Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
The appellant, John Jones, was convicted of murdering Alexis Hunter during the course of a robbery, an offense defined as capital by § 13A-5-40(a)(2), Ala. Code 1975. Jones, who was 17 years of age at the time of the murder, was sentenced to life imprisonment without the possibility of parole. This appeal followed.
The State's evidence tended to show that on December 21, 2013, Alexis Hunter was shot after she refused to give Jones her cellular telephone. The coroner testified that Alexis died instantly after a bullet entered her mouth and lodged in her brain.
Shemeria Johnson testified that she, Malisha Edwards, and Alexis Hunter were walking on the track at Selma High School going back to her house when three men approached them. The men were identified as Larry Hunter,1 Pharlando Pickett, and John Jones. Johnson testified that the man named John told Alexis "to give it up and [Alexis] said I'm not giving you shit." (R. 243.) Johnson said that Jones shot Alexis after Alexis refused to give Jones her cellular telephone. (R. 244.)2 After Jones shot Alexis, Johnson said, Johnson ran and Larry followed her and took her cellular telephone. Immediately after the shooting, Johnson and Edwards identified Jones as the man who shot Alexis.
Although Jones was charged and convicted of capital murder, he was not sentenced to death; therefore, we do not apply the plain-error standard of review. See Rule 45A, Ala. R. App. P.
Jones first argues that the circuit court erred in denying his attorney's motion to withdraw. Specifically, Jones argues that the circuit court failed to inquire into "ethical issues" the attorney said he had and that the failure violated Jones's state and federal right to the effective assistance of counsel. (Jones's brief, p. 17.)
The record shows that in September 2019 counsel moved to withdraw from representing Jones. The entire motion stated: "Counsel is required to withdraw pursuant to the Alabama Rules of Professional Conduct." (C. 180.) At a pretrial hearing, the following occurred:
"[Defense Counsel]: Well, first, I have a motion to withdraw and the others are, kind of — ought to be argued at a different date if you grant that. It's based on the Rules of Professional Conduct, several, and I would be happy, if the Court wants to, talk to you in camera about it but It hink there would be a problem for me to say anything either publicly or in the presence of the prosecution.
"THE COURT: Well, I don't know if an in camera conversation is not an ex parte. If you want to be heard on your motion to withdraw, I guess you could say it.
"[Defense counsel]: Well, the Court can, as is customary, accept my word that I have an ethical matter that compels that.
"THE COURT: I will deny the motion to withdraw."
(R. 82-83.) A few minutes later, counsel stated: "[T]he issues upon which I sought withdrawal, are complex...." (R. 86.) The above-quoted exchanges are the extent of the facts surrounding this issue that appear in the record. Counsel made no offer of proof and gave the court no indication of what constituted the "ethical issues" to which Jones refers in his brief on appeal.
"`[T]he decision whether to remove an appointed counsel and appoint another counsel for defendant is within the sound discretion of the trial court.' Crawford v. State, 479 So.2d 1349, 1355 (Ala. Cr. App. 1985). See also, Tudhope v. State, 364 So.2d 708 (Ala. Cr. App. 1978). Moreover, the right to counsel of one's choice is not absolute, as is the right to assistance of counsel. United States v. Gray, 565 F.2d 881, 997 (5th Cir. 1978), cert. denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed2d. 807 (1978). The right to choose counsel may not be subverted to obstruct the orderly procedure in the court or to interfere with the fair administration of justice. United States v. Sexton, 473 F.2d 512 (5th Cir. 1973)."
Briggs v. State, 549 So.2d 155, 160 (Ala. Crim. App. 1989).
"To warrant a substitution of counsel, there must be an actual conflict of interest or an irreconcilable conflict between counsel and the defendant so great that it resulted in a total lack of communication that prevented an adequate defense." Floyd v. State, 289 So.3d 337, 383 (Ala. Crim. App. 2017).
This Court in Scott v. State, 937 So.2d 1065 (Ala. Crim. App. 2005), addressed a similar issue and stated:
"[The appellant] contends that an actual conflict of interest existed. Defense counsel presented no evidence to support this assertion when they filed the motion to withdraw, and they did not present any evidence in support of this claim during the hearing on the motion for a new trial. In fact, when defense counsel raised the issue in the motion for a new trial, they stated that they had moved to withdraw `because of the conflict that was created, not by — not by anyone other than the defendant, himself. He created a conflict, not by — it wasn't created by the Court, it wasn't created by the State, but it was created by the defendant and some potential witnesses.' (R. 1152-53.)
"As the State has argued, Scott failed to demonstrate either that a conflict of interest existed or that the alleged conflict adversely affected counsel's performance. Without such proof, Scott has failed to establish a constitutional violation. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
"Furthermore, the motion to withdraw was made on the morning of trial, after nearly three years had passed from the date of the crimes; without question, the witnesses who had appeared for trial would have been inconvenienced if the motion had been granted. Finally, because Scott failed even to allege any facts regarding the nature of the controversy, it was possible, if not probable, that new counsel would be confronted with the same conflict. These factors, too, supported the trial court's denial of the motion to withdraw."
Scott v. State, 937 So. 2d at 1081-82.
Jones presented no evidence to support the motion to withdraw even after the circuit court gave counsel an opportunity to provide an explanation. Without more, we cannot say that the circuit court abused its considerable discretion in denying counsel's motion to withdraw. See Scott, supra. Accordingly, Jones is due no relief on this claim.
Jones also contends that the circuit court erred in finding that he was mentally competent to stand trial. Specifically, Jones argues that the court ignored the medical testimony and additional evidence allegedly showing that Jones was incompetent.
"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 record shows that in August 2015 Jones's counsel moved that he be mentally evaluated to determine his mental state at the time of the murder and his competency to stand trial. (C. 84-85.) In this motion, Jones alleged that he had been diagnosed with a mental deficiency and with Attention-Deficit/Hyperactivity Disorder ("ADHD") and that counsel questioned whether he could meaningfully assist in his defense at trial. (C. 85.) An affidavit, executed by Jones's mother, Bessie Jones, stated that at the age of six Jones was diagnosed with borderline intellectual functioning and that he had been in special-education classes. In response to this motion, the court ordered that Jones be sent to Taylor Hardin Secure Medical Facility ("Taylor Hardin") so that he could be evaluated.
In November 2015, a report prepared by Dr. Robert L. Bare, a psychologist, was submitted to the circuit court. Dr. Bare found that Jones did not appear to understand the charges against him. (C. 537-47.)3 However, Dr. Bare cautioned: "I believe Mr. Jones may have attempted to exaggerate intellectual and psychiatric disabilities that he may experience and that he may not have been providing information in an entirely forthright manner." (C. 542-43.) Dr. Bare's findings were based on a test that he administered to Jones called the Inventory of Legal Knowledge. (C. 545.) Dr. Bare further stated:
"During the current evaluation, Mr. Jones's presentation was suggestive of an individual with severe cognitive limitations who reported active auditory and visual hallucinations, but this does not appear consistent with previous records. Testing conducted during the current evaluation suggested that Mr. Jones was intentionally answering questions related to issues of his competency in an incorrect manner. I believe that if Mr. Jones attempted to answer questions in an appropriate manner, he might demonstrate the skills necessary to assist in his defense."
(R. 546.) Dr. Bare wrote that Jones's answers showed that he did not understand the charges against him, that he could not explain the role of court personnel, and that he was unaware of whether defendants were required to testify. Based on the severity of the charges against Jones, Dr. Bare recommended that Jones be admitted to Taylor Hardin to undergo treatment and observation. (C. 546.) Dr. Bare deferred making a recommendation concerning Jones's mental state at the time of the offense until "the court determines whether Mr. Jones is capable of proceeding with his defense." (R. 546.)
In December 2015, the parties stipulated that Jones was not competent to stand trial, and the circuit court ordered that Jones be committed to Taylor Hardin. The criminal proceedings against Jones were continued pending a finding that he was competent to proceed to trial.
In July 2016, Jones was committed to Taylor Hardin. In November 2016, Jones was evaluated by Dr. Sarah Ryan, a psychologist. Dr. Ryan detailed the numerous documents that she examined concerning Jones and the audio recordings that she had been given of visits at the jail between Jones and several unidentified individuals. In one recording, Dr. Ryan said, "Mr. Jones appears to be discussing, among other things, a `deal that his attorney was looking into, the possibility of being sentenced to prison, the possibility of receiving `credit' (e.g., such as for time served), not having a bond, and his desire to obtain employment `when I get out.'" (R. 458.)4 Dr. Ryan noted that Jones had told her that he had a long history of hearing voices and having hallucinations, but, she said, the hallucinations were not consistent with "known symptoms of serious mental illness" and the staff had never seen Jones responding to hallucinations during his stay at Taylor Hardin. (R. 42.)
