[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 20, 2010
No. 09-12728 JOHN LEY
________________________ CLERK
D. C. Docket No. 04-00301-CV-2-WKW-SRW
DARRYL PIERRIE HALL,
Petitioner-Appellant,
versus
WILLIE THOMAS,
Warden,
TROY KING,
Attorney General of the State of Alabama,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(July 20, 2010)
Before HULL, WILSON and FARRIS,* Circuit Judges.
HULL, Circuit Judge:
Alabama prisoner Darryl Pierrie Hall appeals the district court’s denial of his
28 U.S.C. § 2254 petition for a writ of habeas corpus. After review and oral
argument, we affirm.
I. BACKGROUND
In Alabama state court, Hall was convicted of three counts of first-degree
robbery and four counts of second-degree kidnaping.1 He received concurrent
sentences of life imprisonment on each robbery conviction and twenty years’
imprisonment on each kidnaping conviction. Hall’s § 2254 petition claims that his
confession was not knowing and voluntary and his trial counsel was ineffective.
A. Hall’s Arrest and Indictment
The state charges against Hall stem from his participation with Alonzo Leak
in a robbery and kidnaping on October 15, 1999. Leak and Hall, both juveniles,
kidnaped and robbed four adults (three women and one man) at the Little People’s
Workshop, a day care center in Montgomery, Alabama. Leak raped one of the
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
1
Hall was originally indicted for rape and sexual abuse as well as robbery and kidnaping.
Hall was tried three times. In the first trial, the jury acquitted Hall of the rape and sexual abuse
charges but was unable to reach a verdict on the robbery and kidnaping charges. There was a
hung jury at the second trial. Hall was convicted of robbery and kidnaping at the third trial.
2
women and tried to rape another. At the time of the crimes, Leak was 17 and Hall
was three weeks shy of his 16th birthday.
The district court summarized Leak’s involvement as follows:
In the early evening hours of October 15, 1999, Leak entered [the] day
care center . . . and pulled a gun on its owner. He then corralled the
owner and the other adults in the building, a parent and her male
friend, and herded them into a bathroom. He took them out of the
bathroom in stages and had them bind each other, but placed them in
various rooms in the small center. He periodically left them
unattended and would return to ask the owner for information related
to items in the building. After the victims were bound, another parent
came into the center to pay her day care fees. Leak threatened her with
a gun, and she complied with his request to bind the remaining
unbound victim, and then, he proceeded to rape her. He attempted to
rape the other parent as well, physically assaulting her with his hands
and gun, and using others to disrobe her. He never followed through
on the rape because the victim lied and said she had a sexually
transmitted disease . . . . Leak eventually left, and the victims called
for help.
Hall v. Thomas, 623 F. Supp. 2d 1302, 1305-06 (M.D. Ala. 2009) (footnote
omitted). As to Hall’s involvement, the district court pointed out that no victim
actually saw Hall: “The victims testified that throughout the encounter there
appeared to be other accomplices in the building or that Leak spoke of other
accomplices, but no one witnessed another participant.” Id. at 1306.
The day after the crimes, police identified Leak as a perpetrator, arrested and
took him to police headquarters, and questioned him, at which time Leak
immediately implicated Hall. Id. Hall lived near the Little People’s Workshop and
3
used to attend it. Id. Leak told police that “Hall told him that committing the
crimes would position Leak to join a gang, and that Hall was outside the center
during the attack providing advice to him on how to carry out the crimes.” Id. at
1306.
On October 17, 1999, two days after the crimes and one day after Leak’s
arrest, police officers, including Officer M. L. Major, came to Hall’s house. Id.
Hall’s parents were home and invited Major into the house. Id. Officer Major
arrested Hall and brought him to the police station. Prior to any questioning,
Officers Major and W. T. Grant read Hall both his Miranda rights and the state-
required warning for juveniles subject to interrogation. Id. Hall signed forms
waiving those rights. Id. Hall confessed to the robbery and kidnaping crimes.2 Id.
His confession was recorded on audiotape.
An Alabama grand jury indicted Hall on three counts of first-degree robbery
and four counts of second-degree kidnaping. Hall pled not guilty.
B. Officer Major’s Testimony in Suppression Hearing
On March 9, 2000, Hall filed a motion to suppress his audiotaped
confession, arguing it was involuntary, coerced, and made without a knowing and
intelligent waiver of his right to counsel. Hall alleged that his parents were not
2
Hall did not confess to the rape or sexual abuse crimes and, as noted earlier in footnote
1, supra, was acquitted of those charges in the first trial.
4
permitted to be present and that the officers obtained his confession through
“[p]sychological ploys, threats and promises, fatigue and physical violence” in
violation of the Fifth and Fourteenth Amendments.
The state trial court held a suppression hearing. Six witnesses testified,
including Officer Major, Hall’s father, and Hall.
Officer Major testified about his investigation and about Leak’s and Hall’s
statements. After Leak implicated Hall, Officer Major went to Hall’s house and
arrested him. Officer Major advised Hall of the crimes he was being arrested for
but did not question Hall at his house or read his Miranda rights then. Hall’s
mother and father were present at Hall’s house and observed Hall’s arrest.
At the police station, Hall was taken to Officer Major’s office to be read his
Miranda rights and questioned. Hall’s left arm was handcuffed to the desk, which
Officer Major testified was standard procedure. Hall’s right hand was free.
Before any questioning, Officer Major read Hall both his state juvenile
rights and his adult Miranda rights forms.3 Officer Major testified that he also gave
3
Rule 11(B) of the Alabama Rules of Juvenile Procedure (in effect at the time of Hall’s
arrest and his later trials), provided for the rights of a child who is in custody but has not yet
been questioned. Rule 11(B) provided as follows:
Before the child is questioned about anything concerning the charge on which the
child was arrested, the person asking the questions must inform the child of the
following rights:
(1) That the child has the right to counsel;
(2) That if the child is unable to pay a lawyer and if the child's parents or guardian
have not provided a lawyer, one can be provided;
(3) That the child is not required to say anything and that anything the child says
5
Hall an opportunity to read the forms on his own. Hall read and signed both forms,
confirming he understood his rights and agreed to answer questions. The content
of the state juvenile rights form made it clear Hall had a right to remain silent, a
right to counsel, and a right to communicate with his parent before questioning as
follows:
Before asking you any questions, I must explain to you that you can
remain silent, that anything you say can be used against you in court,
that you can talk to a lawyer first, and that you have the right to the
advice and presence of a lawyer even though you cannot afford to hire
one. If you cannot afford to hire a lawyer and want to have one
present during interrogation, the court will appoint one before we
question you. If you want to answer questions now before you – if
you want to answer now, you can do so, but stop answering at any
time. You have the right to communicate with your parent or
guardian before questioning and, if necessary, reasonable means will
be provided for you to do so.
(Emphasis added). Officer Major signed the form to indicate that he had read this
paragraph to Hall. The form also contained this paragraph that Hall read aloud to
Officer Major, and which Officer Major then read back to him, stating Hall was
willingly answering questions and knew what he was doing:
I fully understand the foregoing statement and do willingly agree to
may be used against the child;
(4) That if the child's counsel, parent, or guardian is not present, then the child has
a right to communicate with them, and that, if necessary, reasonable means will
be provided for the child to do so.
Russell v. State, 739 So.2d 58, 66 (Ala. Crim. App. 1999) (quoting Ala. R. Juv. P. 11(B)). As of
January 9, 2009, § 12-15-202(b) of the Alabama Code provides these same rights to a child taken
into custody prior to questioning, and Rule 11 has been rescinded.
6
answer questions. I understand and know what I am doing. No
promise or threats have been made to me by anyone and no pressure
of any kind has been made against me by anyone.
Hall also signed below this paragraph indicating he had read it. The state juvenile
rights form was dated October 17, 1999 and indicated that Officer Major read the
form to Hall at 5:42 p.m.
Out of an abundance of caution, Officer Major then also read aloud, and Hall
also signed, the adult Miranda rights form at 5:44 p.m. The only difference
between the state juvenile rights form and the adult Miranda rights form was that
the adult form did not contain this sentence: “You have the right to communicate
with your parent or guardian before questioning. If necessary, reasonable means
will be provided for you to do so.” Otherwise, the forms were the same.
During trial, Officer Major testified that after Hall signed the forms waiving
his state juvenile rights and his Miranda rights at 5:42 p.m. and 5:44 p.m.,
respectively, and before taking Hall’s taped statement at 7:06 p.m., Officer Major
and Hall “sat there and generally talked,” and Officer Major then “jotted a few
things down” and went and talked to his supervisor. Paperwork was also
completed in the intervening time. When the audiotaping began at 7:06 p.m.,
Officer Major again read both the state juvenile rights and adult Miranda rights.
On the audiotape, Hall again said that he understood both his state juvenile rights
and his adult Miranda rights. Officer Major testified that Hall “said yes, sir to both
7
his juvenile rights, because I read both of them on tape to him, and he said yes, sir
to his adult rights as well. They were both read to him.” At the end of the
confession, Hall again confirmed on audiotape that he had twice been advised of
his state juvenile rights and adult Miranda rights by Officer Major, and that he
understood them. Hall also stated that no threats had been made to him. The
audiotape of the statement began at 7:06 p.m. and ended at 7:26 p.m.4
Officer Major testified that Hall’s father wanted to come to the police station
and was at the police station but did not ask to be in the room during the
questioning.5 According to Officer Major, Hall himself never asked for his father
4
A transcript of this taped statement is attached as an appendix to this opinion.
5
Officer Major testified about his interaction with Hall and Hall’s father as follows:
Q. You took the young man downtown, correct?
A. We took him to police headquarters, yes, sir.
Q. Didn’t the father say I would like to be there when you question him?
A. The father was at headquarters on the back desk. These rights clearly state
that the son has to ask for the father.
Q. At the house when you handcuffed him and you were taking him down --
A. I advised his father to come to police headquarters.
Q. Did [the father] say he wanted to be there when you questioned the young
man?
A. No, he did not.
Q. He did not. Did the young man say he wanted his father to go with him?
A. He said that he wanted his parents.
Q. Okay.
A. He said . . . I asked him the question. He said he wanted his parents to come
down. When we read him his juvenile and his adult Miranda rights, he never
asked for his parents because I asked him several times.
...
Q. When you were at the house and you handcuffed him?
A. I did not have a rights form. No, I did not read him his rights.
Q. So you did not read his rights at that time?
A. No, sir.
8
to be in the room with him. Officer Major did not ask Hall’s father if he wanted to
come in. During the suppression hearing, Hall’s attorney asked Officer Major
whether, at the time of Hall’s arrest at his home, Hall’s father said he wanted to be
present for the questioning. Officer Major responded the father said he wanted to
be present but the fact remains that the son, after being read his rights, never asked
for his father or an attorney:
I don’t remember . . . [the father’s] exact words. I know he said he
wanted to be present; therefore, I told him how to get to police
headquarters. He came down. The fact remains, when his son was
read his Miranda rights, he did not ask for his father. He did not ask
for his mother. He did not ask for an attorney. He didn’t ask for
anybody. All he said was, yes, sir, I understand. Do you want to
answer questions now? Yes, sir. That’s all that happened.
