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Hicks v. State

Alabama Court of Criminal Appeals

July 12, 2019

Dennis Morgan Hicks
State of Alabama

          Appeal from Mobile Circuit Court (CC-12-4687)

          MCCOOL, JUDGE

         Dennis Morgan Hicks was convicted of capital murder, see § 13A-5-40(a)(6), Ala. Code 1975, for intentionally killing Joshua Duncan, while Hicks was under a sentence of life imprisonment. He was also convicted of theft of property in the second degree, see § 13A-8-4, Ala. Code 1975, for exerting unauthorized control over Dorothy Hudson's utility trailer, valued at $1, 500, with the intent to deprive her of the trailer. Following a jury trial, the jury recommended a sentence of death as to the capital murder conviction, by a vote of 11 to 1, and Hicks was subsequently sentenced to death. He was sentenced to time served for his theft-of-property conviction.


         Joshua Duncan, the victim, was 23 years old at the time of the murder and had met Hicks at a church, The Power of God Worship Center; Hicks performed odd jobs around the church and worked as a handyman. Duncan had mental disabilities and received Social Security benefits. He lived with his grandmother, Dorothy Hudson, who had raised him after his father died. Hudson hired Hicks to do some work for her, and Hicks asked her to sell him a utility trailer that she had been left by her deceased husband. The trailer was located on a part of her property that was near her house. Hicks wanted to fix the trailer to use or to sell. Hudson refused to sell the utility trailer to Hicks.

         On August 31, 2011, Hudson allowed Duncan to accompany Hicks on an errand of Hicks's and, while on the errand, Hicks offered to include Duncan as a worker on an upcoming painting job. Hicks also offered to teach Duncan how to drive. Hudson reluctantly agreed and Duncan left the next day, September 1, to stay with Hicks so they could leave early for the job.

         On September 1, Hudson, who had gotten Duncan's Social Security income (SSI) check, accompanied Hicks and Duncan to the bank to cash the check for Duncan and give him the money. The next day, September 2, Hicks and Duncan unsuccessfully attempted to eliminate Hudson as a recipient of Duncan's Social Security benefits check and to have his checks sent to Hicks's house.

         Hicks and Duncan went to stay in a mobile home belonging to Regina Norris, Hicks's sister. Norris, who lived in the mobile home, was caring for three of her grandchildren who were living with her while their mother was in jail; they were six-year-old Alyssa, [1] five-year-old Jatton, [2] and four-year-old Chance.[3] Duncan did not have a phone, and, when Hudson did not hear from Duncan, she became concerned and tried to contact Hicks by calling him and by driving to his house.

         One of Hudson's neighbors saw her utility trailer being pulled away from her property by a white "Blazer or Jimmy-type vehicle." (R. 1116.) He testified that the vehicle looked similar to that depicted in a photograph of Hicks's vehicle. The witness did not see who was driving the vehicle or who was inside. Hicks and Duncan went by the house of a friend of Hicks's, Mary Ann Lambert, who agreed to witness a written statement that served as a bill of sale for the utility trailer. She witnessed Hicks and Duncan sign the paper. Duncan told Lambert that the trailer was his and that it had belonged to his deceased grandfather. Lambert's son then accompanied Hicks and Duncan to get the utility trailer from Hudson's property. At trial, Lambert testified that she could not remember when this occurred, but the bill of sale was dated August 29, 2011.

         On the night of the murder, September 5, 2011, as documented by a neighbor's security camera, Hicks and Duncan were working on the utility trailer that had been relocated near Norris's mobile home. Hicks and Duncan began fighting later that night and two of Norris's children, Jatton and Chance, who were in Norris's mobile home, witnessed the fight as it transpired in the backyard.[4] The boys stated during their interview with law enforcement that Hicks hung Duncan from a chain on a tree in the backyard, decapitated him, and cut off his hands.[5] Hicks then loaded the body in his vehicle and left. The body parts were later discovered dumped in a trash pile located at a firing range once used by the Mobile Police Department.

         The following morning, on September 6, Hicks telephoned Hudson and asked what she was doing. He called her again that afternoon and told her that he and Duncan had gotten into a fight the previous night, and that Duncan had walked away at approximately 2 a.m. Hudson became suspicious because Hicks had not mentioned in the earlier phone call that Duncan had left. She began trying to find Duncan. She called Hicks repeatedly and drove around asking if anyone had seen Duncan. She then discovered that her utility trailer was missing.

         In hopes of finding Duncan, friends of his family put out fliers depicting Duncan as well people with whom he was last seen, specifically Hicks and Regina Norris. Mary Ammons Clark, a friend of the family, testified that she took part in posting fliers and noticed that the fliers were being taken down. She later saw Hicks taking down several fliers.

         Hudson contacted the police to inform them that Duncan and her trailer were missing and that when she last saw both Duncan and her trailer they were in Hicks's presence. She continued to call Hicks who eventually answered and told her that Duncan was at his house, although she could never contact Duncan.