In conclusion, Dr. Ryan stated: "At this time Mr. Jones has not demonstrated the capacity to understand the legal system, the facts of his case, and assist in his defense." She recommended that Jones remain at Taylor Hardin for "an additional period of competency restoration treatment where he can continue to receive medication to treat his symptoms and education about the legal system." (R. 468.)
Thereafter, the circuit court received periodic updates on Jones's mental condition pursuant to Rule 11.6(d), Ala. R. Crim. P.5 Some of the updates noted that Jones was taking medication and was attending classes concerning the legal system. (C. 106.) An update dated February 2017, and authored by Dr. Ryan states: "On January 17, 2017, Mr. Jones was enrolled in a class that teaches patients about the legal system. Thus far Mr. Jones has attended four classes. At times he was described as an active participant in the class while at other times his participation level was described as passive." (C. 106.)
In July 2017, Dr. Ryan evaluated Jones again and noted that Jones had reported earlier in the year that, after being on medication, he was no longer hearing voices. Dr. Ryan wrote:
"Multiple providers consistently noted [Jones] benefitted from education and demonstrated comprehension about various topics such as his symptoms, hospital-related issues, aggressive behavior, and medication. His psychiatrist noted the possibility that he was embellishing his symptoms.
"Mr. Jones continued to participate in a class that teaches patients about the legal system. His instructor noted he displayed knowledge about courtroom personnel and legal topics during class, then provided inaccurate responses when his knowledge was informally assessed outside of class to determine his progress."
(C. 476-77.) Dr. Ryan's report further stated:
"Attempts to assess Mr. Jones's competency to stand trial were made on June 2, 2017, and June 7, 2017. During the current interviews he provided incorrect responses to questions he answered correctly in November 2016. For example, he provided incorrect responses to questions about the role of the District Attorney, Judge, jury, and witnesses. His responses to questions were also inconsistent within the current interview. For example, he initially described the District Attorney's role as `to help me' and `represent the codefendant.' Later during the interview he described the District Attorney as potentially against the defendant."
In conclusion, Dr. Ryan wrote:
"Now that Mr. Jones's symptoms of ADHD are well controlled, based on his level of intellectual functioning, he should be able to learn information to fill in gaps in his knowledge so long as he remains compliant with his medication. There is nothing that occurred between interviews that would result in Mr. Jones losing previously acquired knowledge. Therefore, it can be assumed he continues to retain knowledge he previously possessed and should be able to learn new information about the legal system and the facts of his case through discussion with others.
"Although Mr. Jones did not demonstrate his capacity to proceed to trial during the current interview, in my opinion, he is not currently experiencing symptoms of mental illness or cognitive impairment that would cause him to lack the capacity to understand the legal proceedings, facts of his case, or assist his attorney in his defense; however, as a result of immaturity, he does not appear to fully appreciate the seriousness and potential consequences associated with his current charge. Limited appreciation for potential consequences is not uncommon for individuals in late-adolescence and young adulthood. Whether or not immaturity may result in a determination of incompetency to stand trial is properly a matter for the court to decide."
After spending 50 weeks in Taylor Hardin, Jones was released from Taylor Hardin in July 2017 and was transferred to the Dallas County jail. (C. 110.) The circuit court ordered that Jones's medications "be maintained... until the competency hearing." (C. 110.) Jones's counsel then moved that he be granted extraordinary expenses to hire an independent psychologist to evaluate Jones. That motion was granted, and Jones was evaluated by Dr. John Goff, a clinical psychologist. (C. 154-64.)
In December 2018, the court ordered that Jones again be evaluated to determine his competency to stand trial. At this time, Jones was evaluated by Dr. Kale Kirkland, a psychologist. (C. 224-33.)
A competency hearing was held in June 2019. At this hearing, Dr. Kirkland and Dr. Goff testified. Dr. Kirkland testified that he reviewed numerous documents related to Jones's mental-health history and that he tried to speak with Jones on February 11, 2019, but Jones had "refused the transport at the request of his attorney." (R. 30.)6 Another appointment was scheduled, and on February 13, 2019, Jones was transported to Dr. Kirkland's office. Jones's attorney was present during this interview. Dr. Kirkland testified:
"[Jones] provided me with — he was cooperative in providing background information. He answered most questions about his history. He did not elaborate greatly, but he was cooperative during that aspect of the assessment. That changed when we began discussing his case as getting to the point where it began to ask him questions about the legal proceedings against him and his knowledge of courtroom procedures and his effort dropped off greatly at that point.
"Dr. Ryan, at Taylor Hardin Secure Medical Facility, noted having reviewed an audio recording of a jail visit from a May 2, 2015, between Mr. Jones and several individuals as well as several phone conversations that Mr. Jones had had from the jail. She noted that he appeared to be discussing a deal that his attorney was looking into, the possibility of being sentenced to prison, the possibility of receiving credit, such as: For time served, not having a bond, and his desire to obtain employment when he got out. There was a July 23, 2016, recording where he appeared to be discussing getting a paid lawyer, bond, and plans to return to school and get his trade going with a welding job."
(R. 33.) He said that at the time he spoke to Jones, Jones was not experiencing any hallucinations, that he was not seeing things, and that he was not hearing things. (R. 35.)
Jones had been given an IQ test in 2004, Dr. Kirkland said, and his full-scale IQ was scored at 66. In 2013, Jones was again tested and his IQ was 68. "[Jones] exhibited a strength in verbal knowledge at 79 and he had a weakness in processing speed at 65." (R. 34.) He noted that Dr. Goff had given an IQ test to Jones before trial and found that Jones's IQ was 51. The following occurred:
"[Prosecutor]: What is the likelihood of someone having a overall score of 68 with a verbal of 79 and a processing of 65 and approximately four or five years later having an IQ of 51?
"[Dr. Kirkland]: Generally, that would be a pretty low likelihood of that occurring. You would expect there to have been some type of neurological injury or something to that effect for that to be a — for those scores to all be valid measures of his IQ at the time that they were administered raising concerns about his effort."
(R. 34.) It was his opinion, Dr. Kirkland testified, that Jones was competent to stand trial and that he had been exaggerating symptoms and malingering. (R. 38; 51-52.) On cross-examination, Dr. Kirkland testified that he was currently on probation from his "licensing authority"7 but he was asked no further questions related to his probationary status.
Dr. Goff testified that he is a clinical neuropsychologist and that he evaluated Jones. As part of his evaluation, Dr. Goff conducted an IQ test on Jones; the results of that test indicated that Jones's IQ was 51. Dr. Goff said that it was his opinion that Jones's low IQ score was a sign of his severe mental illness.
Dr. Goff further wrote in his report that he believed that Jones suffers from schizophrenia. (C. 163.) The following occurred at the competency hearing:
"[Defense counsel]: Dr. Kirkland has testified here today that he could find, other than your diagnosis of schizophrenia, no other reference to that. Do you know of any other diagnosis of schizophrenia or schizoaffective [disorder] or anything?
"[Dr. Goff]: When he was admitted to Taylor Hardin Secure Medical Facility, the admitting diagnosis was a major depressive disorder with psychotic features and there was a rule-out for schizoaffective disorder. As of —
"[Defense counsel]: What does that mean?
"[Dr. Goff]: Well, schizoaffective disorder is a psychotic illness akin to schizophrenia that includes both thought and disorders of mood — it's a little lesser chart — with predominance for the disorder of thought. So the idea from the psychiatrist, Dr. [Alfred F.] Brem, as he explains it in the notes, is that the has hallucinations and delusions and unusual thinking that's associated with fluctuations in his mood. So in March of the year of his hospitalization there, Dr. Brem diagnosed him with a schizoaffective disorder. Initially, he was schizoaffective disorder depressed which is a type and then the next month with schizoaffective disorder bipolar type."8
When asked if Jones was competent to stand trial, Dr. Goff stated:
"Well, It hink there are very, very substantial impediments. I will tell you that the way I was trained I'm going to defer to the Court in terms of the ultimate issue in this case.
"I think that he's intellectually disabled and severely mentally ill. I don't think he can follow case events. I don't think he knows much about what's going on right now. So therefore, he's certainly at a very distinct disadvantage in any kind of venue such as this."
After the hearing, the circuit court issued the following order finding Jones competent to stand trial:
"This Court received evidence and heard testimony on June 14, 2019, in regards to [Jones's] competency to stand trial for capital murder during a robbery.
"The defendant was examined by Dr. Robert Bare of the Alabama Department of Mental Health and Mental Retardation on November 23, 2015. It was noted in Dr. Bare's report and thus testified to by Dr. Kale Kirkland, that [Jones] was administered the WISC-IV Intelligence Quotient Exam in 2013 approximately 1 year prior to being charged with capital murder. It was testified to that [Jones] scored a 68 with a strength in verbal knowledge of 79 and a weakness in processing speed at 65.