Officer Major later testified that he went outside and walked by Hall’s father
sitting on a bench, and Officer Major did not recall Hall’s father saying anything to
him. Neither Officer Major nor anyone else made any promises or threats to Hall.
Q. His father said I would like to go down there and be there when you
questioned him. Is that true?
A. And his father was present at police headquarters. The son did not ask for his
father to be in the room present, period, at all. He did not ask for his father.
Q. Did you ask the father if he wanted to come in?
A. No, I did not.
Q. The father wanted to be there?
A. The son has to request for his father.
(Emphasis added).
9
They did not coerce or trick Hall into making a statement.6
In summary, Officer Major read Hall his state juvenile rights at 5:42 p.m.
and adult Miranda rights at 5:44 p.m. Hall then read them himself. The officers
then questioned Hall for a little over an hour, during which time Hall confessed.
The officers then audiotaped Hall’s confession from 7:06 p.m. to 7:26 p.m., which
included Officer Major’s second reading of Hall’s state juvenile rights and adult
Miranda rights at the beginning of the audiotape and an additional confirmation by
Hall at the end of the audiotape that he twice had been read both his state juvenile
rights and adult Miranda rights. This means within a space of one hour and 15
minutes, Officer Major told Hall out loud four times that he had a right to remain
silent and a right to counsel and twice that he had a right to have his parent present
before questioning. Hall read his rights too and twice said he understood them.
According to Officer Major, Hall waived his rights before confessing and did not
request his father’s presence during questioning.
C. Father’s Testimony in Suppression Hearing
Curtis Hall, Hall’s father, also testified and his account differs in some
respects from Officer Major’s. When Officers Major and Grant came to his house
6
In addition to Officer Major, Officer Grant was present during Hall’s arrest and
questioning and testified that Hall was read his state juvenile rights and adult Miranda rights and
signed the waiver forms. Hall did not appear to be scared. Officer Grant did not hear Hall’s
father ever request to be present during Hall’s questioning.
10
and arrested Hall, Curtis Hall asked Officer Major, “since you are the one doing all
the talking, shouldn’t me as a parent or an attorney be present when y’all get ready
to question Darryl?” Officer Major replied, “yes, you can.” The officers took Hall
to the police station in a patrol car.
Curtis Hall went on his own to the police station. He waited in a hallway for
ten to fifteen minutes. Officers Grant and Major walked past him. According to
Curtis Hall, Officer Major said, “We will call you when we get started.” Curtis
Hall stayed another fifteen to twenty minutes. He finally went downstairs, and
Officer Major showed him to a bench down there. Curtis Hall stayed on that bench
“anywhere from forty-five minutes to an hour, maybe a little longer than that.”
At one point, Officer Major came out of the interview room complaining of
a headache, and Curtis Hall asked whether they had started questioning Hall.
According to Curtis Hall, Officer Major replied, “Yes. He is lying but we will get
it out of him,” and then Officer Major “turned around and went right back quick.”
Curtis Hall testified, “[s]till [the officers] never come and asked me, tell me they
had started the interrogation. I am sitting there waiting to go in there.” Curtis Hall
never entered the interview room. Officer Major did tell Curtis Hall that Hall was
read his rights and understood them. Curtis Hall never saw his son at the station
11
until Hall came out of the interview room.7
D. Hall’s Testimony in Suppression Hearing
Defendant Hall also testified about the questioning. After being arrested and
put into the police car, Defendant Hall heard his father ask if he could be present
when Hall was being questioned. Officer Major told Hall’s father he could. At the
police station, before the officers began questioning him, Hall asked about his
father:
I said, where is my daddy? I thought my daddy was supposed to be
here when y’all are questioning me. They said, don’t worry, he is
upstairs.
Hall testified that the officers handcuffed him to the desk and threatened him
during the questioning:
First they read all that what Alonzo said. Then they said, is this true?
I said, no, sir. Then Grant said, why are you lying? I said, I ain’t
lying, sir, I promise you. Y’all got the wrong one. The other man
said, stop lying, we know you did it . . . . I said, I don’t know nothing
about it, I want to go home . . . . He said, I am tired of you lying to
me, son. He pointed to Mr. Grant. Mr. Grant came around. He
kicked the chair and turned it around and the thing clamped real hard
and squeezed my arm. I said, I don’t know what you are talking
about, sir. Then the other man said, we know you did it. I said, no, I
didn’t. He kicked it again. Then it hurt more. Everything on my
body was shaking. He said, I am tired of you children lying. I said, I
don’t know what you are talking about. He said, why are you lying?
He hit the desk. Grant did just like that. I jumped. He kicked it again
7
Curtis Hall’s time estimates are consistent with the officers’ timeline, which shows Hall
was questioned for a little over an hour and then his confession was taped from 7:06 p.m. to 7:26
p.m.
12
and turned it over.
Defendant Hall does not dispute that Officer Major twice read him both his
state juvenile rights and adult Miranda rights. Hall also admits he read and signed
the state juvenile rights form and the adult Miranda rights form but testified he did
not understand them. Hall signed the statement confessing his involvement
because he was scared of the officers and tried to tell them what they wanted to
hear to “keep them from attacking me.” Hall testified he knew what to say in his
confession because the officers read Leak’s statement to him four or five times.
E. State Court’s Denial of Motion to Suppress
After the witnesses testified, Hall’s counsel argued to the state trial court that
Hall had a right to have his father present during the questioning at the police
station. The state trial court inquired whether defense counsel had “any cases that
suggest that a father has the right to exercise the right to be there as a parent.”
Defense counsel argued that Hall’s question “where is my daddy,” together with
Hall’s father’s expressed desire to be present, were sufficient to invoke Hall’s right
to have his father present during the questioning. Hall’s counsel argued that “in
the interest of justice, maybe . . . if a parent wishes to see a young kid of fifteen
years of age, if the parents want to see him, if he is there for questioning, I think it
would be the same thing if he asked, which he did, where is my father.”
Ultimately, the state trial court determined that it was the accused’s right to
13
assert, not the father’s, and the officers had testified Hall never asked for his father.
The state trial court thus denied Hall’s motion to suppress.
F. First and Second Trials
During the first trial, Hall put on an alibi defense, to wit: that at the time of
the crimes, he was at home on the phone with several friends. As to his
confession, Hall testified that he told the police officers what they wanted to hear
because he was scared.
The jury was unable to reach a verdict on the robbery and kidnaping
charges. After the first trial, Hall’s counsel withdrew for health reasons and was
replaced by counsel Valerie Smedley.
At the second trial, Hall renewed his same motion to suppress which the
state trial court again denied. Hall again presented his alibi defense, to wit: that
from approximately 3:00 p.m. until after 6:00 p.m. on the day of the crimes, he was
at home on the phone with several friends.
For the first time in rebuttal, the State called Terry Spidle,8 a records
custodian for BellSouth, Hall’s telephone provider. Spidle testified that for
telephone subscriptions such as Hall’s, BellSouth kept records of outgoing local
8
Spidle’s name also appears in the record spelled “Spidel.” For the sake of consistency,
we use the spelling “Spidle.”
14
calls for eighteen months.9 Spidle testified that, according to BellSouth’s records,
neither Hall nor his friends (whom Hall claimed were on the phone) placed any
outgoing telephone calls from 3:00 p.m. to 6:00 p.m. on October 15, 1999.10 The
jury again was unable to reach a verdict.
G. Third Trial
In the third trial, Valerie Smedley again represented Hall. Hall again
renewed his same suppression motion, which the state trial court again denied.
The State called these witnesses: (1) the four victims (Diane Jackson, Benson
Rivers, Crystal Franklin, and Barbara Rush), (2) Sargeant Ronald Wilhoit, and (3)
Officer Major.
The defense called: (1) Defendant Hall, (2) Joseph Grady, (3) Reginald
Powell, (4) seven alibi witnesses (John Cartas, Ann Cartas, Dwayne Hall, Quinton
Armstrong, Jarvis Blocton, LaQuanda Hall, and Bonnie Hall), and (5) Curtis Hall.
In rebuttal, the State called: (1) Officers Grant and Major, and (2) Charles
Chambers, a BellSouth records custodian. Because Hall claims his trial attorney
was ineffective, we outline the trial evidence in detail.
1. Four Victims’ Testimony
9
BellSouth kept records of incoming local calls for only 60 days.
10
Spidle testified that the State subpoenaed BellSouth for the records in May 2000, which
was after the first trial concluded and more than 60 days (but less than eighteen months) after
October 15, 1999 (the date Hall claimed the calls occurred).
15
The four victims recounted the crimes.
On October 15, 1999, Diane Jackson, owner of the Little People’s
Workshop, was working at the day care center. That evening at about 5:00 p.m. or
5:15 p.m., Barbara Rush, a parent of a child attending the center, came in to fill out
paperwork. Benson Rivers came with Rush, his girlfriend.
Around 5:30 p.m., while Jackson, Rush, and Rivers were there, the last
children left. Shortly thereafter, a tall black male in his late teens arrived and rang
the bell. Jackson did not know him, but she later identified him as Leak. Leak
asked about a child. Jackson responded that the child did not attend the center, and
Leak left. Jackson saw Leak walk across the parking lot.
A few minutes later, Leak rang the doorbell again. When Jackson opened the
door, Leak drew a gun. Leak came inside and told Jackson, Rush, and Rivers to
empty their pockets and give him their money. Leak took Rivers’ money, jewelry,
and wallet. Then Leak moved the three victims into a bathroom. While he was
doing so, Leak told someone to stay back. Leak was not speaking to victims
Jackson, Rush, or Rivers, but to another person whom Jackson did not see and thus
could not identify. Leak told the victims that he had accomplices outside.
Leak ordered Jackson to tie up Rivers and then put Rivers in a closet by
himself in one of the bedrooms in the daycare center. Leak then ordered Rush to
tie Jackson up with telephone cords and forced Rush and Jackson to lie down in a
16
different bedroom than where Rivers was located.
Around 6:00 p.m., Crystal Franklin, a parent of a daycare center attendee,
arrived to pay her fees. Leak pointed a gun at Franklin and ordered her to lie down
in the hallway. Leak then ordered Rush and Franklin into the same bedroom where
Rivers was in the closet, and he ordered Franklin to tie Rush up with a telephone
cord. Leak then told Franklin to go into the hallway and take her clothes off. Leak
raped Franklin in the hallway.11 Jackson heard Leak raping Franklin. Rivers heard
Leak say he was going to have sex with Franklin, and then he heard Franklin
saying “no, no, no” and screaming.