         Later that day, Hicks was taken to the police station, where he gave a statement indicating that, while inside Norris's mobile home on the night of September 5, he had caught Duncan masturbating and had gotten upset. Hicks took Duncan back to Hicks's house where they fought and Duncan left by foot. Hicks told the police that he did not see Duncan again. He also told the police that he bought the utility trailer from Duncan who, Hicks stated, has told Hicks that he owned the trailer. Hicks stated that he purchased the trailer from Duncan for $375, fixed it up, and sold it for $600.

         Duncan's sister testified that, after Duncan was determined to be missing, she called Hicks and he told her that he did not know what had happened to Duncan. She further stated that Hicks recounted several different stories as to what had happened when Duncan disappeared.

         Over a month later, city workers who were cleaning the old police firing range discovered Duncan's remains in a tree-line of the property. The decomposed body had no hands or head. The body had suffered blows that indicated chopping wounds. The body had also been disemboweled. The pathologist could not determine at what point during the offense Duncan had died.

         Later, while in prison, Hicks talked to two fellow prisoners about the offense. Hicks told a cell-mate, after he had met with counsel, that a boy had seen him do it and Hicks told another prisoner that he had killed the victim and put him in the bushes.

         Standard of Review

         The plain error standard of review stated in Rule 45A, Ala. R. App. P., applies when a defendant makes arguments on appeal that were not brought up before the circuit court.

"'"Plain error is defined as error that has 'adversely affected the substantial right of the appellant.' 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)."'
"Ex parte Brown, 11 So.3d 933, 935-36 (Ala. 2008)(quoting Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999)). See also Ex parte Walker, 972 So.2d 737, 742 (Ala. 2007); Ex parte Trawick, 698 So.2d 162, 167 (Ala. 1997); Harris v. State, 2 So.3d 880, 896 (Ala.Crim.App.2007); and Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998)('To rise to the level of plain error, the claimed error must not only seriously affect a defendant's "substantial rights," but it must also have an unfair prejudicial impact on the jury's deliberations.'). Although the failure to object in the trial court will not preclude this Court from reviewing an issue under Rule 45A, Ala. R. App. P., it will weigh against any claim of prejudice made on appeal. See Dotch v. State, 67 So.3d 936, 965 (Ala.Crim.App.2010)(citing Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991)). Additionally, application of the plain-error rule
"'"'is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Whitehead v. State, [777 So.2d 781], at 794 [ (Ala.Crim.App.1999], quoting Burton v. State, 651 So.2d 641, 645 (Ala.Crim.App.1993), aff'd, 651 So.2d 659 (Ala. 1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995).'
"Centobie v. State, 861 So.2d 1111, 1118 (Ala.Crim.App.2001)."

Phillips v. State, [Ms. CR-12-0197, December 18, 2015] ___ So.3d ___, ___ (Ala.Crim.App.2015).



         Hicks first argues that he was without legal representation during his court-ordered, pretrial psychiatric examination, which, he says, was a critical stage of his trial. Hicks alleges that, although he had requested court-appointed counsel, the court failed to appoint counsel until after the examination. Hicks is entitled to no relief on this issue.

         A brief review of the facts regarding Hicks's legal representation in this case is in order. Before trial, Hicks changed counsel a number of times. The record indicates that during a pretrial hearing held on November 6, 2014, Hicks again asked that his counsel be removed and a specific different counsel be appointed to represent him. Hicks stated that "I have respect for these guys. They may be great lawyers ... I'm just saying there's a conflict of interest and trust issue here and I don't want them as my lawyer if I can't trust them." (Pretrial R. 44.) Hicks maintained that counsel had "lied" numerous times and specifically argued that one of his counsel had stated that Hicks had gotten out of prison in 2010 when, in fact, he had been released in 2005. (Pretrial R. 43, 44.) The court agreed to speak to counsel Hicks had requested be appointed. Hicks had filed complaints about his counsel, and one of his counsel made the following statement to the court:

"I would just like to say I have contacted the office of general counsel, Alabama State Bar, and I was referred to Rule 1.7 conflict of interest and I would state on the record that I've been on Mr. Hick's case since April of 2014 and worked diligently on the case when I received this complaint and will continue to work diligently on the case even after all that and after the complaint. I view the rule that I have -- it has no adverse impact on my ability to represent Mr. Hicks."

(Pretrial R. 49.)

         On November 13, 2014, Hicks's counsel moved to withdraw. On November 20, 2014, at a hearing, the court informed Hicks that counsel Hicks requested be appointed had never tried a capital murder case and that counsel did not feel that he should represent Hicks. The court also stated that it had spoken to other attorneys before the hearing and that none would represent Hicks. Hicks asked to use the services of an attorney who had previously been appointed to represent him. However, the court and Hicks acknowledged that counsel might not do so because of Hicks's behavior and that Hicks might have difficulty finding representation. The court acknowledged that he was concerned about Hicks's mental stability and the State agreed and requested a mental evaluation of Hicks, "given some of the behavior in and out of court." (Pretrial hearings R. 53.)[6] The following then transpired in the presence of Hicks's counsel:

"THE COURT: ... One thing we need to make sure you're competent to stand trial. If you have to represent yourself, I mean, I'm not saying you're crazy. Crazy isn't even in it, the vocabulary. You know how it goes.
"THE DEFENDANT [Hicks]: Yes, sir. Let's get it on the record either I am or I'm not.
"THE COURT: That's right. So cooperate. I was going to tell you it's Dr. McKeown but it may be somebody else. They don't hypnotize you or anything. They just talk to you. You know how it goes. Hopefully that will happen in the next few weeks. I was going to tell you if, but I can't predict that now, if he comes by on the first Monday or whatever. We're going to reset it maybe for about four weeks so you won't get lost.
"THE DEFENDANT: Can I get a little clarification here?
"THE DEFENDANT: I am now without counsel at this moment; correct?
"THE COURT: No. I'm going to keep -- I'm going to keep them on standby right now about whether to relieve them. So they're still your counsel.
"THE DEFENDANT: He just informed me that he didn't want to be. I don't want him to be. So I can't continue to write counselor and say --
"THE COURT: He's filed a motion to -- He's filed a motion to -- But I want to make sure you are before I relieve them of being your counsel.
"THE DEFENDANT: Whenever I write like Mr. Tyson or different ones out there, or John Beck, all these others I still have to say they're still here?
"THE COURT: Give them a copy [i]f you want to do that, yes. Send them a copy. I want to make sure you are.
"THE DEFENDANT: Between now and January a psychologist is supposed to call me up and get evaluated?
"THE COURT: Right, should come by the jail. They have room over there. They'll interview you and get us a report.
"THE DEFENDANT: During the meantime I can still be on hunt for counsels that qualify?
"THE COURT: Sure you can do that if you want to. Yes."

(Pretrial hearings R. 53-56.)

         On January 8, 2015, another hearing was held concerning a mental evaluation for Hicks, and the court explained that Hicks would be sent to Taylor Hardin Mental Facility in 6 to 10 weeks. Again, Hicks's counsel was present for the hearing. The court also granted Hicks's motion to have his family hire an attorney but gave him only until January 30 to do so. If Hicks did not retain an attorney by that date, an attorney would be appointed. The court stated:

"What I'm going to do is I'm going to give you until January 30th and if you can hire an attorney fine; if not, I'm going to appoint someone at that time, end of the month. Then we'll enter this order getting you to Taylor Hardin and then I'm granting their motion to withdraw right now and then if you can get somebody by the end of the month, fine; after that I'm going to appoint somebody."

(Pretrial hearings R. 59.)

         On February 19, Hicks's motion for appointment of counsel was granted and then current counsel was allowed to withdraw;[7]new counsel was appointed.

         On appeal, Hicks argues that he did not have meaningful contact with counsel during his pretrial psychiatric evaluation, which, he alleges, was a critical stage of his prosecution. He submits that he had sent complaints to the court, as well as the Alabama State Bar, regarding the attorneys who were acting as his counsel at that time. He contends that, although counsel were on standby, they had not met with him for months and were not present at the time of the evaluation.

         Hicks did not object at trial or before trial on these grounds;[8] therefore, any error must rise to the level of plain error. Rule 45A, Ala. R. App. P. Moreover, Hicks's failure to object weighs against any finding of prejudice. Gobble v. State, 104 So.3d 920, 937 (Ala.Crim.App.2010).

         This Court recently held that the right to counsel associated with the critical stage of trial proceeding has not been extended to the psychiatric examination. This Court stated:

"The Tennessee Supreme Court in State v. Martin, 950 S.W.2d 20 (Tenn. 1997), discussed the problems in extending the right to counsel to a mental-health examination:
"'Both the United States and Tennessee Constitutions require the presence of counsel to represent a defendant not only at trial but also at "critical stages" of the proceedings "where counsel's absence might derogate from the accused's right to a fair trial." The purpose underlying the right is to "preserve the defendant's basic right to a fair trial as affected by his [or her] right meaningfully to cross examine the witnesses ... and to have effective assistance of counsel at the trial itself." United States v. Wade, 388 U.S. 218, 226-27, 87 S.Ct. 1926, 1931-32, 18 L.Ed.2d 1149 (1967).
"'The defendant asserts that the court-ordered mental examination was a "critical stage" of the proceedings requiring the presence of counsel under the United States and Tennessee Constitutions. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. The State maintains that the mental examination is not a "critical stage" of the proceedings and moreover, that counsel's presence would impair or limit the effectiveness of the examination.
"'In Estelle v. Smith, [451 U.S. 454');">451 U.S. 454 [101 S.Ct. 1866, 68 L.Ed.2d 359] (1981)], the Supreme Court held that the Sixth Amendment right to counsel was violated when the defendant "was denied the assistance of his attorneys in making the significant decision of whether to submit to the [psychiatric] examination and to what end the psychiatrist's findings could be employed." Although the court said that the psychiatric interview "proved to be a 'critical stage' against" the defendant, its holding was limited to the question of whether the defendant was entitled to consult with counsel prior to the examination. The court did not find a Sixth Amendment right to have counsel at the examination and, in fact, noted with apparent approval the Court of Appeals' finding that "an attorney present during the psychiatric interview could contribute little and might seriously disrupt the examination." 451 U.S. at 470-71, 101 S.Ct. at 1877, n. 14.
"'In later clarifying Estelle, the court stressed that "for a defendant charged with a capital crime, the decision whether to submit to a psychiatric examination designed to determine his future dangerousness is 'literally a life and death matter' which the defendant should not be required to face without "the guiding hand of counsel.'" Satterwhite v. Texas, 486 U.S. 249, 254, 108 S.Ct. 1792');">108 S.Ct. 1792, 1796, 100 L.Ed.2d 284 (1988). Similarly, the court said that "[w]hile it may be unfair to the state to permit a defendant to use psychiatric testimony without allowing the state a means to rebut that testimony, it certainly is not unfair to the state to provide counsel with notice before examining a defendant concerning future dangerousness." Powell v. Texas, 492 U.S. 680, 685, 109 S.Ct. 3146, 3150, 106 L.Ed.2d 551 (1989); see also State v. Bush, 942 S.W.2d 489 (Tenn. 1997).
"'While the United States Supreme Court has not directly addressed the issue, a substantial majority of state and federal jurisdictions have held that a defendant does not have the right to counsel during a psychiatric examination. In United States v. Byers, [740 F.2d 1104 (D.C. Cir. 1984)], for instance, the court distinguished the need for counsel before an examination, as opposed to during the examination itself, by pointing out that before examination
"'"[the defendant] was confronted by the procedural system at the point at which he had to decide whether to raise the insanity defense, a determination that would have several legal consequences, including the likelihood of a court order that he undergo a psychiatric examination....
"'"But at the psychiatric interview itself, [the defendant] was not confronted by the procedural system; he had no decisions in the nature of legal strategy or tactics to make --not even, as we have seen, the decision whether to refuse, on Fifth Amendment grounds, to answer the psychiatrist's questions. The only conceivable role for counsel at the examination would have been to observe...."
"'740 F.2d at 1118-1119.
"'Similarly, numerous courts have considered the "pragmatic" effect that counsel's presence, instead of rendering assistance, would impede or inhibit the examination. Moreover, a number of courts have stressed that the defendant's rights to a fair trial and to confrontation are sufficiently preserved by counsel's opportunity to interview the witnesses, review the results and information generated by the examination, conduct cross-examination of the psychiatric witnesses, and introduce defense witnesses. See, e.g., State v. Schackart, [175 Ariz. 494');">175 Ariz. 494, ] 858 P.2d [639] at 646-47 [(1993)].
"'Accordingly, we agree with the courts which have distinguished the "critical stage" prior to a psychiatric examination from the examination itself. We are convinced that the examination differs in purpose and procedure from other stages of the adversarial system, and that counsel's physical presence in a strictly passive, observational capacity, is not necessary to protect the defendant's related rights to a fair trial and to confront witnesses. In particular, the defendant has access to the information and results generated by the mental examination, as well as the right to interview, subpoena, and cross-examine the experts with regard to their methodology, opinions, and results.
"'Thus, we conclude that the Sixth Amendment of the U.S. Constitution and article I, § 9 of the Tennessee Constitution do not require the presence of counsel during a court-ordered mental examination. It follows that the trial court's order, which did not specifically permit counsel to attend and monitor the mental examination, did not violate the defendant's right to counsel.'
"State v. Martin, 950 S.W.2d 20, 25-27 (Tenn. 1997).
"Since the United States Supreme Court release of Atkins[v. Virginia, 530 U.S. 304 (2002)], one federal court has declined to extend the right to counsel to the actual mental evaluation for the reasons set out by the Tennessee Supreme Court:
"'[T]he court finds compelling the Government's representation that, according to its experts, "the presence of third parties during examinations can be disruptive and have adverse effects on the performance and outcome of the evaluation." (Gov't Mem. at 32.) The Second Circuit and district courts in this Circuit have repeatedly denied requests by counsel to be present at mental examinations because of these precise effects. See, e.g., Hollis [v. Smith], 571 F.2d [685] at 692 [(2nd Cir. 1978)]("It is difficult to imagine anything more stultifying to a psychiatrist, as dependent as he is upon the cooperation of his patient, than the presence of a lawyer objecting to the psychiatrist's questions and advising his client not to answer this question and that."); United States v. Baird, 414 F.2d 700, 711 (2d Cir. 1969)("[T]he presence of a third party, such as counsel ..., at [a mental] examination tends to destroy the effectiveness of the interview."); Marsch v. Rensselaer Cty., 218 F.R.D. 367, 371 (N.D.N.Y. 2003)("In federal court, [] the attendance of a subject's counsel or other observer is generally prohibited unless required by unusual circumstances."); Equal Emp't Opportunity Comm'n v. Grief Bros. Corp., 218 F.R.D. 59, 63-64 (W.D.N.Y. 2003)("[F]ederal law generally rejects requests that a party's attorney attend a [mental] examination."); Baba-Ali v. City of N.Y., No. 92-CV-7957 (DAB)(THK) (S.D.N.Y. Dec. 19, 1995)("The weight of authority is clearly against the presence of counsel at a [mental] examination.").'
"United States v. Wilson, 920 F.Supp.2d 287, 305 (E.D.N.Y. 2012)."