"It is noted in Dr. Bare's report that during his examination of [Jones] that said [Jones] stated that there was a shadowy figure standing on the table but [Jones] showed no behavioral indications that [Jones] was experiencing hallucinations. Dr. Bare at this point administered the Inventory of Legal Knowledge exam and it was determined that [Jones] was malingering by knowing the correct answer but intentionally choosing the incorrect answer. Dr. Bare's recommendation was to admit [Jones] to Taylor Hardin Medical Facility for up to twelve months for observations and to administer psychotropic medications. Dr. Bare noted that his recommendation for inpatient treatment was due to the fact that [Jones] had no history of hallucinations or being treated for that type of mental illness.
"On December 22, 2016, [Jones] was again evaluated by the Alabama Department of Mental Health and Mental Retardation's Dr. Sarah Ryan. She stated in her report that jail calls were provided to her in regards to discussions between [Jones] and unknown persons. During these calls [Jones] discussed with the unknown persons about getting a paid lawyer, plea agreements, bond issues, being sentenced to prison, credit for time served and getting employment when he got out of jail. He also discussed another inmate and talked about why the inmate had not gotten his record expunged. The court finds that these are rather difficult legal terms for someone who is intellectually disabled, but [Jones] did not seem to have any trouble discussing and understanding these legal terms.
"While he was admitted to Taylor Hardin Medical Facility, [Jones] stated that he continued to have hallucinations but it is stated by the medical examiner that [Jones] did not display the type of mental illness that would cause hallucinations.
"In July of 2017, [Jones] was released from Taylor Hardin Medical Facility and returned to the Dallas County jail with the recommendation that he continue his education of the legal system through his attorney.
"A hearing was held on June 14, 2019, with both Dr. Kale Kirkland and Dr. John Goff testifying as to their reports and findings.
"Dr. Goff stated that he performed several tests on [Jones,] one of which was an Intelligence Quotient Exam. Dr. Goff testified that [Jones] scored a 51 on the exam and furthermore, Dr. Goff testified that it did not appear [Jones] was malingering. Dr. Kirkland testified that it would be nearly impossible for [Jones] to score a 51 on the IQ test based on his previous IQ scores without malingering or feigning.
"Dr. Kirkland testified that during his examination of [Jones], it was apparent [Jones] knew the answers to the questions asked but chose to give incorrect or sub-standard answers, which was a strong indication of malingering and feigning. Dr. Kirkland stated that it was his expert opinion that [Jones] was competent to stand trial.
"The Court had the opportunity to observe [Jones] during the hearing, in which [Jones] was alert, attentive and well behaved. [Jones] seemed to listen and observe the process and seemed to understand what was occurring. [Jones] did not appear to be confused or show any signs that he did not understand what was occurring the hearing. It is furthermore stated that three separate mental health professionals determined that [Jones] was malingering and was competent to stand trial with continued legal education and the defense was granted extraordinary funds to hire an expert to help with educating [Jones].
"Having reviewed the written reports submitted by the examining psychiatrist/psychologist regarding the present mental condition of [Jones] pertaining to his sufficient present ability to assist in his defense, by consulting with counsel, with a reasonable degree of rational understanding of the facts and the legal proceedings against [Jones] and finding that reasonable grounds do not exist to doubt [Jones's] mental competency, the court hereby finds [Jones] competent to stand trial."
"[A] defendant has the burden of production at a competency hearing. He must come forward with evidence that he is not competent to stand trial." Lackey v. State, 615 So.2d 145, 152 (Ala. Crim. App. 1992).
"The defendant carries the burden of showing that he is incompetent to stand trial by a clear preponderance of the evidence. State v. Machon, 410 So.2d 1065 (La.1982); State v. Weber, 364 So.2d 952 (La. 1978); State v. Morris, 340 So.2d 195 (La.1976). The trial court's determination as to the defendant's capacity is entitled to great weight on appeal and will not be overturned absent an abuse of discretion. State v. Brogdon, 426 So.2d 158 (La. 1983), aff'd 457 So.2d 616 (La. 1984), cert. den., 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862, rehearing den., 471 U.S. 1111, 105 S.Ct. 3547, 87 L.Ed.2d 670 (1985); State v. Rochon, 393 So.2d 1224 (La. 1981); State v. Sanders, 463 So.2d 1022 (La. App. 3rd Cir. 1985). Where there is conflicting medical testimony, the trial judge's determination is entitled to especially great weight. State v. Williams, 381 So.2d 439 (La.1980); State v. Jones, 376 So.2d 125 (La. 1979); State v. Morris, supra.
"... It has been established that while a thorough mental examination is necessary, the final determination of a defendant's competency to stand trial must rest in a judicial authority and is a legal issue rather than a medical issue. State v. Qualls, 377 So.2d 293 (La. 1979). In making this determination, the judge should reach an independent evaluation of defendant's capacity to participate in his defense, rather than depending on the conclusory reports of the sanity commission. State v. Jones, supra."
State v. Huckaby, 495 So.2d 404, 407 (La. App. 3rd Cir. 1986).
"We start from the premise that a defendant's competency is a legal question that is properly reserved for the courts. The two-prong test for competency asks `whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.' Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (internal quotation marks omitted). In applying this test, the district court must weigh evidence and apply evidentiary standards. See United States v. Nichols, 56 F.3d 403, 410-11 (2d Cir. 1995). An arbiter must therefore interpret legal competency standards and apply them to the facts before her, a quintessentially judicial task. A medical professional cannot appropriately resolve such legal questions, and a defendant's competence is decidedly the province of the courts."
United States v. Brennan, 928 F.3d 210, 215-16 (2d Cir. 2019) (footnote omitted).
"`"[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)].'"
Hodges v. State, 926 So.2d 1060, 1068-69 (Ala. Crim. App. 2005)(quoting Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995)).
"Even if a serious mental illness causes a defendant to commit an offense, that defendant may still be competent to stand trial so long as he has sufficient understanding of the proceedings against him and an ability to aid his counsel in preparation for his defense." Tankersley v. State, 724 So.2d 557, 565 (Ala. Crim. App. 1998). A finding that a defendant is schizophrenic does not mean that the defendant is incompetent to stand trial. See State v. Frezzell, 958 S.W.2d 101 (Mo. Ct. App. 1998); People v. Williams, 533 N.Y.S.2d 963, 144 A.D.2d 402 (1988).
Jones argues, in part, that according to Pate v. Robinson, 383 U.S. 375 (1966), the circuit court erred in relying on its own observations of Jones's demeanor during the competency hearing. Jones cites the statement in Pate v. Robinson that "sane courtroom demeanor `offers no justification for ignoring the uncontradicted testimony of [the defendant's] history of pronounced irrational behavior.'" (Jones's brief, p. 29.)
The entire quote from Pate v. Robinson reads:
"The Supreme Court of Illinois held that the evidence here was not sufficient to require a hearing in light of the mental alertness and understanding displayed in Robinson's `colloquies' with the trial judge. [People v. Robinson,] 22 Ill.2d , at 168, 174 N.E.2d , at 823 [(1961)]. But this reasoning offers no justification for ignoring the uncontradicted testimony of Robinson's history of pronounced irrational behavior. While Robinson's demeanor at trial might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue. Cf. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), reversing, 96 U.S. App. D.C. 117, 120, 223 F.2d 582, 585 (1955). Likewise, the stipulation of Dr. [William H.] Haines' testimony was some evidence of Robinson's ability to assist in his defense. But, as the state prosecutor seemingly admitted, on the facts presented to the trial court it could not properly have been deemed dispositive on the issue of Robinson's competence."
Pate v. Robinson, 383 U.S. at 385-86.
The circuit court here, unlike the court in Pate, conducted an evidentiary hearing at which Dr. Kirkland and Dr. Goff testified regarding Jones's competency. Each evaluated Jones and offered contradictory testimony regarding Jones's competency. The circuit court considered the medical testimony, as well as its own observations, in concluding that Jones was competent to stand trial.
Further, Jones's Pate argument is inconsistent with long-established law.
"It is well settled that `[i]n making its assessment [regarding competency], the court may take account of a number of factors, including the defendant's comportment in the courtroom.' United States v. Hemsi, 901 F.2d 293, 295 (2d Cir. 1990); see also Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975); United States v. Oliver, 626 F.2d 254, 258-59 (2d Cir. 1980); United States v. Sullivan, 406 F.2d 180, 185 (2d Cir. 1969)."