After raping Franklin, Leak left, returned again, and then ordered Franklin,
who had tied Rush up, to take off Rush’s shorts. Leak fondled Rush and put his
gun inside her. Rivers heard Leak say he was going to have sex with Rush. Rush
told Leak she had a disease, and he did not rape her. The other three victims all
heard Rush tell Leak she had a disease. Leak then took Franklin’s money and four
rings that she was wearing.
Leak left the now four victims alone several times and returned periodically.
Rivers testified that Leak went back and forth in the back of the daycare center,
returning periodically to check on the victims, and told them that he had “other
11
Jackson and Franklin testified that Franklin tied Rush up before she was raped; Rush
testified that Franklin was raped before she was ordered to tie Rush up.
17
people outside.” Jackson testified that Leak returned periodically and asked her
questions about the daycare center, such as “if there was a key to the Coke machine
or what was in these cabinets,” or “what was in the lock box” on her desk. Rush
also testified Leak “seemed confused[,] . . . as if he didn’t know what he was
doing. He would go back – he would tell us something and he would go back and
tell us something again and come back and tell us something different.” According
to Rush, Leak “seemed just as scared as we were.” During this time, Leak also
asked Franklin for her keys. Shortly after he took Franklin’s keys, Leak threw
them back to her.
The victims testified that they thought another person was present during
the robbery. Leak went into the kitchen at one point, and the victims heard
cabinets opening and shutting in the kitchen. Jackson testified that the cabinets
were being opened and shut too quickly for one person to be opening and closing
them alone. To Franklin also, “[i]t sounded like it was more than one person”
when she heard the cabinets slamming. Rivers also testified that he heard “noises
like there was more than one person in there.” Rush testified that she believed
another person could have been present because Leak would appear before them
very shortly after she heard noises at the opposite end of the daycare center, and
because Rush also heard the cabinets slamming quickly.
During the robbery, Leak also told the victims he had people outside. At
18
one point, Rush heard Leak “yell[] a name like up front,” as if he were asking a
question, but Rush did not remember what the name was. At the time, Rush
thought Leak was lying and that it was a “scare tactic.” Rush testified that Leak
referred to the people outside as “my boys.”
One of the last times Leak returned to the victims, Leak told the victims his
name was “Joseph Grady”12 and he lived in a group home on Troy Highway. Leak
said he could give them his name because no one would find him. Leak also said
the last time he robbed someone he had to kill his victims. None of the victims
heard Leak use Hall’s name during the crimes.
After a period of time, the victims realized Leak had left. They untied each
other and called the police. Franklin testified that after the incident was over, she
could tell that someone had gone through the items in her car.
Jackson testified that Hall used to attend the Little People’s Workshop, and
that he lived directly behind the day care center. Franklin also knew Hall through a
mutual friend, John Cartas, that the three of them used to go Wal-Mart together,
and that Hall had enjoyed playing with Franklin’s daughter.
2. Leak’s Testimony
Leak pled guilty to rape and robbery charges stemming from the Little
12
Joseph Grady is an actual person who testified at trial.
19
People’s Workshop crimes but was not yet sentenced at the time of Hall’s trial.
Later, Leak was sentenced to life imprisonment.
Leak testified that he encountered Defendant Hall on the morning of October
15, 1999. Hall, who was an acquaintance and former classmate of Leak’s,
approached Leak with a proposition to get Leak into a gang. Defendant Hall told
Leak that, to be admitted, Leak would need to rob the Little People’s Workshop.
Later that afternoon, about 4:00 p.m., Hall again approached Leak and suggested
they immediately rob the day care center.
Defendant Hall gave Leak a .38 revolver and instructed Leak to enter the
building, give two false names, and see how the place looked on the inside.
Defendant Hall had a 9mm handgun. Leak entered and returned outside, and Hall
told Leak to rob the day care center while Hall went around the side of the
building.
Leak went inside, drew his gun, and had the victims tie one another up.
Leak then let Defendant Hall into the building and spoke with Hall to get more
directions. Franklin arrived, and Leak robbed her. Leak searched the day care
center for money. Leak wanted to leave, but Hall told Leak to go back and rape
Franklin. Leak did so and returned to Hall. Leak said Hall’s name, and Hall said,
“don’t say that name.” Hall told him to use the name “Joseph Grady” and to go
20
back and rape Rush.13 Leak went back to rape Rush, but she told him she had a
disease, so he did not rape her. Leak used the name “Joseph Grady” in front of the
victims and told them that Joseph Grady lived on Troy Highway. Leak went
outside with Hall, who searched Franklin’s car and then gave Franklin’s keys back
to Leak. Leak went back inside for a while and threw Franklin’s keys back on the
ground.
Leak estimated he was at the Little People’s Workshop for about an hour
and fifteen minutes. After he left, Leak gave Hall the money and guns back. Leak
kept Franklin’s rings. When Leak was arrested, he was taken to the police station,
waived his rights, admitted his involvement, and told police that Defendant Hall
was with him.
On cross-examination, Leak testified that the robbery was part of the
initiation into the “Bloods” gang. Leak admitted that although he said on direct
that he was nervous inside the Little People’s Workshop because it was the first
time he had committed a robbery, Leak previously had burglarized a woman’s
home and attacked her with a hammer.
Leak testified he went into the kitchen only once during the robbery, and he
did not go through the cabinets or drawers. Leak said he never took the money
13
It is unclear whether Hall told Leak to use the name “Joseph Grady” to refer to Hall or
to refer to Leak.
21
from Rivers’s wallet and that he took only about fifty dollars from the scene,
although Rivers testified that Leak took eleven or twelve hundred dollars from his
wallet.
3. Sergeant Wilhoit’s Testimony
Sergeant Ronald Wilhoit, a gang expert with the Montgomery Police
Department, testified about general gang culture and presence in the community.
Wilhoit testified that gangs were present in local schools and that a gang
associate’s commission of a crime made it more likely that the associate would be
“blessed in,” or given full membership, to the gang by the gang’s senior members.
Wilhoit interviewed Defendant Hall, who said he associated with members
of the “Crips” and “Folk Nation” gangs. Hall told Wilhoit that he associated with
Leak and other suspected gang members. Hall also told Wilhoit that he was
associated with “Mob One,” a local non-traditional gang, as well as other
traditional gangs.
4. Officer Major’s Testimony
Officer Major testified that after he examined the crime scene and took
statements from the victims, he took Leak into custody and interviewed him. Leak
identified Hall as his accomplice. Officer Major brought Hall to the police station,
read him his state juvenile rights and adult Miranda rights, and questioned him.
22
Hall’s father was waiting outside the interview room, but Officer Major did not
bring him in because Hall did not ask for him, and it is the juvenile’s right to have
a parent present during questioning, not the father’s:
If Darryl doesn’t ask for his father, his father can ask all day long. . . .
It’s the juvenile or the defendant’s right[,] [s]o Darryl has to
physically ask for his father. And at that time I would have brought
his father in. . . . [H]e did not ask for his father. Because had he asked
for his father, I would have told his father to come. All he had to do
was ask for his father.
The audiotape of Hall’s confession was played for the jury. At the
beginning of his taped statement, Hall acknowledges that Officer Major already
read him both his state juvenile rights and his adult Miranda rights, that he signed
the waiver forms, and that he understood his rights. Then on the audiotape, Officer
Major again reads Hall out loud his state juvenile rights, telling Hall specifically
that he had the right to communicate with a parent or guardian before questioning.
Hall states that he understands these rights and that he signed the waiver form. On
the audiotape, Officer Major then reads Hall out loud his adult Miranda rights.
Hall states that he understands these rights and that he signed the waiver form.
On the audiotape Hall then describes the crimes. Hall saw Leak on October
15, 1999 at around 4:00 p.m., and Hall told Leak that he had to rob the Little
People’s Workshop in order to get into a gang and because Hall needed the money
to go to the homecoming dance that night. Hall and Leak went to the Little
23
People’s Workshop. Hall told Leak to go to the front of the building and that Hall
would go to the back in order to look out. Before the robbery, Hall gave Leak two
guns Hall had gotten about two months earlier from a friend named Reginald
Powell.
Leak went into the day care center two or three times and stayed in the
center approximately thirty minutes each time. While Leak was robbing the day
care center, Hall walked into the center twice. The first time, Hall only stepped
into the center and then exited, but the second time he stayed for about five
minutes, coming approximately three or four feet into the center. During that time,
Hall saw Leak tell Franklin to get on the ground and Franklin crying as Leak stood
over her. Hall did not see Leak rape Franklin. Hall stated that he exited the center
and did not come back in after that point. Hall said that he heard Leak yelling at
people to be quiet and “get down,” and telling Franklin to “shut up.” Hall said that
he did not know how many people were actually inside the center, but he thought
maybe 15 or 20. However, Hall saw only Leak and Franklin and a few others
when he entered the center. At one point, Hall stated that Leak called Hall by his
first name, and Hall, in response, said the name “Joseph Grady” and stated that he
lived on Troy Highway to conceal his identity.
During the taped confession, Hall also confirmed to Officer Major that Leak
24
gave him the keys to Franklin’s car, and Hall went into Franklin’s car, looked
around, and then closed the door to the car and returned to the daycare center. Hall
also stated that he knew Franklin through John Cartas, that he and Franklin were
friends and he knew her well.14
Hall stated that after committing the crimes, Leak ran out the back door of
the center and gave Hall some of the money he had stolen, and they both then ran
toward their homes. Hall later met back up with Leak and gave the money back to
Leak. After running away from the center, Leak gave Hall two checks. Hall
initially told the officers that he had cashed checks he got from Leak at a Winn
Dixie but later stated that he ripped the checks into small pieces and threw them
into some water in a drainage ditch behind a Winn Dixie.
During his taped confession, Hall also stated that he told Leak to kill the
people in the daycare center because they might later be witnesses against Leak
and Hall.15 Hall did not know why Leak did not kill the people in the center. Hall
denied telling Leak to rape the women in the center.
Hall told the officers where he thought the two guns were located, one being
near the doghouse at Leak’s house, and one possibly by a ditch near Hall’s house.
14
Hall said Franklin was the only person inside the day care center that he knew.
15
During the taped statement, Officer Major referred to Leak several times as “Joseph,”
which Officer Major later testified was a misstatement.
25
According to Officer Major, the officers searched the drainage areas near Hall’s
house as well as the area near Leak’s house and did not find the guns.
Officer Major admitted there were some inconsistencies between Defendant
Hall’s confession and the victims’ statements. Officer Major attributed the
inconsistencies to Hall and Leak perceiving things differently. Officer Major stated
that Hall originally said there were twenty or thirty people in the Little People’s
Workshop, but when pressed on this point Hall said he did not really know how
many people were there.