Callen v. State, [Ms. CR-13-0099, April 28, 2017] ___ So.3d ___, ___ (Ala.Crim.App.2017).

         In Ex parte Wilson, 571 So.2d 1251, 1258 (Ala. 1990), Wilson had argued that it was improper to force him to undergo a psychiatric examination by the State on a number of grounds; among them, he contended that his right to counsel was violated. The Court wrote:

"[W]e note that the defendant and his counsel were advised that the examination at Taylor Hardin would include any mitigating circumstances. In that regard, the defendant claims that the testimony of the state's expert violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. The defendant relies heavily on the case of Estelle v. Smith, 451 U.S. 454');">451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).
"We find Estelle distinguishable. In Estelle, the appellate court was required to make a finding of 'future dangerousness' in order to impose the death penalty, while in the present case no such requirement exists. The Estelle court held that the examination was improper because the defendant was not informed of his Miranda rights before he was examined by the State's expert and his attorneys were not informed that the scope of the examination would include the issue of 'future dangerousness.' In this case, the defendant's counsel was informed that the examination would encompass matters of mitigation and the defendant was informed of his Miranda rights prior to the examination."

         Here, the court ordered a pretrial psychiatric examination on Hicks; the State agreed that it was necessary. The State had also asked that Hicks be evaluated. Dr. Karl Kirkland, a clinical psychologist, testified that he was an expert for the court as opposed to an expert for one of the parties and that the purpose of his evaluation was not to suggest treatment. He testified that his report was

"a pre-trial evaluation to ensure that [Hicks's] constitutional rights are protected in the sense of that he can be present and is able to be present physically and psychologically, cognitively, and to cooperate with his attorneys and can continue to do that. And so the focus of the evaluation is on answering that competency to proceed question. And then to answer the question of what was his mental state like to the best that can be determined at the time of what he is alleged to have done --
"Again, my role is not to gather evidence either way ... and then to report that to the court."

(R. 2549-50.)

         In this case, Dr. Kirkland's report, dated March 1, 2015, states that the evaluation was conducted on February 21, 2015. Dr. Kirkland testified during sentencing on cross-examination that he had spent time with Hicks only once for two-and-a-half hours on February 21, 2015. He also reviewed documents and other materials. Dr. Kirkland opined that Hicks had antisocial personality disorder, but did not have a clinical disorder; he did not believe that Hicks was depressed or psychotic.

         Also, during the penalty phase of trial, Hicks presented the testimony of a clinical psychologist, Dr. Marianne Rosenzweig, whom he hired as a mitigation specialist for sentencing. The expert interviewed Hicks at length from August 2013 until June 2015. She also interviewed "a variety of people who've known" Hicks "in different ways across [his] lifetime." (R. 2576.) She also reviewed many pertinent documents and records. She concluded that he suffered from bipolar disorder with manic episodes.

         Although Hicks's Sixth Amendment right to counsel had attached at the time he was examined by Dr. Kirkland, [9] even if the right to counsel applied to the examination, Hicks was not "denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed." Compare Estelle v. Smith, 451 U.S. at 471. Hicks's counsel were present at the hearings when the evaluation was discussed and were aware of the arrangements and that Hicks would be evaluated for competency to stand trial, as well as his mental state at the time of the offense. Copies of the court's orders for outpatient evaluations of Hicks's competency to stand trial and his mental state at the time of the offense were also served on defense counsel. Apart from whether this pretrial psychological evaluation was a critical stage of Hicks's proceedings, Hicks's right to counsel was not violated.