United States v. Gambino, 828 F.Supp. 191, 197 (S.D. N.Y. 1993). See also State v. Edwards, 158 Conn.App. 119, 133-34, 118 A.3d 615, 625-26 (2015) ("As this court has stated, `[t]he trial judge is in a particularly advantageous position to observe a defendant's conduct during a trial and has a unique opportunity to assess a defendant's competency. A trial court's opinion, therefore, of the competency of a defendant is highly significant.' State v. Murray, 28 Conn.App. 548, 553-54, 611 A.2d 916 (1992), appeal dismissed, 225 Conn. 524, 624 A.2d 377 (1993).").
"In reaching such a determination, judges may consider their own `observations of the defendant's demeanor and behavior..., reports of psychiatric examinations of the defendant, statements to the judge about the defendant's conduct and mental condition, and the testimony of expert witnesses.' Commonwealth v. Hill, 375 Mass. 50, 54-55, 375 N.E.2d 1168 (1978). Observations made closest to the time of trial are the most appropriate in determining competency. See Commonwealth v. Companonio, 445 Mass. 39, 52, 833 N.E.2d 136 (2005) (`The time frame for determining a defendant's competency to stand trial is "the condition of the defendant at the time of trial"' [citation omitted]).
"While it may be useful for a judge to hear opinions from medical experts, the determination is ultimately a legal, not a medical, judgment. See Kansas v. Hendricks, 521 U.S. 346, 359, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (noting that legal definition of `competency' need not mirror its medical definition). `The law should not, and does not, give the opinions of experts on either side of... [an] issue the benefit of conclusiveness.' Commonwealth v. DiMinico, 408 Mass. 230, 235, 557 N.E.2d 744 (1990), quoting Commonwealth v. Lamb, 372 Mass. 17, 24, 360 N.E.2d 307 (1977). Cf. Commonwealth v. Kappler, 416 Mass. 574, 579, 625 N.E.2d 513 (1993) (fact finders are not required to accept `uncontroverted testimony of experts'); Commonwealth v. Shelley, 381 Mass. 340, 347, 409 N.E.2d 732 (1980) (fact finder is `not obliged to believe the testimony of any of the expert witnesses')."
Commonwealth v. Jones, 479 Mass. 1, 14, 90 N.E.3d 1238, 1249 (2018).
"It is well-settled that although the testimony of medical experts on the issue of a defendant's competency, albeit generally advisory, cannot arbitrarily be ignored, Mason v. United States, 402 F.2d 732, 737 (8th Cir. 1968), cert. denied 394 U.S. 950, 89 S.Ct. 1288, 22 L.Ed.2d 484 (1969); Mims v. United States, 375 F.2d 135, 143 (5th Cir. 1967), it is but one factor to be considered and rises no higher than the reasons on which it is based, Feguer v. United States, 302 F.2d 214, 236 (8th Cir.), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed. 2d 110 (1962); Hodges v. United States, 408 F.2d 543, 555 (8th Cir. 1969); United States v. Horowitz, 360 F.Supp. 772, 777 (E.D. Pa. 1973)."
United States v. Tesfa, 404 F.Supp. 1259, 1269-70 (E.D. Pa. 1975).
Here, three doctors stated in reports, and Dr. Kirkland testified at the competency hearing, that they believed that Jones was malingering and appeared intentionally to give false answers to questions concerning his competency. The circuit court was legally entitled to rely, in part, on its personal observations of Jones during the competency proceedings. Also, Dr. Kirkland testified that Jones refused to talk to him the first time they had scheduled an appointment because, he said, Jones refused to be transported to his office based on the advice of his counsel. This showed that Jones was able to confer with his counsel and to follow his counsel's advice. The reports showed that Jones's symptoms diminished with medication. Based on the extensive and thorough records and reports from Taylor Hardin and the testimony at the competency hearing, we cannot say that the circuit court abused its discretion in finding that Jones was competent to stand trial. Jones is due no relief on this claim.
As stated above, Jones further argued that the circuit court had reason to doubt Jones's competency during trial and should have made further inquires. He cites to portions of the record where he asserted that Jones was said to have experienced signs of psychosis; however, the pages Jones cites to in the record deal with testimony that was presented by his family members concerning Jones's behavior while he was living at home before his arrest. The only portion of the record where Jones's competency to stand trial was discussed was when defense counsel moved that the sheriff provide Jones with his medication because he had been talking to himself. (C. 215.) This motion was dated November 8, 2019, the date that Jones was convicted and two months before his sentencing hearing. The circuit court directed that Jones "shall have the benefit and access to any prescribed medications in conformity with the policies in place regarding to inmates and prescription medications at the Dallas County jail." (C. 217.) At the sentencing hearing, no mention was made of Jones's mental competency or that he had been unable to assist in his defense at sentencing. As required, the circuit court spoke to Jones directly to inquire if he had anything to say before he pronounced sentence. The circuit court had no legitimate basis for doubting Jones's competency during trial after its initial competency ruling had been made. This claim is not supported by the record, and Jones is due no relief.
For the reasons stated above, Jones is due no relief on his claims concerning his competency to stand trial.
Jones next contends that it was a violation of state and federal law for the circuit court to substitute a new indictment during the trial proceedings. In brief, Jones argues: "The trial court's substitution of a new indictment in the middle of Mr. Jones's trial violated his rights to proper notice of the charges against him, a fair trial, and due process under the Fifth and Fourteenth Amendments to the United States's Constitution and Alabama law." (Jones's brief, pp. 72-73.)
"`An indictment must apprise the accused with reasonable certainty of the nature of the accusation against him so that he may prepare his defense and plead the judgment of conviction as a bar to any subsequent prosecution for the same offense.' Copeland v. State, 455 So.2d 951, 956 (Ala. Cr. App.1984), cert. denied, 455 So.2d 956 (Ala. 1984); Thompson v. State, 454 So.2d 1053 (Ala. Cr. App. 1984); Wilder v. State, 401 So.2d 151, 160 (Ala. Cr. App.), cert. denied, 401 So.2d 167 (Ala.1981), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595; United States v. Simmons, 6 Otto 360, 96 U.S. 360, 24 L.Ed. 819 (1877). An accused is constitutionally guaranteed sufficient notice of the charges against him."
Griffin v. State, 500 So.2d 83, 85-86 (Ala. Crim. App. 1986).
The record shows that Jones was indicted for capital murder on July 2, 2014. That indictment read:
"The Grand Jury of Dallas County charge that before the finding of this indictment, John Jones, and/or an accomplice, did intentionally cause the death of Alexis Hunter by shooting her with a handgun and John Jones, and/or an accomplice, was in the course of committing a theft of a cell phone, property of Alexis Hunter, by the use of force against the person of Alexis Hunter with the intent to overcome her physical resistance or physical power of resistance and, at the time, cause serious physical injury to Alexis Hunter, in violation of § 13A-5-40(a)(2) of the Code of Alabama, against the peace and dignity of the State of Alabama."
Jones was indicted a second time on May 25, 2018.9 This indictment charged:
"That before the finding of this indictment, John Jones, whose name otherwise unknown to this Grand Jury, did intentionally cause the death of another person, to wit: Alexis Hunter, during the course of a robbery in the first degree or attempt thereof by the use of force against the person of Alexis Hunter with the intent to overcome her physical resistance or physical power of resistance while armed with a deadly weapon, to wit: A firearm, with intent to compel acquiescence to the taking of or escaping with the property, to wit: Alexis Hunter's cell phone, in violation of § 13A-5-40(a)(2) of the Code of Alabama 1975, against the peace and dignity of the State of Alabama. This offense occurred in Selma, Dallas County, Alabama."
The 2018 indictment was read to the jury during jury selection. Counsel did not object to the new indictment at that time and did not challenge the new indictment until after the first witness had testified. At that point, Jones objected and argued that he had not been arraigned on the 2018 indictment. (R. 258.) The State moved to dismiss the 2014 indictment. Jones objected. (R. 260.) The circuit court stated:
"So the similarity with the indictment in June 2014 with a gun and the death of Alexis Hunter is the same as the indictment that's charged in 2018. You both have a gun and the death of a victim, alleged crime of Alexis Hunter and they add to the 2014 — they had in the 2014 indictment robbery first and theft of cell phone, taken out the robbery first. All the charges are essentially the same. They involve the death of Alexis Hunter, they involve a gun, and they involve a cell phone. Everything has been apprised of....
"But the nature of the substance of the charges, the Court finds between the June 2014 indictment and the 2018 indictment are substantially the same."
(R. 262-63.) In discussing the two indictments, the prosecutor argued:
"This defendant is charged with capital murder. He has been arraigned on that charge. The language of the indictment was changed in 2018. The code section is still the same. The defendant has been put on notice as to what he's charged with. At this point in the trial, It hink it is just necessary or it has not prejudiced the defendant in any way by what has already taken forth. I think the Court can arraign him at this juncture. There is no fatal variance to the 2018 indictment and we would just ask the Court, at this juncture, to arraign the defendant and allow the State to proceed forward."
