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Court of Criminal Appeals of Alabama
Decided: September 28, 2012
Andrew Reid Lackey appeals his two capital-murder convictions and sentences of death. Lackey was convicted of one count of capital murder for the murder of Charles Newman during the course of a robbery, see § 13A–5–40(a)(2), Ala.Code 1975, and a second count of capital murder for the murder of Charles Newman during the course of a burglary, see § 13A–5–40(a)(4), Ala.Code 1975.
Lackey’s appeal is before this Court in an unusual procedural posture that must be explained before this Court turns to the merits of his appeal. Lackey’s trial began on February 25, 2008, after which the jury found him guilty of two counts of capital murder. On March 3, 2008, the circuit court conducted the penalty phase of the trial, after which the jury unanimously recommended that Lackey be sentenced to death. On March 26, 2008, the circuit court conducted a judicial-sentencing hearing and sentenced Lackey to death. On April 29, 2008, appellate counsel was appointed to represent Lackey on appeal.
Shortly after appellate counsel was appointed, Lackey informed his new attorney that he did not want to appeal his convictions and sentences of death.1 According to Lackey, appellate counsel refused to listen to or to comply with his wishes, and, on February 3, 2009, counsel filed a brief challenging Lackey’s convictions and sentences. In the brief, counsel argued, among other things, that the record raises an inference that the State used its peremptory challenges in a racially discriminatory manner; therefore, this Court should remand the cause to the circuit court with instructions for that court to hold a hearing pursuant Batson v. Kentucky, 476 U.S. 79 (1986). On April 16, 2009, the State filed a brief in which it agreed to a remand for a Batson hearing. On October 28, 2010, Lackey, apparently frustrated with appellate counsel’s refusal to comply with his desire not to pursue an appeal, wrote the Alabama Attorney General. In his letter, Lackey told then Attorney General Troy King that he “wish[ed] to drop [his] appeal and to not continue to appeal [his] death penalty conviction.” (Letter to Troy King attached as an exhibit to the State’s motion for a timely ruling.) Lackey’s letter goes on to state:
“I, Andrew Reid Lackey, ․ do not wish to appeal my death penalty conviction beyond the so-called ‘automatic’ level.
“I have already written both Kristen Nelson of [Equal Justice Initiative] and my original [appellate] attorney, James Barry Abston of Huntsville, ․ several months ago. ․ I am neither crazy nor suicidal nor mentally unstable; I simply wish not to continue to appeal my death penalty conviction.
“I, Andrew Reid Lackey, willfully and knowingly declare my intentions to cease and desist my appeals over my death penalty conviction. I declare my intentions to entirely drop my criminal case appeals, fully aware [that the attorney general’s office] will seek an execution date, which I do not and will not protest.”
On November 5, 2010, this Court, unaware of Lackey’s desire to receive only plain-error review, and, in accordance with the appellate counsel’s and the attorney general’s requests, remanded the cause to the circuit court with instructions for it to hold a Batson hearing. The circuit court complied and, on December 13, 2010, the return to remand was filed with this Court.
After appellate counsel and the attorney general’s office fully briefed the Batson issue on return to remand, Lackey turned to this Court for help effectuating his desire not to pursue his briefs on appeal and to receive only plain error review. Specifically, on April 11, 2012, Lackey sent this Court a letter stating:
“Hello. My name is Andrew Lackey. I wish to drop my Batson issue and not appeal my death sentence. Please get in touch with me.”
(April 11, 2012 Letter from Lackey.) Thereafter, on June 8, 2012, Lackey filed a motion with this Court seeking to invoke his state-law right to represent himself on appeal and to “withdraw all briefs filed on [his] behalf and to withdraw any other documentation and arguments presented by [appellate] counsel ․” (June 8, 2012 motion.) In his motion, Lackey explained that he “does not wish for his sentence to be changed nor for his conviction to be reversed or remanded.” Id. He goes on to state that he “understands the law of Alabama regarding automatic review of death penalty cases and asks that th [is][C]ourt review only as strictly required under law, i.e., for plain error.” Id. Along with his motion, Lackey attached a copy of a letter he sent appellate counsel that stated:
“Dear Equal Justice Initiative and Mr. Abston:
“I thank you for you work on my behalf, but your efforts do not match my desires in this matter.
“I have tried to make my wishes clear in the past. I do not desire your services any further and your representation is hereby terminated.