"The right to counsel of choice -- either initially or continued representation -- is not absolute -- either for indigent or nonindigent defendants. See Wheat[ v. United States], 486 U.S. [153] at 159 [(1988)] ('The Sixth Amendment right to choose one's own counsel is circumscribed in several important respects.'); Ex parte Walker, 675 So.2d [408] at 410 [(1996)](Although 'an indigent defendant has a right to request counsel of his or her choice, the law is clear that the right of an indigent defendant to choose counsel is not absolute.'); Hamm[ v. State], 913 So.2d at 472 [(Ala.Crim.App.2002)] ('No amendment, statute, or caselaw guarantees the absolute right to representation by any particular counsel or by counsel of the accused's choice, even in a criminal trial.'); and Briggs v. State, 549 So.2d 155, 160 (Ala.Crim.App.1989) ('[T]he right to counsel of one's choice is not absolute, as is the right to assistance of counsel.') '[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.' Wheat, 486 U.S. at 159.
"With respect to the right to choose counsel initially, no criminal defendant has the right to insist on being represented by an attorney who is not authorized to practice law or who declines to represent the defendant. See, e.g., United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), and Wheat, 486 U.S. at 159. In addition, although 'the right [to counsel of choice] extends to indigent defendants, it does not afford them carte blanche in the selection of ... counsel.' [United States v. ]Myers, 294 F.3d at 206. Just as a nonindigent defendant has a presumptive or qualified right to retain counsel of his or her own choosing, an indigent defendant who secures pro bono counsel at no expense to the State has a presumptive or qualified right to choose that counsel. See Ex parte Walker, 675 So.2d at 410 ('The fact that [a criminal defendant] has inadequate resources to hire an attorney should be of no consequence, if [he or] she can secure representation at no expense to the State. Just as a defendant who can pay for legal counsel has a right to choose his or her own attorney, an indigent defendant can choose to be represented by an attorney who offers to represent the defendant at no expense to the State.'); and Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) ('[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.' (emphasis added)). However, an indigent defendant who requires counsel appointed by the court at the State's expense has no right to choose the counsel to be appointed. See Ex parte Moody, 684 So.2d 114, 121-22 (Ala. 1996) ('[A]n indigent defendant is not entitled to legal counsel of his choice, when counsel is to be paid by public funds, but rather is entitled to competent legal representation.'). '[A] defendant may not insist on representation by an attorney he cannot afford.' Wheat, 486 U.S. at 159. 'An indigent defendant has no right to compel the trial court to appoint an attorney of his own choosing.' Davis[ v. State], 261 Ga. [221] at 222, 403 S.E.2d [800] at 801 [(1991)].
"With respect to continued representation, however, there is no distinction between indigent defendants and nonindigent defendants. See, e.g., State v. Huskey, 82 S.W.3d 297, 305 (Tenn. Crim. App. 2002) ('[A]ny meaningful distinction between indigent and non-indigent defendants' right to representation by counsel ends once a valid appointment of counsel has been made.'). See also Morris v. Slappy, 461 U.S. 1, 23 n. 5, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (Brennan, J., concurring in the result) ('[T]he considerations that may preclude recognition of an indigent defendant's right to choose his own [court-appointed] counsel, such as the State's interest in economy and efficiency, ... should not preclude recognition of an indigent defendant's interest in continued representation by an appointed attorney with whom he has developed a relationship of trust and confidence.'); and Commonwealth v. Jordan, 49 Mass.App.Ct. 802, 733 N.E.2d 147 (2000) (recognizing that an indigent defendant with court-appointed counsel must be treated the same as a nonindigent defendant with retained counsel when it comes to removing that counsel). As the Florida Supreme Court explained in Weaver v. State, 894 So.2d 178 (Fla. 2004):
"'The general rule is that an indigent defendant has no right to choose a particular court-appointed attorney. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989); Capehart v. State, 583 So.2d 1009, 1014 (Fla. 1991) (citing Hardwick v. State, 521 So.2d 1071, 1074 (Fla. 1988)); Harold v. State, 450 So.2d 910, 913 (Fla. 5th DCA 1984) ("An indigent defendant does not have the right to pick and choose the lawyer who will represent him."). Thus, if a trial court decides that court-appointed counsel is providing adequate representation, the court does not violate an indigent defendant's Sixth Amendment rights if it requires him to keep the original court-appointed lawyer or represent himself. Foster v. State, 704 So.2d 169, 172 (Fla. 4 th DCA 1997).'"

Lane v. State, 80 So.3d 280, 295-96 (Ala.Crim.App.2010.)

         The record indicates that Hicks was represented by a number of different attorneys and that he struggled to find counsel who would work with him. He was represented by competent counsel, although not Hicks's most desired counsel, throughout the proceedings. Counsel indicated to the court that, although Hicks had filed grievances about counsel, his representation of Hicks was and continued to be diligent until his withdrawal. The specific misstatement and alleged ineffectiveness cited by Hicks did not amount to the absence of counsel. Hicks made no complaint that his counsel at the time of the evaluation was not present, rather he maintained that he wanted different counsel. He did not later object when he was represented by subsequent counsel and Dr. Kirkland's report was admitted or Dr. Kirkland testified. Based on the foregoing, Hicks is entitled to no relief on this claim.


         Hicks argues that Dr. Kirkland's testimony and his pretrial psychiatric report were illegally admitted because, he argues, the report and testimony were admitted during the penalty phase and, therefore, the purpose of their admission was not to determine competency. Rather, Hicks argues, the testimony and report were introduced as evidence as to the conclusion both that Hicks was competent and that he suffered from antisocial personality disorder. Hicks argues that this evidence was inadmissible because he did not enter a plea of not guilty by mental disease or defect, because he was not informed that his evaluation could be used against him in violation of his Fifth Amendment rights, and because, he says, he was denied his right to counsel in violation of his Sixth Amendment rights. Hicks did not object at trial on any of those grounds; therefore, any error must amount to plain error. Rule 45A, Ala. R. App. P. Hicks's claim of error based on the violation of his Sixth Amendment rights has previously been discussed and decided adversely to him. See Part I, supra. As discussed below, Hicks is not entitled to relief on the other issues.


         Hicks's Fifth Amendment rights against self-incrimination were not violated by the introduction of Dr. Kirkland's testimony or report regarding his psychological evaluation of Hicks. Hicks contends that he did not knowingly and intelligently waive his Fifth Amendment privileges prior to cooperating in the examination because he was told that the examination was intended only to determine his competency to stand trial.