(R. 264-65.)) The Court granted the State's motion to dismiss the 2014 indictment and arraigned Jones on the 2018 indictment. (R. 261.)10
A review of the 2014 arraignment shows that it was clear that Jones was charged with a capital offense. The Court named the charge as a capital-murder charge and discussed that because of Jones's age he could not face the death penalty but could be sentenced to life in prison or life imprisonment without the possibility of parole. (R. 18.)
"`Due process of law... does not require the State to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution. Rogers v. [Peck], 199 U.S. 425, 435 [26 S.Ct. 87, 89, 50 L.Ed. 256] and previous cases in this court there cited.'
"[Garland v. Washington,] 232 U.S.  at 645, 34 S.Ct.  at 457, 58 L.Ed.  at 775 [(1914)]. Alabama authority is in accord with the view that the common law formalities attendant on arraignment and plea are no longer required. See Headley v. State, 51 Ala. App. 148, 283 So.2d 458 (1973); Boyd v. State, 41 Ala. App. 507, 138 So.2d 60 (1962).
Watts v. State, 460 So.2d 204, 206 (1983).
Jones was placed on notice that he was charged with the capital offense of murdering Alexis Hunter during the course of a robbery in the first degree — or attempting to take her cellular telephone. The second indictment did not charge a new offense, and Jones was arraigned on the second indictment. We cannot say that Jones suffered any prejudice. See Ray v. State, 809 So.2d 875 (Ala. Crim. App. 2001). Accordingly, Jones is due no relief on this claim.
Jones next argues that the circuit court erred in limiting his right to cross-examine his witnesses during the presentation of his defense. Specifically, he asserts that, because the circuit court granted the State's motion in limine, his counsel was forbidden from discussing the conditions within the Alabama Department of Corrections ("DOC") or the attitudes of DOC and the Alabama Department of Mental Health ("ADMH") toward prisoners.
The record shows that the following occurred during the trial:
"[Prosecutor]: Judge, we would like to make an oral motion in limine. In voir dire, [defense counsel] referenced the condition of the mental health facilities and stuff within the DOC. We feel that that should not be discussed or even mentioned because it could sway a jury in determining whether they should find someone guilty or not guilty based on the conditions they may be headed towards. It's just like mentioning anything about jail time or anything like that. It's improper and we feel that it is not pertinent to the case, not relevant to the case, and the conditions of the mental health has no bearing on this case whatsoever, and it should not be talked about or mentioned.
"So we are asking the Court to grant our motion in limine not to discuss the conditions of the mental health within DOC."
(R. 405.) Defense counsel responded that there was a
"competition, slash, war between DOC and mental health department. Where mental health department doesn't want people who have been in trouble, they think they will be in the prison system getting mental health treatment; and the prison system by inference thinks that mentally ill people ought not be in the prison system and they ought to be in the mental health department."
(R. 405-06.) The circuit court granted the motion and said that it would not put ADMH or DOC on trial. (R. 412.)
Rule 401, Ala. E. Evid., defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
"`The admission or exclusion of evidence is a matter within the sound discretion of the trial court.' Taylor v. State, 808 So.2d 1148, 1191 (Ala. Crim. App. 2000), aff'd, 808 So.2d 1215 (Ala. 2001). `The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion.' Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000). In addition,'[t]rial courts are vested with considerable discretion in determining whether evidence is relevant, and such a determination will not be reversed absent plain error or an abuse of discretion.' Hayes v. State, 717 So.2d 30, 36 (Ala. Crim. App. 1997)."
Gavin v. State, 891 So.2d 907, 963 (Ala. Crim. App. 2003).
The circuit court did not forbid defense counsel from mentioning DOC or ADMH; however, the court did grant the State's motion in limine to the extent that defense counsel could not mention the conditions at DOC or ADMH. The conditions were not relevant to any issue of Jones's guilt. Therefore, we cannot say that the circuit court abused its discretion in its granting the State's motion in limine. Accordingly, Jones is due no relief on this claim.
Jones next argues that the prosecutor's comments on Jones's courtroom demeanor violated state and federal law. While acknowledging that the Alabama Supreme Court has held that comments on courtroom demeanor are permissible, Jones asserts in his appellate brief that this Court should reconsider that precedent. (Jones's brief at p. 57.) Jones acknowledges and cites the holdings in Brothers v. State, 236 Ala. 448, 183 So. 433, 436 (Ala. 1938), and Wherry v. State, 402 So.2d 1130, 1133 (Ala. Crim. App. 1981).
The record shows that, during closing argument, the prosecutor stated:
"[I] don't know if y'all have noticed this but It hink John Jones has tried to deceive you in this courtroom this week by his demeanor. Now, I watched him. Just watching his reactions to the witnesses that were on the stand as [defense counsel] was conducting direct examination. When Malisha, Shemeria, and Pharlando testified, he looked at them. He was paying attention to what they were saying."
(C. 714.) Defense counsel objected, and the prosecutor stated that it would move on. The circuit court made no ruling.
A few moments later, the prosecutor stated:
"Here's one thing and I don't know if y'all caught this but his demeanor changed after [defense counsel] got up and told y'all during his opening statement — you remember he didn't do his opening statement initially like we did. He reserved it and after we rested, he did his opening statement. After he got up and did his opening statement and told y'all that his client was claiming insanity, his client's demeanor changed. Instead of looking at the witnesses, he started doing just what he's doing now."
(R. 714-15.) Defense counsel objected and stated that counsel was testifying. The Court overruled the objection. (R. 715.)
In Brothers v. State, the Alabama Supreme Court held: "Whether the defendant was faking insanity was a primary inquiry in the case. If, instead of taking the stand, he was seeking to make evidence for himself by his demeanor before the jury, this was the legitimate subject of comment." 236 Ala. at 452, 183 So. at 436.11 In Wherry v. State, this Court stated: "The conduct of the accused or the accused's demeanor during the trial is a proper subject of comment." 402 So. 2d at 1133.
More recently, this Court in Thompson v. State, 153 So.3d 84 (Ala. Crim. App. 2012), stated:
"In Hunt v. Commonwealth, 304 S.W.3d 15 (Ky. 2009), the prosecutor commented that Hunt had shown a `total and complete lack of remorse or regret over anything that occurred.' In finding no reversible error, the Kentucky Supreme Court stated:
"`Rather than a comment on Hunt's silence, we construe the statements as relating to his courtroom demeanor. A prosecutor is entitled to comment on the courtroom demeanor of a defendant. Woodall v. Commonwealth, 63 S.W.3d 104, 125 (Ky. 2001). We find no error in the comments cited.'
"304 S.W.3d at 38. `The conduct of the accused or the accused's demeanor during the trial is a proper subject of comment.' Wherry v. State, 402 So.2d 1130, 1133 (Ala. Crim. App. 1981). This Court has held that `remorse is... a proper subject of closing arguments.' Ex parte Loggins, 771 So.2d 1093, 1101 (Ala. 2000).
"The prosecutor's comments were within the wide scope of proper prosecutorial argument and did not constitute error."
Thompson, 153 So. 3d at 175. See also United States v. Mendoza, 522 F.3d 482, 490-91 (5th Cir. 2008) ("A prosecutor's comment on a defendant's `expressionless courtroom demeanor' has been found not to be equivalent to a comment on his failure to take the stand."); State v. Billings, 348 N.C. 169, 187, 500 S.E.2d 423, 434 (1998) ("The State is allowed to comment upon a defendant's demeanor in the courtroom during closing arguments, as the prosecutor did here. The jurors are allowed to consider both the evidence and what they observe in the courtroom."); Christenson v. State, 261 Ga. 80, 89, 402 S.E.2d 41, 50 (1991) ("Comments based on courtroom observation of a defendant's demeanor do not infringe on the defendant's Fifth Amendment rights."); Commonwealth v. Pullum, 22 Mass.App.Ct. 485, 488, 494 N.E.2d 1355, 1358 (1986) ("[I]it is permissible to comment on courtroom demeanor, particularly if that demeanor is in some aspect noteworthy, as the squirms, smirks and laughs of the defendant... or the making of faces at the jury. ..."). But see State v. John B., 102 Conn.App. 453, 465, 925 A.2d 1235, 1243 (2007) ("For the prosecutor to have relied in argument on the defendant's courtroom demeanor was not proper because it constituted argument on matters extrinsic to the evidence."); Mehdipour v. State, 956 P.2d 911, 916 n. 11 (Okl. Cr. 1998) ("A prosecutor may comment on a defendant's non-testimonial courtroom demeanor only when the defendant testifies.").
Based on long-established Alabama law there was no error in the prosecutor's statements concerning Jones's demeanor during the course of the trial. Therefore, Jones is due no relief on this claim.