5. Defendant Hall’s Testimony
At the third trial, Defendant Hall testified in his own defense. On October
15, 1999, Hall went to and returned from school with his sister LaQuanda. Hall
and LaQuanda walked to pick up their two other sisters from school, and during
their walk home they met one of Hall’s friends, Sunkeissa Cantrell. Hall briefly
encountered Leak, who said he was coming home from school. Leak said nothing
else to Hall. After Hall got home, his brother Dwayne Hall arrived home a little
after 4:00 p.m. Hall’s mother arrived shortly after Dwayne Hall and fixed dinner.
Cantrell called Hall to talk about the homecoming dance scheduled for that
night at 7:00 p.m. That afternoon, Hall also spoke on the phone with his friends
Stacie Sweazer, John Cartas, Jarvis Blocton, and Quinton Armstrong. It was a
26
multi-way phone call, “like a three-way and four-way type.” One person would
hang up, put someone on hold, and call another person, with several of the friends
on the phone at the same time. They were discussing arrangements for going to the
dance. John Cartas said he did not know if he would go because he only had two
dollars and the dance cost five, but Hall said he had eight dollars and would loan
John Cartas three dollars to get into the dance.16 John Cartas testified that Hall
gave him a dollar toward his admission.
Defendant Hall and John Cartas attended the dance. They got a ride with
Cartas’s mother, who picked Hall up at Hall’s house at about 7:15 p.m. On their
way out to the dance, they saw a bunch of police cars at the Little People’s
Workshop. Hall spent that night at John Cartas’s house.
Two days later, police officers arrived at Hall’s house around 4:00 p.m. and
arrested him. They took Hall to the police station. When Hall arrived, he “asked
could my dad be in there. And they said don’t worry about it, he’s upstairs.” Hall
asked again, telling the officers, “I want my dad in here before y’all start
questioning me. They said don’t worry about it, he’s upstairs again and told me to
sit down and handcuffed my hand against the desk.” Hall admitted he signed the
16
Defendant Hall testified he got the money from his job at a local Days Inn and that he
was paid the Friday before the crimes. The owner of the Days Inn, Jay Patel, testified that he
last paid Hall on October 10, 1999, when he wrote Hall a check for twenty dollars. The crimes
and the dance both took place on October 15, 1999.
27
state juvenile rights form and the adult Miranda form, but said he did not have a
chance to read them first, and that the officers explained them to him after he
signed them.
Hall admitted he made the taped statement, but said he was threatened:
[B]efore I made that statement, they kept reading [from their notes] to
me over and over until I had a real understanding. But I told them it
ain’t me. They said why you lying. I said I ain’t lying. And he had
pointed at Officer Grant. Officer Grant came over and kicked the
chair and said why you lying, why did you rob and rape the folks. I
said I don’t know what you’re talking about, sir. And he kicked the
chair and the handcuff got real tight on my wrist. Then he balled his
fist up at me. Then I jumped. Then Officer Major he hit the table and
said, you keep lying and we are going to put you in the county with no
bond. There is some boys can rape you.
On cross-examination, Hall testified he left to pick up his sisters after school
at about 3:00 p.m. and returned home around 4:00 p.m. Cantrell called, and he
spoke to her briefly but had to stop and eat dinner at around 4:10 p.m. He ate
dinner for about five minutes, and then got on a conference call with his friends
Armstrong, Cartas, Blocton, and Cantrell, and later also spoke to Stacie Sweazer
alone until about 5:00 p.m. Hall then got back on a conference call with
Armstrong and Cartas and spoke with them until about 5:40 p.m., then took a
shower and got ready for the dance.
About 6:00 p.m., Hall got on the phone with his friends again, and talked
“[b]asically until the time we left.” Hall got off the phone at 7:00 p.m. and left for
28
the dance around 7:15 p.m. when John Cartas arrived at Hall’s house to pick him
up. Hall acknowledged his testimony was different from his prior sworn testimony
that he began eating and talking on the phone at 3:30 p.m. and that his mother was
home when he got home with his sisters, but Hall said his present testimony was
accurate. Hall stated that he told Officers Major and Grant that he did not
understand his rights after they were read to him, but admitted that during the taped
confession, Hall stated he understood his rights. Hall testified that, after they left
the interview session to search for the guns, Officer Grant hit Hall in the mouth
with a flashlight “about one time,” which Hall acknowledged contradicted a
previous sworn statement in which Hall claimed that Grant hit him “about four or
five times.” Hall claimed the previous statement must have been misheard or
mistyped.
6. Joseph Grady
Joseph Grady testified that prior to the trial, he did not know Darryl Hall and
had never seen him before. Grady did know Leak, however. Grady had formerly
been affiliated with the Folk Nation gang known as the Disciples and had a high-
ranking position in the gang. Leak had told Grady at one point that Leak was also
affiliated with the Folk gang named Disciples. On October 15, 1999, the day of the
crimes at the Little People’s Workshop, Grady saw Leak at school and had a
29
conversation with Leak. Grady told Leak that he was living in a group home and
was planning to be at the mall that night. Grady never heard Hall’s name in
connection with any gang.
7. Reginald Powell
Reginald Powell testified that he knew Hall and grew up with him. Powell
was questioned by two detectives about the crimes at the Little People’s
Workshop. Powell did not know anything about the incident and told the
detectives he did not give Hall any guns.
8. Seven Defense Alibi Witnesses
The defense then called seven alibi witnesses: John Cartas, Ann Cartas,
Dwayne Hall, Quinton Armstrong, Jarvis Blocton, LaQuanda Hall, and Bonnie
Hall.
John Cartas testified that on the afternoon of October 15, 1999, he came
home at around 3:00 p.m. After he came home, he immediately called Hall, and
someone at Hall’s house told Cartas that Hall was busy. Cartas called back about
15 to 20 minutes later and spoke to Hall for about ten or 15 minutes. Around 20 to
30 minutes later, around 4:00 p.m., Cartas got on a conference call with Hall and
another friend, either Armstrong or Cantrell, which lasted for around 20 to 40
minutes.
30
Around 5:00 p.m., Cartas called Hall and spoke to him for about five to ten
minutes. Hall again called Cartas around 5:30 p.m., and they spoke for about 20
minutes.17 Cartas testified he again spoke to Hall by phone one last time before
Cartas arrived at Hall’s house at around 6:40 p.m. Cartas testified that when he
found out what had happened at the Little People’s Workshop and that Hall was a
suspect, “I was just shocked, you know what I’m saying, because I know he
couldn’t have done it because he was with us. . . . And we was on the phone with
him.” Cartas attempted to make a statement to Officer Major after he heard about
the crime, but Officer Major threatened to arrest him for lying.
When asked whether he knew anything about a group called “mob one,”
John Cartas testified that he and Hall, along with Quentin Armstrong, Jarvis
Blocton, and Sunkeissa Cantrell, had formed a rap group called “mob boys.” The
only activities the group engaged in were playing video games and rapping.
Ann Cartas, Cartas’s mother, testified that as soon as her son John Cartas got
home that afternoon, a little after 3:00 p.m., he got on the phone with Hall and
others. Ann Cartas testified she picked up the phone and listened in on her son’s
conversation “at least three” times – at around 3:40, 4:10, and 4:40. The first time,
Ann Cartas heard only her son and Armstrong talking, but the second and third
17
The telephone line on which Cartas called Hall (334-281-1870) was registered in his
mother’s name (Ann Cartas).
31
times, Cartas was on the phone with Hall. Ann Cartas “probably” picked up the
phone at 5:10 p.m., but she could not remember whom she heard. As far as she
knew, her son was on the phone nearly constantly from 3:15 p.m. until 6:00 p.m.,
but she was not listening on the phone the entire time. Ann Cartas picked up Hall
to go to the dance at around 6:40 p.m. Ann Cartas also confirmed that her son and
Hall had a “rap group” which had different names. They used a karaoke machine,
and “all the kids used to come join in.”
Quinton Armstrong testified that he was on the phone with Hall on the
evening of October 15, 1999.18 Armstrong called Hall and began speaking to him
around 3:15 p.m. Hall said he had to go, and Armstrong called Hall again at
around 4:00 p.m. and spoke for approximately five minutes. Hall called
Armstrong around 4:30 p.m. Armstrong testified that “mob boys” referred to a rap
group which included himself, Blocton, and Hall.
Jarvis Blocton testified that he was on the phone with Hall on the evening of
October 15, 1999. Blocton called Hall sometime after Blocton arrived home from
school at 3:50 p.m., and no one answered. He tried again later, and Hall answered.
Blocton did not remember what exact time he spoke to Hall. Blocton went to work
that night and arrived at approximately 5:30 p.m. Blocton also testified that the
18
The phone number at Armstrong’s home (334- 284-3947) is registered in the name of
his stepfather, Charles Hutchinson.
32
group known as “mob” was a rap group that included himself, Cartas, Armstrong,
and Hall.
Dwayne Hall, Hall’s brother, testified that on the evening of October 15,
1999, he joined Hall and his sisters after Hall picked the sisters up from school,
and they all walked home together. Dwayne Hall did not see defendant Darryl Hall
talk to anyone on the way home from their sisters’ school, including Sunkeissa
Cantrell. Dwayne Hall and Darryl Hall were at home from 3:36 p.m. until 6:40
p.m., when Dwayne Hall left to go to a football game. Dwayne Hall testified that
their mother was already home and already had food prepared on the table when
they came home. Dwayne Hall ate dinner at the table with Hall, and their mother
ate in her room. Defendant Darryl Hall was on the phone during the afternoon, but
Dwayne Hall did not know who he was talking to.
Hall’s sister LaQuanda Hall testified that, after arriving at their bus stop after
school, she and Hall went home and then left again to pick up their two little sisters
from school and then walked back home with their sisters and Sunkeissa Cantrell.
Along the way, Cantrell left them to go home, and LaQuanda and her siblings
continued to walk until they met their older brother Dwayne Hall. Their mother
got home just after they arrived, and the food was not yet prepared. LaQuanda
testified that Hall did not leave the house again until 7:20, when he left for the
33
dance with John Cartas and Ann Cartas.
Bonnie Hall, Hall’s mother, testified that on October 15, 1999, she came
home around 4:00 p.m. and prepared dinner for her children. She ate dinner alone
in her bedroom. Hall remained at the house from the time she got home until he
left for the dance at 7:15 p.m. or 7:20 p.m. Hall was on the phone in his room.
9. Curtis Hall
Hall’s father, Curtis Hall, testified regarding Hall’s arrest and the ensuing
police search conducted in the house and backyard. Curtis Hall testified that his
son was not involved with gangs and that he had perfect school attendance. Hall
had only one discipline problem at school when Hall was “running off at the
mouth.”
