P.2d  at
764, 148 Cal.Rptr.  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.  at 242, 96 S.Ct.  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
"'(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
"698 So.2d at 168." White v. State, 179
So.3d at 199-200.
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.
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.
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
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  at 205 [(Ala.Crim.App.2010)]."
Bohannon, 222 So.3d at 483.
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.
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 rights and that his subsequent
confession was coerced because of his mental state.
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.
did not challenge his statements to police at trial;
therefore, we review this claim for plain error. See
Rule 45A, Ala. R. App. P.
discussing the public-safety exception to Miranda