Do not file anything further on my behalf.”
(Attachment to June 8, 2012 motion.)
On June 28, 2012, this Court remanded this cause to the circuit court with instructions for it to conduct a hearing during which the circuit court was to apprise Lackey of the dangers and disadvantages of waiving his right to appellate counsel, of invoking his state-law right to represent himself, and of striking the briefs that had been filed on his behalf. Before the hearing, Lackey hired new counsel (hereinafter “new counsel”) to aid him in having appellate counsel removed as his attorneys.
In accordance with this Court’s order remanding the cause, the circuit court scheduled a hearing for July 16, 2012. On July 12, 2012, appellate counsel, whose services Lackey sought to terminate, filed a motion in the circuit court seeking a continuance and a motion seeking a mental-competency evaluation by a mental-health expert. The circuit court denied appellate counsel’s motion for a continuance, and on July 16, 2012, the circuit court conducted a hearing in compliance with this Court’s instructions.
At the hearing, appellate counsel, in an attempt to remain counsel against Lackey’s wishes, argued that Lackey was incompetent to decide whether to represent himself and whether to strike all documents filed on his behalf in this Court. Lackey, through new counsel, challenged appellate counsel’s assertion that Lackey was incompetent to represent himself. Lackey also argued that he knowingly and voluntarily waives his right to counsel, invokes his right to represent himself, and exercises his right to strike all documents and briefs filed on his behalf. In accordance with this Court’s order remanding the cause, the circuit court apprised Lackey to the dangers and disadvantages of Lackey’s decision to represent himself and strike all briefs filed on his behalf. Lackey testified that he knows those dangers and has voluntarily made his decision.
After the hearing, the circuit court issued a detailed order denying appellate counsel’s motion for a mental evaluation and finding that Lackey is competent to exercise his right to represent himself. The circuit court further found that:
“Lackey’s motion to proceed pro se and to strike all briefs filed on his behalf is made knowingly, intelligently, voluntarily, and with full knowledge and appreciation of the dangers and potential pitfalls associated with such a decision.”
(R. on return to remand 14.) The circuit court then granted Lackey’s motion to terminate appellate counsel’s employment, to proceed pro se, and to strike all documents filed on his behalf.
On July 16, 2012, the return to remand was filed with this Court. Because Lackey’s was granted permission to represent himself on appeal and to strike all documents that have been filed on his behalf, this Court must first review whether the circuit court correctly determined that Lackey competently, knowingly, and voluntarily made those decisions. If this Court determines that the circuit court was correct, it must then review the sufficiency of the evidence to sustain Lackey’s convictions and sentences, search the record for plain error, and review the propriety of his sentences of death.
Under Alabama law, Lackey has the right to waive counsel on appeal and to represent himself…
First, this Court must determine whether the circuit court abused its discretion in finding Lackey competent to waive counsel, to proceed pro se, and to strike all documents filed on his behalf. Hodges v. State, 926 So.2d 1060, 1069 (Ala.Crim.App.2005) (noting that a circuit court’s determination that a person is competent to stand trial is reviewed for an abuse of discretion).
The competency standard to waive counsel and to represent oneself is the same as “the competency standard for standing trial.” Godinez, 509 U.S. at 391. Thus, a person satisfies the competency standard to waive counsel and to represent himself if “he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and ․ he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960). See also Rule 11.1, Ala. R.Crim. P. (“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.”). However, “[a] person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense [is not competent to waive counsel and represent himself].” Drope v. Missouri, 420 U .S. 162, 171 (1975).
Thus, an individual may represent himself on appeal and withdraw all documents filed on his behalf only if that person has the “capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Rees v. Peyton, 384 U.S. 312, 314 (1966). The test to determine a person’s “capacity to appreciate his position and make a rational choice,” id., involves a determination of the following:
“ ‘(1) whether that person suffers from a mental disease, disorder, or defect; (2) whether a mental disease, disorder, or defect prevents that person from understanding his legal position and the options available to him; and (3) whether a mental disease, disorder, or defect prevents that person from making a rational choice among his options.” ’
Hauser ex rel. Crawford v. Moore, 223 F.3d 1316, 1322 (11th Cir.2000) (quoting Lonchar v. Zant, 978 F.2d 637, 641–42 (11th Cir.1992)).