10. State’s Rebuttal
In rebuttal, the State called Officers Grant and Major. Officer Grant denied
striking Hall or kicking his chair. Officer Major testified that during Hall’s
questioning, Hall never stated he was on the phone with anyone at the time the
crimes occurred. Hall initially said he did not do it, and then later he confessed.
Officer Major did not believe Hall’s alibi because after Hall had confessed and was
leading the officers to search for the guns later that same evening, the police and
Hall went by Hall’s house and Hall’s mother “ran to [the police car in which Hall
34
was sitting] and said don’t say anything else[,] you was on the telephone. Then
John [Cartas] came in a couple of days later telling us that he was on the phone
with [Hall]. . . And [Cartas] told me that [Hall]’s parents told him to come down
there.” Officer Major denied reading Leak’s statement to Hall before Hall
confessed and said Leak’s statement had not even been transcribed yet at that time.
Officer Major denied threatening Hall.
The State also called Charles Chambers, a records custodian for BellSouth.
Chambers testified that his department handles subpoenas for records from
BellSouth. Chambers testified that “incoming call[] daily information” is kept for
about 60 days, while outgoing call information is kept “longer than that,
somewhere in the range of eighteen months or so,” for “billing purposes” in case of
discrepancies and complaints. Chambers made no distinction between records kept
for local calls and records kept for long distance calls.19
Chambers testified that BellSouth received several subpoenas for call
records in connection with Hall’s trial. First, BellSouth was subpoenaed on May 9,
2000 for the records in reference to Bonnie Hall’s telephone account (334-284-
19
As we note later in this opinion, it was later revealed that neither Spidle’s testimony
during the second trial nor Chambers’ testimony during the third trial was factually accurate as
to the retention period for records of local outgoing calls. In fact, for regular, “non-measured”
customers, BellSouth retained records of outgoing local call records for only 60 days, not 18
months as Chambers and Spidle testified at trial.
35
1968). The subpoena “requested information on incoming and outgoing calls” on
October 15, 1999. Chambers testified that he could not say whether there were
incoming calls to the account on October 15, 1999, because at the time the
subpoena was received there were no longer any records of those calls. Chambers
testified that as for outgoing calls, “[b]ased upon our records, there were no
outgoing calls found” between 4:00 p.m. and 6:00 p.m. on October 15, 1999 from
the Hall residence and, therefore, there were no calls between 4:00 p.m. and 6:00
p.m. from Hall to Ann Cartas’s line or Charles Hutchinson’s line.
Chambers testified that BellSouth also received a subpoena “for all phone
records including incoming and outgoing [calls]” for Ann Cartas’ account (334-
281-1870) on October 15, 1999. Chambers again testified there were no records
available of incoming calls for that date. Chambers testified that there were no
outgoing calls from the Cartas home on the 15th:
Q. Let’s talk about the outgoing calls from the Cartas home on the
15th. Was there an outgoing call for 281-1870 between the
hours of four p.m. and six p.m.?
A. No.
Q. There was no phone call from the Cartas home to the telephone
number of Darryl Hall 284-1968 between four and six p.m.; is
that correct?
A. That is correct.
Chambers also testified as to BellSouth’s response to a subpoena for records
in connection with the account of Charles Hutchinson, at the home of Quinton
36
Armstrong. That subpoena requested “[a]ny and all phone records including
incoming and outgoing calls to phone number 334-284-3947 on the date of 10-15-
99.” Chambers testified that as to Hutchinson’s account, there were “some . . .
outgoing calls on October 15th,” but there were no outgoing calls from
Hutchinson’s home to Hall’s home. Chambers testified that, as with the other
accounts, there was no information available as to any incoming calls for the
Hutchinson account.
On cross-examination, Chambers clarified that he was referring to both local
and long distance calls when he said “outgoing calls.” Chambers further testified
that outgoing call records were kept for all customers with any type of service,
even those who are not billed specifically for outgoing calls. On cross-
examination of Chambers, Hall’s trial counsel Smedley pointed out that Chambers
was saying there were no records of any outgoing calls, from any of the multiple
accounts at issue, for the entire day of October 15, 1999:20
Q. So what you’re saying is that for October 15th for an entire day that
no calls were made from each of those residences?
A. No, I am not saying that. I am saying we have no record of those – of
any calls for those days.
Q. But if you have no record for those calls and you say you keep up
with the calls and your letter says that no calls were found for October
20
Chambers later clarified on redirect and cross-examination that there were three
outgoing phone calls shown on Hutchinson’s account for October 15, 1999, all of which were
long distance calls.
37
15th of 1999, are you not saying that nobody made a phone call?
A Are you talking about incoming or outgoing calls?
Q. Either.
A. If the records do not find the information, yes, I would say that
information is not there for that period for that day, yes.
Q. So for a whole day on October 15th of 1999, out of all those
subpoenas that [the State’s attorney] went over with you,
nobody from any of those homes picked up their phone and
made a phone call at all that whole day?
A. Our records show no outgoing calls for those dates.
Q. Okay. Would your records show if numbers had been
disconnected?
A. If the telephone number had been disconnected?
Q. Yes.
A. Yes.
Q. So all of these people would have active service, and nobody
made a call at all? Nobody picked up their phone to call
anyone from twelve o’clock –
...
Q. From twelve o’clock a.m. to – or twelve o’clock midnight,
that’s when October 15 would start, until 11:59 that night,
nobody picked up their phone from any of those residences and
made a phone call? Is that what you’re saying?
A. I am saying that our data shows no outgoing calls were made on
that date, yes.
Q. That’s whether you have measured service or local service or
any kind of service?
A. Yes.
11. Jury’s Verdict
The jury at the third trial found Hall guilty of all charges.21 On March 1,
2001, the state trial court sentenced Hall to concurrent terms of life imprisonment
21
Hall was acquitted during the first trial of rape and sexual abuse charges, so in the
second and third trials he was charged only with the robbery and kidnaping crimes.
38
for the Class A felonies (robbery) and twenty years’ imprisonment on the Class B
felonies (kidnaping).22 On March 8, 2001, Hall appealed. On that same day,
Smedley withdrew as Hall’s counsel.
H. Motion for New Trial
Hall retained Thomas M. Goggans as counsel. On April 2, 2001, Goggans
filed Hall’s motion for acquittal, or, in the alternative, a motion for new trial.23
Hall argued, inter alia, that his confession was not voluntary and that trial counsel
Smedley was ineffective. Hall argued that at his third trial Smedley failed to
present sufficient evidence: (1) in support of Hall’s alibi, such as by failing to call
four alibi witnesses who had testified in Hall’s first trial: Pamela Armstrong,24
Sunkeissa Cantrell,25 Gloria McElroy,26 and Lea Dettmar,27 and (2) of Hall’s good
22
For robbery, Alabama law authorizes a sentence of between 10 years and 99 years or
life. See Ala. Code §§ 13A-5-6(a)(1); 13A-8-41(c). For second-degree kidnaping, Alabama
law authorizes a sentence of not more than 20 years and not less than 2 years. See Ala. Code
§§ 13A-5-6(a)(2), 13A-6-44(c).
23
Since 2001, Goggans has remained Hall’s counsel, including throughout direct appeal
in state court and the federal § 2254 proceedings.
24
According to Pamela Armstrong, her son Quentin Armstrong was on the phone with
Hall and others during the afternoon of October 15, and they made several calls back and forth
up until the time she took her son to the dance at 6:45 p.m. Pamela herself talked with Hall on
the phone that day at approximately 3:15 p.m. or 3:30 p.m.
25
On October 15, 1999, Sunkeissa Cantrell arrived home from school at about 3:00 p.m.
She saw Hall walking on the way back from picking up his sisters at around 3:00 p.m. or 3:10
p.m. Cantrell did not see Hall talk with anyone else while walking. From her cousins’ home,
Cantrell called Hall around 3:20 p.m., and they discussed the dance that night. They were on the
phone for about 20 minutes. Cantrell called Hall again around 4:30, and had a four-way
conversation with Hall, Quinton Armstrong, and John Cartas. Cantrell talked with Hall several
39
character by failing to call three character witnesses who had testified at Hall’s first
trial: Linda Dowe, Gregory Dowe,and Katherine Scott.28
On April 24, 2001, Hall filed an addendum to his motion for new trial
alleging, inter alia, that Chambers’s testimony was incorrect in that BellSouth did
not keep outgoing call records for eighteen months. In fact, Hall argued, BellSouth
maintained outgoing local call records for the accounts for only 60 days after the
date of the calls, and because no subpoena was issued within the 60-day time
period after the calls, BellSouth would have deleted records of all local calls to and
from the involved telephones by the time the records were subpoenaed. Hall
contended that evidence of the falsity of Chambers’s testimony was available from
times that evening. Cantrell and Hall had a rap group called “Mob,” which did not require
anyone to do anything to get into the group other than rap. Cantrell testified that Hall was not in
a gang.
26
Gloria McElroy is Sunkeissa Cantrell’s mother and testified her daughter was on the
phone with Hall off and on from 4:15 p.m. or 4:30 p.m. up until 6:00 p.m. or 6:30 p.m. on
October 15, 1999. Gloria McElroy did not testify that she or her daughter were at their cousins’
home that evening. Gloria McElroy is also referred to in the record as “Gloria McElroy Abdul
Khaliq” or simply “Gloria Khaliq.” For the sake of consistency, we refer to her throughout this
opinion as “Gloria McElroy.”
27
Lea Dettmar is a teacher at Hall’s school, and Hall was in her world history class.
Dettmar testified that Hall was in school on October 15, 1999 and that school starts at 7:45 a.m.
Attendance records in support of her testimony were admitted at the first trial.
28
Linda Dowe and Gregory Dowe testified that they lived in Hall’s neighborhood, they
knew Hall for eight years, Hall had a “good” reputation, and they had never had any problems
with Hall. Katherine Scott testified that she was Hall’s neighbor for four and a half years and
she knew Hall and his parents. Hall and his siblings were a “sweet bunch of children,” and she
taught them Bible stories. Scott never knew Hall to do anything wrong, he had a very good
reputation for truth, and he was a “good child.”
40
BellSouth and “from persons connected to the involved telephones,” but that
Smedley did not present it.
Hall further argued that he lacked the capacity to waive his state juvenile
rights at the time he made the statements to police because “psychological or
psychometric” testimony showed Hall lacked the capacity to resist the pressures
put upon him. His first counsel, Bell, did not have Hall tested or present such
evidence in support of having Hall’s statements suppressed. Hall’s counsel did not
seek to reopen the suppression hearing.29
I. State Court Hearing on Motion for New Trial
On April 25, 2001, the state trial court conducted a hearing on the new trial
motion. At the hearing, Goggans and attorney Elizabeth Addison represented Hall.