Jones next argues that the circuit court's order sentencing him to life imprisonment without the possibility of parole is erroneous and violates the United States Supreme Court's holding in Miller v. Alabama, 567 U.S. 460 (2012). He makes three arguments in support of this contention.
The record shows that Jones did not challenge the circuit court's sentencing order. At the sentencing hearing, Jones did object to the sentence that was imposed but did not object to the formal sentencing order that was later issued. (R. 770.) Because Jones was not sentenced to death, this Court does not apply the plain-error standard of review to the issues raised on appeal. See Rule 45A, Ala. R. App. P. Cf. Whitehead v. State, 593 So.2d 126, 130 (Ala. Crim. App. 1991) ("[Rule 32, Ala. R. Crim. P.,] requires the trial court to `make specific findings of fact relating to each material issue of fact presented' at the evidentiary hearing. The appellant has waived this issue by not raising it in circuit court.").
For the following reasons, we find that there is no error that warrants a remand of this case.
Jones first argues that the circuit court failed to make findings of fact concerning the 14 factors set out by the Alabama Supreme Court in Ex parte Henderson, 144 So.3d 1262 (Ala. 2013), when sentencing him to life imprisonment without parole instead of life with the possibility of parole.
In Miller, the United States Supreme Court held that a "mandatory life without parole [sentence] for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on `cruel and unusual punishments.'" However, "Miller did not foreclose a sentencer's ability to impose life without parole on a juvenile" who commits murder.12 Montgomery v. Louisiana, 577 U.S. 190, 195 (2016). See also Miller, 567 U.S. at 483 (2012) ("Our decision does not categorically bar a penalty for a class of offenders or type of crime.") As the United States Supreme Court recently recognized: "Under Miller v. Alabama, 567 U.S. 460 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment." Jones v. Mississippi, 539 U.S. ___, ___, 141 S.Ct. 1307, 1311 (2021).13
The United States Supreme Court in Miller "determined that sentencing a child to life without parole is excessive for all but `"the rare juvenile offender whose crime reflects irreparable corruption,"' ... [and] it rendered life without parole an unconstitutional penalty [only] for... juvenile offenders whose crimes reflect the transient immaturity of youth." Montgomery, 577 U.S. at 208 (citations omitted).
"Miller `mandates only that a sentencer follow a certain process — considering an offender's youth and attendant characteristics' — before `meting out' a sentence of life imprisonment without parole. Miller, 567 U.S. at 483, 132 S.Ct. at 2471. `[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.' Miller, 567 U.S. at 489, 132 S.Ct. at 2475."
Click v. State, 215 So.3d 1189, 1192 (Ala. Crim. App. 2016). See also Jones, 539 U.S. at ___, 141 S.Ct. at 1316 ("[T]he Miller Court mandated `only that a sentencer follow a certain process — considering an offender's youth and attendant characteristics — before imposing' a life-without-parole sentence." (Citation omitted)).
In the wake of Miller, the Alabama Legislature amended § 13A-5-43(e), Ala. Code 1975, to provide:
"If the defendant is found guilty of a capital offense or offenses with which he or she is charged and the defendant establishes to the court by a preponderance of the evidence that he or she was under the age of 18 years at the time of the capital offense or offenses, the sentence shall be either life without the possibility of parole or, in the alternative, life, and the sentence shall be determined by the procedures set forth in the Alabama Rules of Criminal Procedure for judicially imposing sentences within the range set by statute without a jury, rather than as provided in Sections 13A-5-45 to 13A-5-53, inclusive. The judge shall consider all relevant mitigating circumstances.
"If the defendant is sentenced to life on a capital offense, the defendant must serve a minimum of 30 years, day for day, prior to first consideration of parole."
In addition, in Henderson the Alabama Supreme Court set out the following 14 factors that, to comply with Miller, must be considered in determining whether to sentence a juvenile offender convicted of a capital offense to life imprisonment without the possibility of parole:
"(1) the juvenile's chronological age at the time of the offense and the hallmark features of youth, such as immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile's diminished culpability; (3) the circumstances of the offense; (4) the extent of the juvenile's participation in the crime; (5) the juvenile's family, home, and neighborhood environment; (6) the juvenile's emotional maturity and development; (7) whether familial and/or peer pressure affected the juvenile; (8) the juvenile's past exposure to violence; (9) the juvenile's drug and alcohol history; (10) the juvenile's ability to deal with the police; (11) the juvenile's capacity to assist his or her attorney; (12) the juvenile's mental-health history; (13) the juvenile's potential for rehabilitation; and (14) any other relevant factor related to the juvenile's youth."
Henderson, 144 So. 3d at 1284.
While the Henderson Court did hold that a sentencing court must consider the above 14 factors, the court did not hold that written findings of fact on those factors were mandatory to comply with its holding. See Henderson, 144 So. 3d at 1264. Indeed, this Court has recognized that there will be instances where a remand for findings of fact is not required. As this Court noted in Betton v. State, 292 So.3d 398 (Ala. Crim. App. 2018):
"[W]ritten findings of fact may not be required in every instance in which a juvenile is sentenced to life in prison without the possibility of parole. This Court can foresee instances in which the record contains sufficient indications of the factors and facts considered by the trial court to enable proportionality review."
292 So. 3d at 406 n. 2. This Court remanded the cause in Betton for findings because the record was not adequate for this Court to review Betton's sentence under the Henderson guidelines.
Also, when the Alabama Legislature amended the capital-murder statutes to address Miller, it did not direct, as it required for a death-penalty case, that a circuit court enter a written sentencing order stating its reasons for sentencing a juvenile convicted of capital murder to the harsher penalty of life imprisonment without parole.
Furthermore, the United States Supreme Court in Montgomery acknowledged that Miller did not impose any "formal factfinding requirement" on a sentencing judge. 577 U.S. at 211. See also Garcia v. State, 903 N.W.2d 503, 512 (N.D. 2017) ("Miller did not impose a formal factfinding requirement and the sentencer is not required to use the words `incorrigible' or `irreparable corruption.' Montgomery, at 735. Miller `mandates only that a sentencer follow a certain process — considering an offender's youth and attendant characteristics — before imposing a particular penalty.'"); Jones v. Commonwealth, 293 Va. 29, 795 S.E.2d 705, 709 n. 3 (2017) ("Montgomery acknowledged that `Miller did not require trial courts to make a finding of fact regarding a child's incorrigibility' and `did not impose a formal factfinding requirement' on this mitigation issue."); Jones v. State, 285 So.3d 626, 632 (Miss. 2017)("[T]he sentencing judge is not required to make any specific `finding of fact.'").
A review of the record shows that the circuit court and the parties were aware of the Alabama Supreme Court's decision in Henderson, as that particular case was discussed in depth at sentencing. Arguing in favor of the harsher penalty, the State asserted that the Henderson factors warranted imposition of a sentence of life in prison without the possibility of parole. The circuit court also stated at the sentencing hearing that it "has looked at and weighed the relative factors relating to youth and considered all the relevant factors set forth by law." (R. 773.)14 Jones was also at Taylor Hardin for almost one year, and the record contains numerous periodic reports compiled by the doctors who examined and treated Jones while he was at that facility. Many of those reports reference Jones's conduct while at Taylor Hardin.
Based on the unique record in this case it is not necessary to remand this case to the lower court for that court to make formal written findings. Therefore, Jones is due no relief on this claim.
Second, Jones argues that the circuit court erred in failing to consider one of the Henderson factors, namely, that Jones was capable of rehabilitation.15 Without this finding, Jones argues, this case should be remanded for the court to sentence Jones to life imprisonment with the possibility of parole.
The United States Supreme Court in Miller and the Alabama Supreme Court in Henderson, recognized that rehabilitation is "one factor" to examine when assessing whether a sentence of life imprisonment without parole is appropriate for a juvenile. See Shoemake v. State, [Ms. 2017-CA-01364-COA, November 12, 2019] ___ So. 3d ___, ___ (Miss. 2019) ("There is no Mississippi precedent for the proposition that the possibility of rehabilitation overrides the other Miller factors — or even that it is the preeminent factor. Rather, it is one of the five factors a trial court must consider in determining whether to sentence a juvenile offender to [life without the possibility of parole].").16
Here, the record reflects that a report written by Dr. Sarah Ryan states:
"Mr. Jones's records also document a longstanding history of defiant, disruptive, threatening, and assaultive behaviors including verbal and physical altercations with others and property destruction. During his hospitalization he continued to engage in aggressive behavior that appeared to be in reaction to situational triggers (e.g., limit setting, verbal altercations). His behavior has resulted in multiple suspensions and legal charges and is consistent with a history of Conduct Disorder. As a result of developmental factors and the presence of co-morbid diagnoses, it is unclear if his behavior is a continuing manifestation of Conduct Disorder or if his behavior represents an emerging (and more serious) Antisocial Personality Disorder."