Before trial, defense counsel had Lackey evaluated by Frankie L. Preston, a licensed clinical psychologist, to determine whether Lackey suffered from a mental disorder at the time of the offense and to determine whether Lackey was competent to participate in his defense and to stand trial. (C. 336.) Dr. Preston described Lackey as “socially awkward, probably shy and anxious in unfamiliar surroundings, but sufficiently confident in his abilities to communicate verbally and in writing, to strategize, and financially achieve beyond most others his age.” (C. 337.) After interviewing Lackey multiple times and having Lackey perform multiple tests and questionnaires, Dr. Preston reported that Lackey has an IQ score of 84. He stated that Lackey was angry, depressed, anxious, and uncertain about his future and suffered from low morale. According to Dr. Preston, Lackey was highly introverted and uneasy in close interpersonal involvements. Dr. Preston explained that Lackey was emotionally detached and had long endured suicidal preoccupations. Dr. Preston did not, however, state that Lackey suffered from any serious mental disease or disorder.
In relation to Lackey’s competency to stand trial, Dr. Preston administered the MacArthur Competence Assessment Tool. The results of the MacArthur Competence Assessment Tool indicated that:
“[Lackey] appears to have an adequate understanding of the legal process and charges. Likewise, he should be able to consult with his attorney in a reasonable way. He has the capacity to seek, identify, weigh, and balance more relevant and less relevant information, as well as to use this data to make decisions about his own case.”
(C. 341.) Dr. Preston explained his own clinical diagnostic impressions as follows:
“Within a reasonable degree of evaluative certainty, [and] based on history (personal and collateral), interviewing, and testing, Mr. Lackey was not suffering from nor experiencing a mental disorder which would compromise his consciousness, mood, or thoughts as to being able to morally distinguish right from wrong or distinguish and understand ‘legal’ from ‘illegal’ behavior. He is able to understand the legal charges he faces; participate in his defense; conduct himself properly during Court proceedings; and appreciate the range of possible sentencing outcomes.”
(C. 342.) (Footnote omitted.) At trial, Dr. Preston testified that his examination of Lackey indicated that Lackey is an introvert who lacks confidence in social situations and becomes anxious around other people. According to Dr. Preston, Lackey “has experienced repeated episodes of persistent depressed mood and sleep disturbance accompanied by a significant weight change and social withdrawal.” (R. 1166.) At other times, Lackey “experienced repeated episodes of persistent elated mood or increased mood, increased energy level, racing thoughts and uncontrollable talkativeness accompanied by heavy spending and inflated self confidence.” Id. Lackey, however, had no experience with “thought broadcasting, thought insertion, thought withdrawal, auditory distortions or hallucinations, grandiose beliefs, persecutory beliefs or feelings of being uncontrolled.” Id. While in jail awaiting trial, Lackey thought that other people were spying on him and talking about him. Dr. Preston explained that those thoughts are “not an uncommon response for someone that’s in jail because they typically are watching you.” (R. 1167.) Dr. Preston testified that Lackey indicated that he had special powers, but it was later discovered that Lackey was referring to his skills in computer games.
Dr. Preston stated that Lackey has suffered from generalized anxiety disorder and social phobia for a large portion of his life. Dr. Preston “concluded that [Lackey] was experiencing some depression, anxiety, hopelessness[, and] pessimism about his legal situation.” (R. 1170.) Dr. Preston, however, testified that Lackey did not suffer from any severe mental disorder and concluded that Lackey was sane at the time of the offense and was competent to stand trial and to aid in his defense.2
At the hearing on Lackey’s decision to represent himself on appeal and to strike the documents previously filed on his behalf, new counsel explained that he had met with Lackey and that he and Lackey were prepared to establish that Lackey is competent and that “he knowingly and voluntarily waives his right to appellate counsel, terminates their services and strikes the briefs and requests the Court to proceed to the plain error review.” (Supp. R. on return to remand 28.) Thereafter, Lackey testified that he understands that he is incarcerated in prison for two convictions of capital murder and that he has been sentenced to death for both convictions. He has not had any problems understanding where he was or why he was in prison. He testified that he was alert during the hearing.
During the hearing, Lackey named the two attorneys who had represented him at trial. He testified that he met with those two attorneys often and consulted and assisted those attorneys during his trial.