Linda Taffett, an education expert, testified that she administered academic testing
to Hall approximately a week prior to the hearing. Hall was seventeen years and
five months old at that time.
According to Taffett, Hall had a “very difficult time following instructions.”
When he read independently, his reading comprehension was at the third grade,
fifth month level. Reading with Taffett, his reading comprehension level was at
the fourth grade, second month level. Hall scored at the lowest level possible on a
29
For this claim, Hall does not specify whether he is referring to Smedley, Bell, or both.
41
picture vocabulary test, and his learning ability was at the level of an eight-year-
and-seven-month-old child in the fourth grade. On an oral reading test, his reading
rate was at the fifth grade, first month level, and his accuracy rate was at the fifth
grade, fifth month level. Taffett opined that Hall did not have the intellectual
ability to “mastermind or be the leader of any type of crime or to even orchestrate
this type of crime, any crime.”
Smedley, Hall’s trial counsel, also testified. Smedley did not feel that she
had enough experience to handle Hall’s case.30 Prior to trial, Smedley did not
interview Chambers, Pamela Armstrong, or Gloria McElroy. Smedley believed
that Ms. Cantrell had moved and she “didn’t have the opportunity to find her.”
During the third trial, Smedley put on all the witnesses she thought would help
support her theory of the case, and she made those decisions based on her theory of
the case and her discussions with Hall, his family, and the witnesses.
Vickie Price, one of Hall’s teachers, testified that she never had any
“serious” problems with Hall, that he was not in a gang, and that he did not have
any “leadership qualities.” Another witness, Tyrone Anderson, a probation officer
with the Montgomery Youth Facility, worked with Hall in a “predispositional”
30
At the time Smedley represented Hall, she had been practicing law for four years. Prior
to her representation of Hall, she had tried two to three criminal trials involving theft of property,
but no trials involving “major” crimes such as rape, kidnaping, or robbery.
42
capacity after Hall was arrested and prior to his trial. In gathering information for
a predisposition report, Anderson talked to people in the community and at Hall’s
school. Anderson ultimately recommended to the juvenile court that Hall be
allowed to go home because he was not a threat to anyone.
Three alibi witnesses from the first trial, Gloria McElroy, Sunkeissa
Cantrell, and Pamela Armstrong, testified that they would have given the same
testimony in the third trial that they gave in the first trial if they had been called to
testify.
A juror from the third trial, Letricia Long, testified that there was “quite a lot
of confusion” during deliberations about the evidence of telephone calls. Long
testified that the evidence at trial “made it look like it wasn’t any phone calls going
out or coming in” on the day of the crime, implying that Hall was guilty.
However, the juror also testified that “nobody actually believed” Chambers’s
testimony because he said there were not any incoming or outgoing calls at all that
day:
It was quite a lot of confusion about it, because it wasn’t any
incoming or outgoing calls, and it was a major issue in different
homes with teenagers and that there weren’t any phone calls made,
and nobody actually believed it.
Later, on cross-examination, the juror testified that the majority of jurors did not
believe the testimony of Chambers, but still found Hall guilty.
43
Kathleen Mahoney, the BellSouth supervisor of subpoena compliance at the
BellSouth Subpoena Compliance Center, testified by telephone. Mahoney testified
that in October of 1999, for a regular “non-measured service customer,”31 outgoing
long-distance calls would be billed to the customer and would appear on their bill,
but records of incoming and outgoing local calls would be kept for only 60 days.
After 60 days, the records of all of the local calls would be erased. Mahoney
explained, “We do not keep local calls because there is no billing on them for a
regular non-measured customer.” However, Mahoney testified that if a customer
has local “measured” service and also asks to have their local measured service
calls printed on their telephone bills, the records of incoming and outgoing local
calls are kept for 18 months. Curtis Hall and Anne Cartas both testified that on the
day of the crimes, they had only basic telephone service rather than “measured”
service.
Hall also filed a copy of one of the subpoenas served on BellSouth for phone
records and BellSouth’s response. The subpoena was issued May 10, 2000. The
subpoena requested the production of the following documents:
Any and all phone records, including incoming and outgoing calls for
phone number (334) 281-1870 on the date of 10/15/99. The account
31
Mahoney testified that “non-measured service” is a “special billing plan that . . .
customers can subscribe to. . . . The bill is sent on the usage of the customer.”
44
holder’s name is Anne Cartas of 360 Eagerton Rd., Montgomery, AL
36116.
In response to the subpoena, the BellSouth Compliance Assistant, Patricia Tapp,
returned an affidavit dated May 16, 2000 stating, “No records as described in the
legal document are available” and signed a letter to the Circuit Court of
Montgomery County, also dated May 16, 2000, stating in part:
There were no calls found for the date that you provided. Incoming
calls are only available for approximately sixty days prior to the
current date. There were no outgoing calls found.
BellSouth also submitted Chambers’s and Spidle’s affidavits, in which they
stated it was their understanding at the time they testified at trial that BellSouth
kept local outgoing call information for the subject accounts for a period of
eighteen months. Both Chambers and Spidle had since learned that, in fact,
records of outgoing local calls in connection with the involved accounts were kept
for a period of only 60 days. BellSouth also submitted the affidavit of James L.
Preau, the Director of Security at BellSouth. Preau reviewed the five subpoenas
served upon BellSouth for Hall’s trial and concluded that the accounts for which
the subpoenas sought records were all “flat rate” accounts, meaning that the
customers had not elected “measured” service and that there would have been no
data on local incoming or outgoing calls at BellSouth when BellSouth received the
subpoenas in June and July of 2000, before the second trial began in November of
45
2000.
J. State Court’s Order Denying Motion For New Trial
The state trial court denied Hall’s motion for a new trial. In its order, the
state court acknowledged that Taffett’s tests revealed that Hall was in the “low
intelligence segment of the population.” As to Hall’s challenge to his confession,
the state court stated that it had already considered Hall’s intelligence and age in its
ruling on Hall’s motion to suppress and at trial and that this did not render his
confession inadmissible:
Matters of the defendant’s intelligence and age were considered fully
at the hearing on the motion to suppress and throughout each of the
trials. While an accused’s intelligence and literacy are important
factors to be considered in determining whether he intelligently and
voluntarily waived his constitutional rights and made a confession,
weak intellect or illiteracy alone will not render a confession
inadmissible.
As to the ineffective-trial-counsel claim, the state trial court found that
Dettmar’s testimony as to Hall’s alibi defense of being in school would have been
cumulative of other evidence presented at trial, including the admission of school
records showing attendance, and that it would not have been pertinent given that
the crimes occurred after school hours. The state trial court further found that
additional alibi witnesses would have been cumulative of the evidence presented at
trial through the alibi witnesses “Daryl [sic] Hall . . . , John Cartas, Ann Cartas,
46
Jarvis Blockton [sic], and Quinton Armstrong.”32 The state trial court dismissed
the remaining claims of ineffective assistance that were based in Smedley’s lack of
experience, being overworked, and lack of time.
The state trial court acknowledged Hall’s argument that the jury was left
with a false impression regarding the existence of phone records at BellSouth for
the day of the crimes and that the two BellSouth witnesses who testified at Hall’s
second and third trials had since filed affidavits stating that their trial testimony
was in error. Quoting the trial transcript, the state court stated, “testimony from the
trial did not indicate there were no calls, but [rather that] ‘we have no record of
those--any calls for those days’” (emphasis added). Furthermore, the state court
found that the juror who testified at the hearing made it clear that the jury had
ignored the evidence of the phone records during its deliberations. Therefore,
Hall’s claim that the BellSouth evidence left a false impression with the jury was
moot.
The state trial court found that the other grounds on which Hall had sought a
32
In referring to “Daryl Hall,” it appears that the state trial court was referring to Dwayne
Hall, the defendant’s brother, who testified at trial that he and Hall walked home from school
together on the day of the crimes. In addition to the alibi witnesses named in the trial court’s
order, Bonnie Hall and LaQuanda Hall testified at trial as to Hall’s alleged whereabouts on the
day of the crimes.
Reginald Powell did not testify as an alibi witness despite being named as one by the
state trial court.
47
new trial were meritless.
K. Direct Appeal: Alabama Court of Criminal Appeals
Hall appealed his convictions to the Alabama Court of Criminal Appeals,
which affirmed. Hall v. State of Alabama, No. CR-00-1180, slip op. (Ala. Crim.
App. Oct. 18, 2002) (unpublished).33 The Alabama appeals court addressed three
issues: (1) whether Hall was due a new trial due to Chambers’s false testimony, (2)
whether the trial court erred in denying his motion to suppress, and (3) whether
Hall received ineffective trial counsel.
As to Chambers’s false testimony, the Alabama appeals court noted that the
record was silent as to whether the error in Chambers’s phone record testimony
could have been discovered before or during the second and third trials by the
exercise of due diligence. The Alabama appeals court also observed that the trial
court had made an “implicit finding that there was not a ‘significant chance’ that
had the jury heard the correct information, it would have reached a different
result,” and that, based upon the record, the Alabama appeals court could not
conclude that this finding was clearly erroneous. Id. at 4-5.
Second, the Alabama appeals court concluded that the trial court did not err
33
The Alabama criminal appeals court denied Hall’s motion for rehearing on November
15, 2002.
48
in denying Hall’s motion to suppress his confession, as the record indicated that
Hall admitted he received both his state juvenile warnings and his adult Miranda
warnings, understood all of his rights, waived his rights, and spoke with the
officers. The appeals court noted that Hall testified that he had asked for his
father’s presence prior to making his statement, but the officers testified that he had
not. The appeals court stated, “[t]he evidence offered by the appellant conflicted
with that offered by the State and, therefore, created a question of fact for the trial
court. It is well settled that the trial court’s finding of voluntariness of a confession
need only be supported by a preponderance of the evidence[,] and will not be
disturbed on appeal unless found to be manifestly contrary to the great weight of
the evidence.” Id. at 7 (citations and quotation marks omitted).
Finally, the Alabama appeals court recounted the findings of the trial court
as to Hall’s claims of ineffective trial counsel and concluded, without discussion,
that these claims did not require reversal under the standard set out in Strickland v.
Washington, 466 U.S. 668, 693-94, 104 S. Ct. 2052, 2067-68 (1984).