(C. 463.) In a later report, Dr. Ryan wrote:
"Mr. Jones denied a family history of legal problems. According to the Dallas County Probation Officer's Report, Mr. Jones was charged with Carrying Concealed Weapon and Unlawful Possession of Marijuana Second Degree in December 2012 and the case was disposed of by consent decree in January 2013. Behavioral Health of Selma records indicated Mr. Jones was placed on probation for the possession charge. Mr. Jones stated he violated probation after he accrued a charge of Burglary Third Degree (records confirmed he was charged with Burglary Third Degree in March 2013). He was subsequently placed at Camp Perry Varner. He was also charged with Disorderly Conduct and received probation in September 2013."
Dr. Robert Bare's report contains the following statement:
"Mr. Jones was unable to provide any coherent report of his functioning around the time of the alleged offense, as he denied being involved in the alleged offense. He suggested that another individual who committed the offense had falsely accused him, stating `some dude put my name in it.'"
Jones's defense was that he did not commit the murder but was at home at the time of the murder asleep because his mother had given him medication. As quoted above, Dr. Bare's report stated that Jones told the doctor that someone else committed the murder and blamed him for that murder. Nothing in the record suggests that Jones took responsibility for his actions, even though three State witnesses testified that they were present and saw Jones shoot Hunter.18 Pharlando Pickett, who was present at the time of the shooting, testified that Jones was his uncle, that Jones has a temper, that he was scared of Jones, that you did not get on "Jones's bad side," and that "it was [Jones's] way or no way." (R. 345.) Jones also had a juvenile record and had been charged with carrying a concealed weapon and unlawful possession of marijuana. These charges were filed when Jones was 15 years old and were later dismissed. When Jones was 16 years old he was adjudicated guilty of burglary and was placed at Camp Perry Varner. At the age of 16, Jones was also adjudicated guilty of disorderly conduct and placed on probation. Several Taylor Hardin reports showed that Jones was uncooperative and that he had a history of "defiant, disruptive, threatening, and assaultive behavior." (C. 463.) Jones was identified as the shooter by three witnesses, and Jones was the sole instigator of the circumstances that ended in Hunter's death. The circuit court was particularly disturbed by the circumstances of the murder, and at the sentencing hearing he noted that the murder was especially horrific because Hunter was killed after she refused to give Jones her cellular telephone. Jones's mental health was detailed in the reports from Taylor Hardin and the circuit court's order finding that he was competent to stand trial as discussed in Part II of this opinion. The record supports a finding that Jones was not amenable to rehabilitation.
The Wyoming Supreme Court has found that circumstances similar to those discussed above were sufficient to establish that the juvenile was not subject to rehabilitation:
"[T]here is a great deal of evidence regarding these factors that does not weigh in favor of predicting rehabilitation. Rebecca Campbell, a social worker/counselor for Laramie County School District No. 1, testified that while she worked with him, `he was very angry most of the time;' `he wasn't really open to counseling;' `he really had trouble with authority;' and he showed `continued disrespect.' Mike Webster, the school resource officer at Central High School, testified regarding his several interactions with Mr. Sam, usually arising from violence on Mr. Sam's part. Kristen Siegal, assistant principal at Central High School, testified regarding Mr. Sam's fighting, name calling, and not wanting to follow the rules, and her recommendation that he be expelled. Mr. Sam's aggressive behavior continued after he was arrested. While in detention, he verbally threatened deputies, threatened to `stab somebody,' and threatened and attempted to attack other juveniles. The district court considered this `long history of aggression, defiance and explosive outbursts,' along with the fact that Mr. Sam `has generally refused to take his medication,' and did not abuse its discretion when it found `no reasonable likelihood of rehabilitation for Mr. Sam within the juvenile court system, nor prospects for adequate protection of the public.'"
Sam v. State, 401 P.3d 834, 835-36 (Wy. 2017).
Jones further argues that, even considering the above evidence, there was also evidence indicating that he was capable of being rehabilitated.19 Jones's argument goes to the weight of the evidence to support this mitigating circumstance. However, "`mere disagreement with the circuit court's weighing of the evidence does not entitle [a defendant] to relief.'" Wynn v. State, [Ms. CR-19-0589, May 28, 2021] ___ So. 3d ___, ___ (Ala. Crim. App. 2021) (quoting Boyd v. State, 306 So.3d 907, 919 (Ala. Crim. App. 2019)).
"It is well settled that,
"`"[w]here a trial judge imposes a sentence within the statutory range, this Court will not disturb that sentence on appeal absent a showing of an abuse of the trial judge's discretion." Alderman v. State, 615 So.2d 640, 649 (Ala. Crim. App. 1992). "The exception to this general rule is that `the appellate courts may review a sentence, which, although within the prescribed limitations, is so disproportionate to the offense charged that it constitutes a violation of a defendant's Eighth Amendment rights.'" Brown [v. State, 611 So.2d 1194,] 1197, n. 6 [(Ala. Crim. App. 1992)], quoting Ex parte Maddox, 502 786, 789 (Ala. 1986).'
"Adams v. State, 815 So.2d 583, 585 (Ala. Crim. App. 2001). Because life imprisonment without the possibility of parole remains a sentencing option for juvenile offenders, even in light of the Supreme Court's decisions in Miller and Montgomery, the standard of review to be applied is an abuse-of-discretion standard. In the present case, particularly in light of the discussion and holdings in Part I.A. and Part I.B. of this opinion, we see no reason to create or apply a more stringent standard for reviewing a sentencing court's ultimate determination following a hearing conducted pursuant to Miller and Montgomery. Cf. [People v.] Skinner, 502 Mich.  at 137, 917 N.W.2d  at 317 [(2018)] (`Miller's and Montgomery's emphasis on the rarity of juveniles deserving of life-without-parole sentences does not counsel against applying an abuse-of-discretion standard. The trial court remains in the best position to determine whether each particular defendant is deserving of life without parole. All crimes have a maximum possible penalty, and when trial judges have discretion to impose a sentence, the imposition of the maximum possible penalty for any crime is presumably "uncommon" or "rare." Yet this Court has never imposed a heightened standard of appellate review, and it should not do so in this instance.')."
Wilkerson v. State, 284 So.3d 937, 956 (Ala. Crim. App. 2018).
After examining the record, we cannot say that the circuit court abused its discretion in finding that the Henderson factors warranted a sentence of life in prison without the possibility of parole. Therefore, Jones is due no relief on this claim.
Jones also argues that the circuit court improperly relied on the capital-sentencing statute when the court made the following reference at the sentencing hearing:
"The Court has looked at and weighed the relative factors relating to youth, considered all the relevant factors set forth by law, the mitigating and aggravating circumstances, psychological issues, the issues again of youth."
(R. 773-74) (emphasis added). Specifically, Jones argues that the above-highlighted language shows that the judge incorrectly relied on the adult capital-murder sentencing statute when fixing Jones's sentence. We do not agree.
The Henderson factors have been described as mitigating circumstances. Section 13A-5-43(e), Ala. Code 1975, as amended in 2016 to address Miller, provides:
"If the defendant is found guilty of a capital offense or offenses with which he or she is charged and the defendant establishes to the court by a preponderance of the evidence that he or she was under the age of 18 years at the time of the capital offense or offenses, the sentence shall be either life without the possibility of parole or, in the alternative, life, and the sentence shall be determined by the procedures set forth in the Alabama Rules of Criminal Procedure for judicially imposing sentences within the range set by statute without a jury, rather than as provided in Sections 13A-5-45 to 13A-5-53, inclusive. The judge shall consider all relevant mitigating circumstances."
In Wilkerson, this Court relied on and quoted the Michigan Supreme Court's decision in People v. Skinner, 502 Mich. 89, 917 N.W.2d 292 (2018), stating:
"As the Michigan Supreme Court explained, whether a juvenile who has been convicted of capital murder should be sentenced to life imprisonment without the possibility of parole is ultimately a moral judgment, not a factual finding. Skinner, 502 Mich. at 117 n.11, 917 N.W.2d at 305 n.11 (`"[T]erms [such as] consider, justify, [and] outweigh... reflect a process of assigning weights to competing interests, and then determining, based upon some criterion, which of those interests predominates. The result is one of judgment, of shades of gray; like saying that Beethoven was a better composer than Brahms. Here, the judgment is moral—for the root of `justify' is `just.' ..." [United States v. Gabrion, 719 F.3d 511, 532-33 (6th Cir. 2013).] For the same reasons, a trial court's decision to impose life without parole after considering the mitigating and aggravating circumstances is not a factual finding, but a moral judgment.')."
Wilkerson, 284 So. 3d at 955 (emphasis added).
