Kennedy v. State

• Decision Date: 10 July 2015
• Docket Number: CR–12–2084.
• Parties: Carlos Edward KENNEDY. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

186 So.3d 507

Carlos Edward KENNEDY.

v.STATE of Alabama.

CR–12–2084.

Court of Criminal Appeals of Alabama.

July 10, 2015.

Kathryn Elizabeth Miller, Charlotte Morrison, and Randall S. Susskind, Montgomery, for appellant.

Luther Strange, atty. gen., and Kristi Deason Hagood, deputy atty. gen., and James C. Crenshaw, asst. atty. gen., for appellee.

JOINER, Judge.

Carlos Edward Kennedy was convicted of one count of capital murder for killing Zoa White during the course of a first-degree burglary, see § 13A–5–40(a)(4), Ala.Code 1975. The State's evidence at trial tended to establish that, at some point between the late evening hours of June 27, 2010, and the early morning hours of June 28, 2010, White was brutally murdered in her home, which, the State argued, occurred during the course of a first-degree burglary and which, the State theorized, was accomplished by using a claw hammer. Although when questioned by law enforcement Kennedy initially denied having known White or having ever been in her house, the State presented evidence, which was confirmed by DNA analysis, indicating that Kennedy's blood was on several items in White's house and evidence, which was confirmed by a latent-fingerprint examination, indicating that two of Kennedy's palm prints were found in White's house.

During the penalty phase of Kennedy's trial, the jury, by a vote of 11 to 1, recommended that Kennedy be sentenced to death. After receiving a presentence-investigation report and conducting a sentencing hearing, the circuit court followed the jury's advisory recommendation, finding that the aggravating circumstances outweighed the mitigating circumstances, and sentenced Kennedy to death. Kennedy did not file any Rule 24, Ala. R.Crim. P., posttrial motions. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A–5–53, Ala.Code 1975.

On appeal, Kennedy raises several issues. One issue, however, is dispositive of this appeal—namely, whether the circuit court committed reversible error when, after it initially determined that Kennedy could represent himself at trial, the circuit court rescinded that initial determination and revoked Kennedy's right of self-representation, finding that Kennedy had not knowingly, voluntarily, and intelligently waived his right to counsel and appointing counsel to represent Kennedy at trial.¹ For the reasons set forth below, we reverse and remand.

Procedural History

The resolution of the question Kennedy raises on appeal requires this Court to first set out the lengthy procedural history regarding Kennedy's request to represent himself at trial, the circuit court's initial determination that Kennedy could represent himself at trial, and the circuit court's subsequent decision to revoke Kennedy's right of self-representation.

Kennedy, after having been indicted on March 26, 2011, appeared in the circuit court on July 11, 2011, with counsel for arraignment. At arraignment, Kennedy's counsel advised the circuit court that Kennedy "has decided he wants to represent himself" at trial. (R. 10.) The circuit court confirmed with Kennedy his request to represent himself at trial and "urge[d] [him] not to do that and [to] think very seriously about it because [he was] in a very bad situation." (R. 12.) Before it decided whether to honor Kennedy's request, however, the circuit court ordered that Kennedy undergo a psychological evaluation.

On October 12, 2011, Doug McKeown, Ph.D., a licensed clinical psychologist, conducted a psychological examination on Kennedy. Dr. McKeown concluded that, although Kennedy had a history of marijuana and alcohol use, Kennedy was competent to stand trial, had "no indication or history of a mental health related disorder," had "[n]o indication of psychological defects or intellectual limitations," and had "no indication of a lack of capacity for appropriate decision making." (C. 87.)

Thereafter, at a hearing held on December 15, 2011, Kennedy appeared without counsel in the circuit court.² At that hearing, the circuit court explained to Kennedy Dr. McKeown's findings and also addressed Kennedy's request to represent himself at trial. As to Kennedy's request to represent himself at trial, the following exchange occurred:

"The Court: Let me just try to be your best friend here. Why do you want to represent yourself? Let me back up a little bit. I was a lawyer for fourteen years. And I've been a judge for fourteen years. If I was charged with what you're charged with I would not represent myself. I don't—Let me tell you. Even if you know what to do, the fact that it's you and not somebody else, it just—your personal connection with the case is going to just destroy your judgment. That's the biggest problem. Just go ahead and just talk. Why do you want to represent yourself?