L. Direct Appeal: Alabama Supreme Court
The Supreme Court of Alabama granted Hall’s petition for a writ of
certiorari in part and affirmed the judgment of the Alabama appeals court. Ex
parte Hall, 863 So.2d 1079, 1081 (Ala. 2003). The Alabama Supreme Court
49
reviewed two issues: (1) whether the trial court’s denial of Hall’s motion for
acquittal or new trial, which was based on claims of perjured testimony and
ineffective trial counsel, was proper; and (2) whether Hall’s confession was
voluntary and properly admitted into evidence. Id. As to the false testimony of
Chambers, the Alabama Supreme Court, applying Ex parte Frazier, 562 So.2d 560
(Ala. 1990),34 agreed with the trial court’s ruling that the outcome of the trial
would not have been different had the jury heard the correct facts regarding the
telephone records. Id. at 1083. The Alabama Supreme Court also concluded that
Hall failed to exercise “due diligence” in discovering the falsity of the BellSouth
testimony, given that “Hall had every opportunity to evaluate Chambers’s
testimony before the start of the third trial. . . .” Id. Under Ex parte Frazier, the
exercise of due diligence is an element of the test for whether a new trial should be
granted due to perjured testimony. 562 So.2d at 569-70.
As to Hall’s ineffective trial counsel claim, the Alabama Supreme Court
granted Hall’s certiorari petition only as to whether a defendant not entitled to a
34
In Ex parte Frazier, the Alabama Supreme Court adopted the standard to be used in
non-death-penalty cases where perjured testimony is the basis for a motion for new trial. In such
cases, a new trial should be granted only where the trial court is “reasonably well satisfied 1) that
testimony given by a witness at trial was false; 2) that there is a significant chance that had the
jury heard the truth, it would have reached a different result; 3) that the evidence tending to
prove the witness’s perjury has been discovered since the trial; and 4) that that evidence could
not have been discovered before or during trial by the exercise of due diligence.” 562 So.2d at
569-70.
50
new trial under Frazier—because his trial counsel failed to exercise due diligence
in finding false testimony—is entitled to a new trial because trial counsel was
ineffective. The Alabama Supreme Court concluded that even if Smedley’s failure
to discover the falsity of Chambers’s testimony was error, the second prong of the
Strickland test35 was not satisfied because the court already had concluded that,
under Frazier, there was not a significant chance that the jury would have reached a
different result had it heard the truth. Id. at 1084-85. The Alabama Supreme Court
made no ruling, therefore, on whether Smedley’s failure to exercise due diligence
in discovering the falsity of Chambers’s testimony amounted to ineffective
assistance. Nor did it rule on Hall’s other claims of ineffective assistance, as it did
not grant certiorari as to those claims.
As for Hall’s claim that his confession was involuntary, the Alabama
Supreme Court: (1) observed that Hall and the State presented conflicting evidence
as to whether Hall had asked for his father to be present prior to being questioned,
creating a question of fact for the trial court to resolve, and (2) found no reason to
hold that the trial court’s determination that the confession was voluntary was
35
In Strickland, the Supreme Court held that a defendant complaining of ineffective
assistance of counsel must satisfy two requirements. First, “the defendant must show that
counsel’s representation fell below an objective standard of reasonableness.” 466 U.S. at 688,
104 S. Ct. at 2064. Second, “[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694, 104 S. Ct. at 2068.
51
contrary to the weight of the evidence. Id. at 1087.36
M. Federal Section 2254 Petition
On March 30, 2004, Hall filed a petition for habeas corpus under 28 U.S.C.
§ 2254 in federal district court. Hall’s petition claimed that (1) his confession was
involuntary and in violation of Miranda, and (2) he received ineffective trial
counsel.37
As for his ineffective trial counsel claim, Hall argued that Smedley (1) was
not experienced enough to handle Hall’s case, (2) did not request funding for an
expert or investigator, (3) did not interview anyone with BellSouth regarding the
records of outgoing calls, (4) did not present character witnesses, (5) failed to call
Pamela Armstrong, Sunkeissa Cantrell, and Gloria McElroy as alibi witnesses, and
(6) presented no evidence of Hall’s “mental status,” specifically Taffett’s opinions
that Hall lacked the intellectual ability to mastermind or orchestrate any type of
crime.
The magistrate judge’s report recommended denial of the § 2254 petition as
to both Hall’s ineffective counsel claim and his involuntary confession claim
36
Hall did not seek state post-conviction relief.
37
On appeal, Hall does not challenge his life sentence or assert an Eighth Amendment
claim that this sentence is unconstitutional “cruel and unusual punishment.” Hall’s sentence is
subject to parole, which may explain why he does not raise an Eighth Amendment challenge.
52
because the Alabama Supreme Court’s decision affirming the trial court judgment
was not contrary to or an unreasonable application of federal law, nor was it an
unreasonable determination of the facts. Overruling Hall’s objections, the district
court adopted the magistrate judge’s report and denied Hall’s § 2254 petition. The
district court granted Hall a certificate of appealability (“COA”) on (1) his
involuntary confession claim and (2) his ineffective trial counsel claim.
II. STANDARD OF REVIEW
Pursuant to § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief to a
state prisoner
unless a state court’s adjudication of a claim “resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States,” or the relevant state-court decision “was based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”
Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007) (quoting 28
U.S.C. § 2254(d)(1), (d)(2)) (citations omitted). “The question under AEDPA is
not whether a federal court believes the state court’s determination was incorrect
but whether that determination was unreasonable – a substantially higher
threshold.” Id.
“We review de novo the district court’s decision about whether the state
53
court acted contrary to clearly established federal law, unreasonably applied
federal law, or made an unreasonable determination of fact.” Smith v. Sec’y, Dep’t
of Corr., 572 F.3d 1327, 1332 (11th Cir. 2009). Thus, under AEDPA we review
the district court’s denial of Hall’s § 2254 petition de novo, but we “owe deference
to the final state habeas judgment.” Peterka v. McNeil, 532 F.3d 1199, 1200 (11th
Cir. 2008), cert. denied, 129 S. Ct. 1039 (2009).
III. HALL’S MIRANDA WAIVER AND CONFESSION
Hall argues that his waiver and confession were not knowing and voluntary
and should have been suppressed. We first review the general principles governing
Miranda warnings in the juvenile context and then Hall’s confession claims.
Under Miranda, “the State must warn the accused prior to such questioning
of his right to remain silent and of his right to have counsel, retained or appointed,
present during interrogation.” Fare v. Michael C., 442 U.S. 707, 717, 99 S. Ct.
2560, 2568 (1979) (juvenile case) (citing Miranda v. Arizona, 384 U.S. 436, 473,
86 S. Ct. 1602, 1627 (1966)). If a defendant unambiguously requests for counsel
or to remain silent, police must cease interrogation. Berghuis v. Thompkins, – S.
Ct. –, No. 08-1470, 2010 WL 2160784, at *8-9 (Jun. 1, 2010) (concluding
defendant’s silence during two-hour-and-45-minute interrogation did not invoke
right to remain silent or right to counsel because defendant must make “an
54
unambiguous” request to invoke his Miranda rights); Davis v. United States, 512
U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994) (concluding if accused makes a
statement concerning right to counsel “that is ambiguous or equivocal” or makes
no statement, the police are not required to end the interrogation).
The government cannot introduce a suspect’s statement taken without the
presence of an attorney without first showing that the suspect made a voluntary,
knowing, and intelligent waiver of his Miranda rights. Hart v. Att’y Gen. of
Florida, 323 F.3d 884, 891 (11th Cir. 2003) (citing Miranda, 384 U.S. at 475, 86 S.
Ct. at 1628). The government bears a “heavy burden” to demonstrate that the
waiver was voluntary, knowing and intelligent. Id. The Supreme Court has “stated
that this ‘heavy burden’ is not more than the burden to establish waiver by a
preponderance of the evidence.” Thompkins, 2010 WL 2160784, at *10 (quoting
Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 522 (1986)). The
prosecution “does not need to show that a waiver of Miranda rights was express,”
and “an implicit waiver” of the Miranda rights is sufficient. Thompkins, 2010 WL
2160784, at *10; accord North Carolina v. Butler, 441 U.S. 369, 373, 375-76, 99 S.
Ct. 1755, 1758-59 (1979).
The inquiry into whether a waiver was voluntary, knowing, and intelligent is
twofold, or, stated another way, “has two distinct dimensions.” Moran v. Burbine,
55
475 U.S. 412, 421, 106 S. Ct. 1135, 1141 (1986). First, the waiver must be
“voluntary in the sense that it was the product of a free and deliberate choice rather
than intimidation, coercion, or deception.” Id.; accord Hart, 323 F.3d at 892
(quoting Burbine, 475 U.S. at 421, 106 S. Ct. at 1141). Second, the waiver must be
“made with a full awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.” Hart, 323 F.3d at 892 (quoting
Burbine, 475 U.S. at 421, 106 S. Ct. at 1141). Even if a defendant’s statement is
voluntary and not coerced, the “prosecution must make the additional showing that
the accused understood these [Miranda] rights.” Thompkins, 2010 WL 2160784,
at *11; see Burbine, 475 U.S. at 421-22, 106 S. Ct. 1141.
The Supreme Court utilizes a totality-of-the-circumstances approach to
ascertain whether a juvenile’s waiver of Miranda rights and confession were
voluntary, knowing, and intelligent. See Fare, 442 U.S. at 725, 99 S. Ct. at 2572
(stating “[t]he totality approach permits–indeed, it mandates–inquiry into all the
circumstances surrounding the interrogation”). The “totality approach” includes
“evaluation of the juvenile’s age, experience, education, background, and
intelligence, and into whether he has the capacity to understand the warnings given
him, the nature of his Fifth Amendment rights, and the consequences of waiving
those rights.” Id.; accord Coleman v. Singletary, 30 F.3d 1420, 1426 (11th Cir.
56
1994).
The Supreme Court has warned that “admissions and confessions of
juveniles require special caution.” In re Gault, 387 U.S. 1, 45, 87 S. Ct. 1428,
1453 (1967). In cases where a juvenile is involved, “[i]f counsel was not present
for some permissible reason when an admission was obtained, the greatest care
must be taken to assure that the admission was voluntary, in the sense not only that
it was not coerced or suggested, but also that it was not the product of ignorance of
rights or of adolescent fantasy, fright or despair.” Id. at 55, 87 S. Ct. at 1458.
“[W]hen . . . a mere child – an easy victim of the law – is before us, special care in
scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy
of any race. He cannot be judged by the more exacting standards of maturity.”
Haley v. Ohio, 332 U.S. 596, 599, 68 S. Ct. 302, 303-304 (1948).
The Supreme Court has held waivers and confessions involuntary where a
young defendant was isolated or interrogated intensely for long periods of time or
overnight without the presence of a guardian or counsel. In Haley, for example,
the Supreme Court concluded that where a 15-year-old boy was questioned “hour
after hour” without the presence of a friend or an attorney for five hours, in the
“dead of night” from midnight to 5 a.m., by five or six police officers acting in
relay teams of one or two each, his confession was involuntary. Haley, 332 U.S. at
57
598-601, 68 S. Ct. at 303-304.
