ANDREW REID LACKEY v. STATE OF ALABAMA — (Court of Criminal Appeals of Alabama)

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.

I.

Under Alabama law, Lackey has the right to waive counsel on appeal and to represent himself…

A.

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.