"[Kennedy]: Well, I just feel confident that I can do it myself.

"The Court: Okay. You're a well-spoken fellow. The problem is, like I say again, your hands are tied. Because it's when you're action—there are parts you play as yourself but then there are parts you play as a lawyer. And it's just hard to separate the two. And what I would like you to think about it this. Let me appoint you a lawyer and why don't you work with him? And if you don't think that lawyer is working with you—let's say you have a theory of how the case is supposed to go, what you would like to be done, witnesses you would like to be called or things you'd like to do—first of all, you need somebody on the outside tracking down witnesses; let's say to get witness statements for you. I know very little about the case and right now I don't ... want to know more. Let's say that you need a fingerprint expert. You need a lawyer to go hire that fingerprint expert. For instance, talk to that person about what was found by the State and whether it's yours or not, that type of thing. Or DNA expert, the same thing. You just can't do that from inside a jail cell. You've got to have somebody on the outside making those kind of decisions for you. There's a lot to be done in a very little time frame. You're just going to be—even if you were a thirty year, the smartest lawyer in the country, you just can't do from inside a jail cell. It would be impossible to do that. Do you get what I'm saying?

"[Kennedy]: I understand.

"The Court: I mean, the State of Alabama in a lot of ways, if people will take advantage of it, we have money available that we want to try to give you the best defense—we want to give you the best defense there is. But you've got to let us help you. Are you willing to do that? Listen. It's not like you're getting married without any chance of getting a divorce. The old days you couldn't get a divorce. If you get involved and you say I just don't like these lawyers, we can't work together, they're not listening to my input on the thing, you know how to write me. You write me a letter and we'll talk about it. But I'm just afraid that—Let me ask you this. Do you want to win or do you just want to go and be executed?

"[Kennedy]: I would like to—First of all I believe—first of all I believe this has—this is somewhat—I want to win but also at the same time I want to save my reputation. I don't just want to—

"The Court: Well, if you want to win you want to [be] exonerated or whatever, then you don't want to represent yourself. The reason I asked you that is if you wanted to commit suicide, which some people do, they just want to throw their life away and say let's get it over it, then it may be the best thing to do. But if you want to win or have a chance at winning, the chance of winning is with a lawyer. Because like I said, not only do they know the law and the courtroom but you need somebody on the outside doing the work that you can't do. Like I say, talking to witnesses, getting their statements written down, hiring experts, doing that kind of thing that you just don't have the ability to do in jail, because you can't—you're in a little cell and you can't get out and track down witnesses to get their statements. I don't have any doubt you have the intelligence to do it. It's just because you're confined. You can't do it.

"....

"The Court: Yes. In fact, it's going to probably be more difficult to save your reputation by you representing yourself. I mean, just because you hire a lawyer that's no—or I appoint you a lawyer, doesn't mean anything. It means you're smart is what it means. But like I said, you can proceed down this road and if you decide it's not the right way to go then you write me up and say, ‘Judge, I can't work with these people; they're not doing what I say.’ But let's just say you talk to one of them and say, ‘Hey, if you would talk to this person they can give you some information that will help me.’ And then the lawyer goes to talk to that person and they say, yeah, I think that might be helpful. So they take the person's statement. They make sure they're subpoenaed to be here at trial. That's real helpful to you. But you can't do that. You could subpoena them, yeah. But you might have drug down here and they may not say what you think they're going to say. So there are just a lot of things that you don't have the ability to do because your hands are tied from being in jail. But if you're dead set on it I just need to go through some of the legal procedure and make sure you understand.

"[Kennedy]: Right. I'm fine with defending myself."

(R. 29–34.) The circuit court then asked Kennedy about his background and education. Kennedy explained that he had graduated from a private high school in Mobile and also attended the University of Mississippi for two years. Kennedy further, explained, that, since 2000, he had been "[w]orking with [his] father installing satellite dishes" (R. 35) and that he knows some computer programming.

After engaging Kennedy in this colloquy, the circuit court commented that Kennedy is an "above average intelligent person and ... understand[s] what's going on here." (R. 36.) The circuit court then...