There was no error in the circuit court's reference to aggravating and mitigating circumstances. It is clear that the circuit court knew the law had been amended subsequent to Miller and applied the new law in determining Jones's sentence. Accordingly, Jones is due no relief on this claim.
Jones next argues that the evidence established that he is not so "irretrievably depraved" that rehabilitation is impossible. In essence, Jones argues that the circuit court was required to make a finding that he was "irretrievably depraved" before it could impose a sentence of life imprisonment without parole.
This issue was addressed by this Court in Wilkerson, supra, where we stated:
"As the Michigan Supreme Court explained, whether a juvenile who has been convicted of capital murder should be sentenced to life imprisonment without the possibility of parole is ultimately a moral judgment, not a factual finding. [People v.] Skinner, 502 Mich.  at 117 n.11, 917 N.W.2d  at 305 n.11 [(2018)] (`"[T]erms [such as] consider, justify, [and] outweigh... reflect a process of assigning weights to competing interests, and then determining, based upon some criterion, which of those interests predominates. The result is one of judgment, of shades of gray; like saying that Beethoven was a better composer than Brahms. Here, the judgment is moral—for the root of `justify' is `just.' ..." [United States v. Gabrion, 719 F.3d 511, 532-33 (6th Cir. 2013).] For the same reasons, a trial court's decision to impose life without parole after considering the mitigating and aggravating circumstances is not a factual finding, but a moral judgment.').
"The Michigan Supreme Court's rationale is compelling, and we are persuaded by its holding that
"`neither Miller nor Montgomery imposes a presumption against life without parole for those juveniles who have been convicted of first-degree murder on either the trial court or the appellate court. Miller and Montgomery simply require that the trial court consider "an offender's youth and attendant characteristics" before imposing life without parole. Miller, 567 U.S. at 483, 132 S.Ct. 2455. Indeed, there is language in Montgomery that suggests that the juvenile offender bears the burden of showing that life without parole is not the appropriate sentence by introducing mitigating evidence. Montgomery, 577 U.S. at ____, 136 S.Ct. at 736 ("[P]risoners... must be given the opportunity to show their crime did not reflect irreparable corruption....").'
"Skinner, 502 Mich. at 131, 917 N.W.2d at 314.
"We likewise hold that Miller and Montgomery do not require a presumption against life-imprisonment-without-the-possibility-of-parole sentences for juveniles convicted of capital murder and do not require the State to bear the burden of proving that a juvenile defendant is `the rare irreparably depraved or corrupt offender warranting a life-without-parole sentence' (Wilkerson's brief, p. 30) before that juvenile may be sentenced to life imprisonment without the possibility of parole."20
284 So. 3d at 955 (emphasis added). The circuit court was not required to find that Jones was "irretrievably depraved" before it sentenced Jones to life imprisonment without parole. See Jones, 539 U.S. at ___, 141 S.Ct. at 1318-19.
Jones also argues in this section of his brief that his sentence of life imprisonment without parole was disproportionate, given the facts in this case. Relying on Miller, Jones argues that "additional mitigation evidence `can render a life without parole sentence disproportionate.'" (Jones's brief at p. 48.) The relevant quote from Miller reads:
"Graham[ v. Florida, 560 U.S. 48 (2010),] insists that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole. In the circumstances there, juvenile status precluded a life-without-parole sentence, even though an adult could receive it for a similar crime. And in other contexts as well, the characteristics of youth, and the way they weaken rationales for punishment, can render a life-without-parole sentence disproportionate."
567 U.S. at 473 (emphasis added). Specifically, Jones argues that mitigating factors such as his inability to assist in his defense and his family's history of alcohol and drug abuse should have been considered as mitigating evidence and should have been found to warrant the lesser sentence.
Again, Jones's argument centers on the circuit court's findings of what constituted mitigating evidence and the weight the court gave that evidence. Whether the court found the cited evidence to be mitigating was within its discretion. "The circuit court was not, however, required to find that evidence, or any other evidence, mitigating, and nothing in the record before us indicates that the circuit court abused its discretion in its conclusions as to this factor." Wilkerson, 284 So. 3d at 959. "That is not to say, of course, that a trial court must afford a juvenile's age a certain weight, because what weight to afford mitigating evidence is generally within the trial court's discretion." Bracewell v. State, [Ms. CR-17-0014, December 16, 2020] ___ So. 3d ___, ___ (Ala. Crim. App. 2019) (opinion on return to remand). For these reasons, Jones is due no relief on this claim.
Jones next argues that the State's reference to a statement made in the trial of Jones's codefendant and the circuit court's reference to that statement to impose a sentence of life imprisonment without parole violated his constitutional rights.
The record shows that, after the circuit court denied Jones's motion for a new trial, the prosecutor stated:
"I would like to state one thing: [my fellow prosecutor] and I have the task of trying murders and capital murders all over this circuit and we have been doing it for years. In our experience, this was one of the most egregious, most violent, most evil murders we have ever had to deal with.
"If you remember, there was a codefendant in this case. And in that evidence, John Jones stated to him that he was strapped. That he had a gun.
"[Defense counsel]: I object to references to evidence not before the Court in any fashion.
"[Prosecutor]: Hearsay is allowed in these.
"THE COURT: Overruled. I presided over the defendant's trial so I'm familiar with the testimony in it. So with that, I have judicial knowledge of what he's saying. I heard it.
"[Prosecutor]: But his was a planned thing that John Jones went with the intentions of taking Alexis's cell phone. And in the process, if she didn't turn it over, he had a plan of killing her.
"And Your Honor, we are just asking today that John Jones never be given an opportunity to hurt another person and we would ask that he be sentenced to life without the possibility of parole."
Evidence indicating that Jones needed money when he shot Alexis had been admitted at Jones's trial through the testimony of Pharlando Pickett, Jones's nephew. Pickett testified that throughout the day of the murder Jones said that he needed money. (R. 339-40.) Thus, the above evidence was cumulative to evidence that had been presented at Jones's trial. "The erroneous admission of evidence that is merely cumulative is harmless error." Dawson v. State, 675 So.2d 897, 900 (Ala. Crim. App. 1995).
Moreover, at a sentencing hearing, hearsay evidence is admissible.
"The trial court may properly consider hearsay at the penalty phase of the trial if the defendant has an opportunity to rebut the evidence.
"`"Courts are permitted to consider hearsay testimony at sentencing.... While hearsay evidence may be considered in sentencing, due process requires both that the defendant be given an opportunity to refute it and that it bear minimal indicia of reliability...."'"
Ex parte McGahee, 632 So.2d 981, 982-83 (Ala. 1993) (quoting Kuenzel v. State, 577 So.2d 474, 526 (Ala. Crim. App. 1990), quoting in turn United States v. Giltner, 889 F.2d 1004, 1007 (11th Cir. 1989)).
Furthermore, the circuit court made no findings when sentencing Jones to life imprisonment without parole; thus, nothing supports Jones's argument that the court relied on hearsay statements to impose that sentence. For the foregoing reasons, Jones is due no relief on this claim.
Jones next argues that a sentence of life imprisonment without parole for a juvenile who is intellectually disabled is a violation of the Eighth Amendment to the United States Constitution and the Alabama Constitution and is cruel and unusual punishment. He relies on Atkins v. Virginia, 536 U.S. 304 (2002), and Graham v. Florida, 560 U.S. 48 (2010), to support his arguments.
As the State argues in brief, even constitutional issues must be preserved for appellate review. Jones did not argue in the circuit court that his sentence violated either constitutional provision he now argues on appeal was violated. See Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala. 2003).
Moreover, Jones claim is without merit. The United States Supreme Court in Atkins, held that it was a violation of the Eighth Amendment and cruel and unusual punishment to sentence an intellectually disabled individual to death. In Graham, the Court held that a sentence of death is unconstitutional for a juvenile who does not commit murder. The Court in Miller held that a mandatory sentence of life imprisonment without parole for a juvenile homicide offender prevents the sentencing authority from "assessing whether the law's harshest terms of imprisonment proportionately punishes a juvenile offender." 567 U.S. at 474. Even the broadest reading of the United States Supreme Court cases does not support Jones's interpretation. No United States Supreme Court or Alabama Supreme Court case has barred a sentence of life imprisonment without parole for a juvenile who has some level of mental deficiency. Here, the evidence of the severity of Jones's mental condition was conflicting. The jury was instructed on whether it should find Jones not guilty by reason of mental disease or defect. The jury found, beyond a reasonable doubt, that Jones was guilty of capital murder. Jones's sentence is not barred on this basis, and Jones is due no relief on this claim.
For the foregoing reasons, we affirm Jones's capital-murder conviction and his sentence of life imprisonment without the possibility of parole.
Windom, P.J., and Kellum, McCool, Cole, and Minor, JJ., concur.