Lackey testified that he knows his appellate counsel and understands what they do for him. According to Lackey, appellate counsel visited him every few months and discussed his case, including an issue involving Batson v. Kentucky, 476 U.S. 79 (1986). Lackey explained that his appellate attorneys told him that a Batson issue arose because the State “kicked off all the black jurors and ․ that was illegal.” (Supp. R. on return to remand 37.)
Lackey testified that he does not want his conviction overturned and a new trial ordered. He stated that he understands the seriousness of capital crimes and knows that there are only two punishments—life in prison without the possibility of parole or death. He stated that he understands that in death-penalty cases, this Court “does an automatic review [and] looks over the transcript just to make sure everything was okay.” (Supp. R. on return to remand 38.) He explained that he understands that restricting this Court to plain-error review will limit this Court’s review of his convictions and sentences. Lackey stated that he knows that his chosen course of action will result in the issues raised by appellate counsel being stricken. Lackey also stated that he is aware that if this Court does not find any plain error, he will be executed by lethal injection.
Lackey stated that he does not want his conviction or sentence overturned because he accepts his guilt and because he does not want to face the possibility of being sentenced to life in prison without the possibility of parole. He explained that he understands what lesser-included offenses are and that he could get a sentence of less than life in prison without the possibility of parole, but he does not want to take the chance of receiving a sentence of life in prison without the possibility parole. (Supp. R. on return to remand 43, 77.) Therefore, he wants to terminate counsel and have this Court conduct only a plain-error review. According to Lackey, he knows that if he represents himself and strikes all documents filed on his behalf, he will likely be executed.
Lackey stated that he wishes to terminate his appellate counsel and to represent himself because he has consistently told them since shortly after he was sentenced that he did not want to challenge his convictions or sentences. According to Lackey, appellate counsel have ignored his wishes and told him that he was “messing up their case.” (Supp. R. on return to remand 43.) Lackey’s testimony is supported by letters he has sent to the Alabama Attorney General and this Court. Further, this Court notes that, although Lackey informed appellate counsel shortly after he was sentenced to death that he did not want to challenge his convictions and sentences, appellate counsel did not raise any concerns relating to his competency until Lackey sought to represent himself and to terminate appellate counsel’s services.
At the hearing, Lackey informed the circuit court that he believed he had sufficient mental health to tell the court what he desires. He admitted that in August 2011 he attempted to commit suicide by cutting his wrists, but he explained that at that time, he was under a great deal of stress as a result of being on death row and his insomnia. Since that time, however, he has been on medication, and the medication has helped him, but it does not affect his judgment.3 He further testified that his decision to proceed pro se, to terminate his counsel’s representation, and to strike all documents filed on his behalf is not an attempt to commit suicide. He explained that he is “just accepting guilt for what [he] did[, and, although his appellate counsel say] its suicide, ․ it’s not.”
Next, this Court must review whether the circuit court correctly found that Lackey knowingly, intelligently, and voluntarily made his decision to waive counsel, to proceed pro se, and to strike all documents filed on his behalf in this Court. Johnson, 40 So.3d at 756–57; Sibley, 775 So.2d at 240; Block, 744 So.2d at 406.
Finally, this Court has meticulously searched the entire record for any error, plain or preserved below, that may have adversely affected Lackey’s substantial rights. This Court has found no merit to any issue preserved below for appellate review and no indicia of plain error. See Rule 45A, Ala. R.App. P.
Accordingly, Lackey’s convictions and his sentences of death are affirmed.
1. James Barry Abston was appointed to represent Lackey on appeal. At some point shortly thereafter, Randall S. Susskind and Kristen M. Nelson, with the Equal Justice Initiative, joined Lackey’s appellate defense team. It does not appear that the attorneys from the Equal Justice Initiative were appointed to represent Lackey; instead, they appear to have injected themselves into the litigation.
2. After interviewing Lackey’s parents and his brother, Dr. Preston hypothesized that Lackey might suffer from Asperger’s Syndrome, but he was unable to confirm or disprove his hypothesis through examinations of Lackey.
3. At the hearing, appellate counsel stated that the fact that Lackey had been prescribed and was taking psychotropic drugs is evidence that he is incompetent. The record, however, does not establish whether Lackey was taking psychotopic drugs, antidepressant drugs, sleep aides, or some other type of drug. Accordingly, appellate counsel’s assertion is unsupported by any evidence in the record.