Hicks v. State

• Decision Date: 12 July 2019
• Docket Number: CR-15-0747
• Parties: Dennis Morgan Hicks v. State of Alabama
• Court: Alabama Court of Criminal Appeals

Dennis Morgan Hicks v. State of Alabama

CR-15-0747

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2018-2019

July 12, 2019

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.

Appeal from Mobile Circuit Court

(CC-12-4687)

McCOOL, Judge.

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

Standard of Review

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

"'"Plain error is defined as error that has 'adversely affected the substantial right of the appellant.' The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed. 2d 1 (1985), the plain-error doctrine applies only if the error is 'particularly egregious' and if it 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed. 2d 1012 (1999)."'

"Ex parte Brown, 11 So. 3d 933, 935-36 (Ala. 2008)(quoting Hall v. State, 820 So. 2d 113, 121-22 (Ala. Crim. App. 1999) ). See also Ex parte Walker, 972 So. 2d 737, 742 (Ala. 2007); Ex parte Trawick, 698 So. 2d 162, 167 (Ala. 1997); Harris v. State, 2 So. 3d 880, 896 (Ala. Crim. App. 2007); and Hyde v. State, 778 So. 2d 199, 209 (Ala. Crim. App. 1998)('To rise to the level of plain error, the claimed error must not only seriously affect a defendant's "substantial rights," but it must also have an unfair prejudicial impact on the jury's deliberations.'). Although the failure to object in the trial court will not preclude this Court from reviewing an issue under Rule 45A, Ala. R. App. P., it will weigh against any claim of prejudice made on appeal. See Dotch v. State, 67 So. 3d 936, 965 (Ala. Crim. App. 2010)(citing Dill v. State, 600 So. 2d 343 (Ala. Crim. App. 1991)). Additionally, application of the plain-error rule

"'"'is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Whitehead v. State, [777 So. 2d 781] , at 794 [ (Ala. Crim. App. 1999], quoting Burton v. State, 651 So. 2d 641, 645 (Ala. Crim. App. 1993), aff'd, 651 So. 2d 659 (Ala. 1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed. 2d 862 (1995).'

"Centobie v. State, 861 So. 2d 1111, 1118 (Ala. Crim. App. 2001)."

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

Discussion

I.

Hicks first argues that he was without legal representation during his court-ordered, pretrial psychiatric examination, which, he says, was a critical stage of his trial. Hicks alleges that, although he had requested court-appointe...