         In the present case, the pretrial psychological examinations were discussed extensively in pretrial hearings. Dr. Karl Kirkland was ordered by the court to conduct a pre-trial evaluation to determine "competency to proceed" and "what [Hicks's] mental state [was] like to the best that can be determined at the time of what he is alleged to have done." (R. 2549.) Hicks was aware of the purpose of the evaluation before trial through discussions with the court. Dr. Kirkland's report states:

"Prior to the beginning the evaluation, the defendant was informed as to the purpose of the evaluation and the limited confidentiality involved. He was told that the results will be submitted in the form of a report to the Court, the defense attorney, and the District Attorney. He was also informed that the results could be used in Court proceedings either through testimony of the examiner and/or the written report to assist in reaching decisions concerning his competency to stand trial, but that none of the information could be used as evidence against him concerning his guilt of any charge. The defendant indicated that he understood the purpose and the limited confidentiality of the evaluation, agreed to proceed, and signed the notification form."

(C.337.) Moreover, during direct examination, Dr. Kirkland testified concerning his evaluation of Hicks:

"[Hicks] was able to understand the -- I'm required to inform him why I'm there and to tell him about how that affects his rights and the trial proceeding. He was able to understand that. And he agreed to participate in the evaluation, signed the release form and proceeded."

(R. 2552.) Thus, Hicks was aware of the consequences and purpose of the evaluation in determining his competency to stand trial and mental state at the time of the offense.

         Moreover, Hicks requested and received additional funding for his mitigation expert, Dr. Rosenzweig. It was noted that one of Hicks's early appointed attorneys filed a motion under the Health Insurance Portability and Accountability Act that "sought some of Hicks's psychological records for his mitigation expert." (Pretrial R. 33, C.269.) The expert, according to defense counsel, had completed most of her work at the time of the pretrial hearing and would be ready for trial. (Pretrial R. 43, 70, 78.) It was clear that the defense intended to rely on psychological evaluations for mitigation purposes.

         Hicks was aware that the psychological examinations were intended to be used for determining his competency to stand trial, his mental state at the time of the offense, and sentencing purposes. The evaluations were not used for evidence of guilt or as evidence of future dangerousness.[10]

"A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. Because respondent did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to Dr. Grigson to establish his future dangerousness. If, upon being adequately warned, respondent had indicated that he would not answer Dr. Grigson's questions, the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose. In such circumstances, the proper conduct and use of competency and sanity examinations are not frustrated, but the State must make its case on future dangerousness in some other way."

Estelle v. Smith, 451 U.S. at 468-69 (footnote omitted).

         There was no Fifth Amendment violation in the admission of Dr. Kirkland's report or testimony during the penalty phase.


         Although Hicks neither entered a plea of not guilty by reason of mental disease or defect nor requested a mental evaluation, there was no error, plain or otherwise, in Dr. Kirkland's testimony and the admission of his report during the penalty phase of Hicks's trial.

         Dr. Kirkland's testimony and report were relevant to rebut the testimony of Hicks's mitigation expert, Dr. Rosenzweig. Rule 11.2(b), Ala. R. Crim. P. Hicks introduced mitigation evidence concerning his mental and psychological state through the testimony and evaluation of Dr. Rosenzweig, who extensively evaluated Hicks before trial. "[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring specially).

         The State may properly rebut evidence of mitigating circumstances. See McWilliams v. State, 640 So.2d 982, 988-991 (Ala.Crim.App.1991), aff'd in part, remanded in part, 640 So.2d 1015 (Ala. 1993). See also George v. State, 717 So.2d 844, 848 (Ala. 1996). If the defendant presents mitigation evidence, the burden then shifts to the State to disprove the factual existence of the defendant's mitigating circumstance by a preponderance of the evidence. § 13A-5-45(g), Ala. Code 1975.[11] "In fact, the State ... has a greater burden in disproving the existence of mitigating circumstances than the defendant has in introducing [evidence of] mitigating circumstances." Dill v. State, 600 So.2d 343, 362 (Ala.Crim.App.1991). The State attempted to rebut the evidence offered by Dr. Rosenzweig through the testimony and evaluation of Dr. Kirkland.

         Any evidence that is probative and relevant to sentencing is properly presented in a capital-sentencing hearing. Section 13A-5-45(d), Ala. Code 1975, provides that "[a]ny evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements."

         From a thorough review of the record, it is clear that the evidence the State presented at the sentencing phase of the trial pertaining to Hicks's psychological or mental state was offered to rebut the evidence of mental instability Hicks offered in mitigation of the capital offense for which he was convicted. This evidence was probative and relevant to the sentencing. The trial court found as a mitigating circumstance that Hicks suffered from extreme mental or emotional disturbance and accorded the evidence of Dr. Rosenzweig supporting this mitigating circumstance some weight. Thus, the State properly introduced evidence to rebut this mitigating circumstance. Hicks is entitled to no relief on this issue.


         Hicks contends that the court improperly failed to make the requisite finding of competency and improperly refused to grant defense counsel's "Emergency Motion for a Psychiatric Evaluation to Determine Competency to Stand Trial." However, our analysis shows that Hicks is not entitled to any relief on this claim.


