from Mobile Circuit Court (CC-12-4687)
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
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.
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.
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
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,  five-year-old Jatton,  and four-year-old
Chance. 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
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.
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. 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. 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.
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.
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.
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
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.
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.
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
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
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
"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
"'"'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
"Centobie v. State, 861 So.2d 1111, 1118
Phillips v. State, [Ms. CR-12-0197, December 18,
2015] ___ So.3d ___, ___ (Ala.Crim.App.2015).
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.
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.)
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.) 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 COURT: Yes.
"THE DEFENDANT: I am now without counsel at this moment;
"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
"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.
(Pretrial hearings R. 53-56.)
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
(Pretrial hearings R. 59.)
February 19, Hicks's motion for appointment of counsel
was granted and then current counsel was allowed to
withdraw;new counsel was appointed.
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
did not object at trial or before trial on these
grounds; 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
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
"'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
"'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.
"'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
"'"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
"'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  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.
"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  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]
"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).
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
"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
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."
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.
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
Hicks's Sixth Amendment right to counsel had attached at
the time he was examined by Dr. Kirkland,  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.  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  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
"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.
 at 222, 403 S.E.2d  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
Lane v. State, 80 So.3d 280, 295-96
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
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.
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.
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
(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.
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
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.
"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
Estelle v. Smith, 451 U.S. at 468-69 (footnote
was no Fifth Amendment violation in the admission of Dr.
Kirkland's report or testimony during the penalty phase.
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.
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.,
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. "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.
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."
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.
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.
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.)
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.").
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.
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.
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."
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
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  at 1569 [(11th Cir. 1987)].'
"Medina v. Singletary, 59 F.3d 1095, 1107 (11th
Cir. 1995)." Hodges v. State, 926 So.2d 1060,
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.
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
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?
"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?
"Q. Last week? Did you turn 8 last ...