         Hicks argues that the court never made a determination of competency following the pretrial examination, although it was the court's duty to do so. However, the record contains two competency evaluations of Hicks before trial, one ordered by the court, both of which found him to be competent, and the court then proceeded to trial. Before trial, the court conducted a hearing to resolve outstanding motions and the following transpired:

"THE COURT: ... We have done the competency evaluation of Mr. Hicks, at least once if not more.
"[Prosecutor]: Yes sir.
"[Defense counsel]: Yes, sir."

(Pretrial R. 69.)

         Throughout the pretrial hearings, it is clear that the court determined that Hicks was competent to stand trial. Exact language is not required in such a determination or ruling. Owens v. State, 597 So.2d 734, 736 (Ala.Crim.App.1992)("It is clear to us that the circuit court did make a determination as to the appellant's competency, even though the record does not reveal any clear statement of that fact before the trial. For instance, there was testimony from two doctors, one from Taylor Hardin, the other from East Central Mental Health-Mental Retardation, Inc., who each performed different evaluations of the appellant prior to trial. Both of these doctors testified during the trial that the appellant was competent to stand trial. Also, the very fact that the circuit judge commenced the trial after ordering the evaluations to be conducted makes it clear that the appellant had been found competent.").

         The court mentioned the finding of competency in the reports and proceeded to trial after having clearly considered those reports. There was no error on this ground.


         Further, the court did not err in denying Hicks's "emergency" motion to determine competency. Hicks had undergone two prior competency evaluations, and there was no showing of abuse of discretion by the court in determining that a third competency evaluation was unnecessary.

         Rule 11.3(a), Ala. R. Crim. P., provides, in pertinent part:

"If the circuit court determines that reasonable grounds for an examination exist, it shall either appoint a psychiatrist or psychologist to examine the defendant and to testify regarding the defendant's mental condition, or order that an examination be conducted by a psychiatrist or psychologist appointed by the commissioner of the Department of Mental Health and Mental Retardation."

         Rule 11.3(d), Ala. R. Crim. P., provides:

"The circuit court may, in its discretion, appoint additional experts and may order the defendant to submit to physical, neurological, or psychological examinations, when the court is advised by the examining psychologist or psychiatrist that such examinations are necessary for an adequate determination of the defendant's mental condition."

         In this case, Hicks was given a pretrial mental evaluation to determine his competency to stand trial and his mental state at the time of the offense after the court acknowledged concerns regarding Hicks's competency. He was determined to be competent. Hicks was also given an extensive psychological evaluation by his own expert who met with him nine times. There is no indication in the record that a third evaluation was warranted.

"'A defendant is mentally incompetent to stand trial or to be sentenced for an offense if that defendant lacks sufficient present ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant.' Rule 11.1, Ala. R. Crim. P. 'The defendant bears the burden of persuading the court that a reasonable and bona fide doubt exists as to the defendant's mental competency, and this is a matter within the discretion of the trial court.' Cliff v. State, 518 So.2d 786, 790 (Ala.Crim.App.1987). 'In order to overturn the trial judge's competency determination, we must find that the judge abused his or her discretion.' Tankersley v. State, 724 So.2d 557, 565 (Ala.Crim.App.1998). '"In the absence of any evidence, the mere allegations by counsel that the defendant is incompetent to stand trial do not establish reasonable grounds to doubt the defendant's sanity and warrant an inquiry into his competency."' Id., quoting Cliff, 518 So.2d at 791.
"'"[N]ot every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges." [Card v. Singletary, 981 F.2d 481] at 487-88 [(11th Cir. 1992)] (quoting United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir.), cert. denied, 469 U.S. 1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985)). Similarly, neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial. McCune v. Estelle, 534 F.2d 611, 612 (5th Cir. 1976). The fact that a defendant has been treated with anti-psychotic drugs does not per se render him incompetent to stand trial. Fallada [v. Dugger], 819 F.2d [1564] at 1569 [(11th Cir. 1987)].'

"Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995)." Hodges v. State, 926 So.2d 1060, 1068-69 (Ala.Crim.App.2005).

         Because Dr. Kirkland had already determined Hicks to be competent to stand trial and there was no other indication that an additional evaluation was necessary, the court did not abuse its discretion in denying Hicks's "emergency" motion to determine competency.


         Hicks alleges that the trial court improperly allowed Chance Norris to testify because, according to Hicks, Chance was not a competent or qualified witness. Specifically, Hicks argues that the State failed to show that Chance had any knowledge of the murder and that Chance was allowed to testify, although he was not administered an oath or affirmation prior to his testimony. Hicks is not entitled to relief on this claim.


         Based on our review of the record, we conclude that Chance was a competent witness. After the court asked Chance a few preliminary questions, the following transpired during initial questioning by the prosecutor:

"Q. And how old are you?
"A. Eight.
"Q. And I know that you can talk louder than that in the mic[rophone]. Can you talk really loud for me?
"Did you just have a birthday?
"A. Yes.
"Q. Last week? Did you turn 8 last ...

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