Similarly, the Supreme Court has held that the written confession of a 14-
year-old defendant was inadmissible where the written confession was obtained
after the defendant “had been held for five days during which time he saw no
lawyer, parent or other friendly adult,” even though there was no evidence of
prolonged questioning by officers. Gallegos v. Colorado, 370 U.S. 49, 50, 53-54,
82 S. Ct. 1209, 1210, 1212 (1962). In Gallegos, the Supreme Court cited these
factors in concluding the 14-year-old’s confession was involuntary: “[t]he youth of
the petitioner, the long detention, the failure to send for his parents, the failure
immediately to bring him before the judge of the Juvenile Court, [and] the failure
to see to it that he had the advice of a lawyer or friend . . . .” Id. at 55, 82 S. Ct. at
1213.
On the other hand, the Supreme Court has held a juvenile’s waiver and
confession were knowing and voluntary where the circumstances indicate that the
juvenile fully understood his rights and was not coerced into waiving them or
making a confession by long periods of interrogation or other pressure tactics. In
Fare, for instance, the Supreme Court held that a 16-and-1/2-year-old defendant
voluntarily and knowingly waived his Fifth Amendment rights despite the fact that
he requested to see his probation officer during questioning. 442 U.S. at 726, 99 S.
58
Ct. at 2572. The officers explained his Miranda rights to him and there was no
indication at that time that he did not understand them. Id. After his request to see
his probation officer was denied and after the Fare juvenile defendant was
informed of his rights a second time, he agreed to waive his rights and continue the
interrogation. Id. The Supreme Court noted that the defendant had “considerable
experience with the police,” several arrests, and had been on probation for several
years. Id. at 726-27, 99 S. Ct. at 2572-73. The defendant “was not worn down by
improper interrogation tactics or lengthy questioning or by trickery or deceit.” Id.
Similarly, this Court has held that a 17-year-old defendant’s confession was
knowing and voluntary where the defendant “had a substantial history of
involvement in the Juvenile Justice System and, in fact, was a run-away from a
state facility.” United States v. Kerr, 120 F.3d 239, 241 (11th Cir. 1997). In Kerr,
the defendant was read his state juvenile rights from a juvenile waiver of rights
form, read the form himself, and then signed it before confessing to the crime. Id.
at 241-42. Another officer then gave the defendant his adult Miranda warnings
before recording the defendant’s statement. Id. at 241. The defendant never asked
for an attorney or a guardian and did not allege that he was mistreated or coerced
59
into making a confession.38 Id. at 242.
In addition, in Paxton v. Jarvis, 735 F.2d 1306, 1308-10 (11th Cir. 1984),
this Court concluded that the juvenile defendant’s confession was knowing and
voluntary where he was one month shy of his sixteenth birthday, was questioned
from 8:30 p.m. until 4:30 a.m., and was told of the charges against him, and was
twice given Miranda warnings. Id. at 1308-09. The defendant’s mother was
present until 12:30 a.m., during which time the defendant admitted breaking into
the victim’s home with two other boys but denied raping and murdering the victim
and stated he left the home before any harm was done. The defendant’s mother
then left the police station at 12:30 a.m.; the officers continued the questioning,
and, at 4:27 a.m., the defendant signed a statement incriminating himself in the
rape and murder. Although the defendant and his mother claimed the police had
not read all of the Miranda rights, had yelled at the defendant, threatened physical
38
In Kerr, the defendant specifically argued, inter alia, that his confessions should be
suppressed under 18 U.S.C. § 5033. Kerr, 120 F.3d at 241. Section 5033 requires that,
whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting
officer advise the juvenile of his rights and notify the parents, guardian, or custodian of the
juvenile that the juvenile is in custody, the rights of the juvenile and the nature of the alleged
offense. 18 U.S.C. § 5033. We stated in Kerr that “[w]hile § 5033 requires urgency in the
notification of a parent or guardian, there is no requirement that a parent be present in order for a
juvenile’s statement to be admissible.” 120 F.3d at 241 (emphasis added). We then analyzed the
voluntariness of the defendant’s confession based on the totality of the circumstances, finding it
admissible. Id. at 241-42.
Hall raised no argument in his § 2254 petition or on appeal that 18 U.S.C. § 5033 applies
to his case.
60
harm to the defendant, had beat him, and had tried to intimidate him by alluding to
the electric chair, the police denied all of these allegations in a hearing before the
state trial court. Id. at 1309. In his § 2254 petition, the defendant claimed his
confession to the rape and murder was involuntary. This Court affirmed the
district court’s denial of the defendant’s § 2254 petition, noting the entire record
was before the state court which found defendant’s confessions were voluntary and
the record amply supported that finding. Id. at 1309-10. In affirming, this Court
found significant that the defendant was almost sixteen years old, he had “ample
contact” with family members at the station, he was told of the charges and given
Miranda warnings and “the questioning, although extending over most of the night,
was neither continuous nor conducted by use of threats or beatings.” Id. at 1310.
Even where a juvenile defendant has a lower-than-average intelligence or
reading level, his waiver and confession may still be knowing, intelligent, and
voluntary if the totality of the circumstances indicate that he understood his rights
when he waived them. See Henyard v. McDonough, 459 F.3d 1217, 1241 (11th
Cir. 2006). In Henyard, this Court concluded that an 18-year-old defendant’s
confession was voluntary and the defendant understood his rights where: (1) the
police explained his rights to him twice, and he waived them twice, (2) his
intelligence, “although below average, was not so low that he could not understand
61
his rights,” (3) the transcript of the interrogation revealed no indication that
defendant was confused or misunderstood the seriousness of the interrogation, (4)
the police did not engage in any trickery, deception, or improper interrogation
tactics, and (5) the defendant had previous experience with the justice system.
Henyard, 459 F.3d at 1241.
Likewise, in Rogers v. Quarterman, 555 F.3d 483 (5th Cir.), cert. denied,
130 S. Ct. 365 (2009), the Fifth Circuit concluded that a 15-year-old’s confession
was knowing and voluntary where he was read his Miranda rights twice, and both
times confirmed that he understood those rights. Id. at 485, 494-95. He was not
subjected to any physical abuse or trickery. Id. at 495. The Fifth Circuit noted that
the petitioner could read only at a third or fourth grade level and was a “slow
learner” with a low IQ. Id. at 493. But the court also noted (1) the petitioner “was
in the eighth grade passing all his classes” and “was not mentally retarded,” (2) the
magistrate judge who took his statement testified that the petitioner read it aloud
and read it well, and (3) the petitioner was alert, well-oriented, and able to
communicate ideas without difficulty. Id. Although the 15-year-old petitioner in
Rogers had no prior experience with the criminal justice system and functioned at
an intellectually younger age, the Fifth Circuit also noted that he “was not
continuously or lengthily interrogated, [] was detained for a period of hours rather
62
than days . . . [,] was continuously apprised of his rights, and while he may have
functioned at a younger age intellectually, the record indicated he understood those
rights.” Id. at 495.
We now apply these principles to Hall’s case.
IV. HALL’S CONFESSION
The totality of the circumstances here indicates that Hall’s waiver of his
Miranda rights and his subsequent confession were knowing, intelligent, and
voluntary. As in Henyard and Rogers, the officers continually read Hall his state
juvenile rights (twice) and his adult Miranda rights (twice). Thus, four times Hall
was told that he had a right to remain silent and a right to counsel. Hall himself
also read his state juvenile and adult Miranda rights. Thus, Hall was told twice,
and read himself once, that he had a right to have a parent present during
questioning if he wanted.
Indeed, the audiotaped confession and transcript included the second reading
of Hall’s state juvenile rights and adult Miranda rights by Officer Major at the
beginning of the audiotape and prior to Hall’s confession. Moreover, twice during
the transcript of his confession, at the beginning of the transcript and again at the
end, Hall orally confirmed that the officers had read him his state juvenile rights
and adult Miranda rights twice and that he understood those rights. During his
63
audiotaped confession, Hall also acknowledged that he had signed the forms
waiving his Miranda rights.
Importantly too, the transcript and audiotape of Hall’s confession give no
indication whatsoever that Hall was confused or misunderstood the seriousness of
the interrogation or the questions he was being asked. Although Hall testified at
the suppression hearing that he could not understand his rights, he also admitted
that he could in fact read and did not deny the officers twice read out loud his state
juvenile rights and adult Miranda rights. Hall has not shown that his intelligence
was so low that he could not understand his rights or the consequences of his
waiver.
Although Hall was fifteen years and eleven months old at the time he
confessed, Hall was only seven months younger than the 16-year-old defendant in
Fare whose confession was upheld over 30 years ago. Although Hall was the same
age as the defendant in the 1948 Haley decision, Hall was not subjected to the
intense pressure tactics or coercive interrogation that the defendants in Haley or
Gallegos encountered. Importantly, Hall was not interrogated for an extended
period of time. Rather, he was interrogated for only a little over an hour at the
station, from approximately 5:42 p.m., when he was first read his Miranda rights,
until his confession was audiotaped from 7:06 p.m. to 7:26 p.m. The transcript and
64
audiotape recording of his confession reveal no evidence that he was mistreated by
the police, tricked, or coerced into waiving his rights or confessing. When asked
during his audiotaped confession whether he had been threatened, Hall stated that
he had not been threatened. On the audiotape, Hall confessed to the crime in detail
and gave no indication that he was fed facts by the officers (as he now claims), that
he was frightened into confessing (as he now claims), or that he did not understand
(as he now claims).39 In fact, the transcript of the confession shows just the
opposite. Our review of the audiotape of Hall’s confession confirms its
voluntariness. The tone of Hall’s voice is calm and certain and does not suggest
duress. Officer Major speaks in normal tones; his voice is measured and non-
threatening.
As to Hall’s father, Officers Major and Grant testified that Hall did not
request his father be present. And significantly, Hall did not suggest at any time
during the 20-minute audiotaped confession that he wanted his father. From this
evidence, the state trial court and jury could reasonably determine that Hall did not
request his father and deny Hall’s motion to suppress.
In any event, even if Hall had requested the presence of his father, this
39
We recognize that Hall had no prior experience with the justice system for him to
become familiar with the Miranda warnings. However, Hall could read them, signed the waiver
forms, and even had his rights read to him out loud twice by the officers.
65
request would not automatically render his waiver and confession involuntary as a
matter of federal law. Regardless of what Alabama law requires, there is no clearly
established federal constitutional requirement: (1) that police officers advise
juveniles, suspected of state crimes, of a right to have a parent present during
questioning, or (2) that interrogation cease upon a juvenile’s request for the
presence of a parent or guardian.40
Nonetheless, we recognize that whether Hall’s parent was present is a factor
to be considered in the totality of the circumstances. See Fare, 442 U.S. at 725, 99
S. Ct. at 2572. And given the totality of the circumstances shown in this particular
record, we cannot say the Alabama courts’ determination that Hall’s waiver was an
unreasonable determination of the facts in light of the evidence presented, nor was
it contrary to, or an unreasonable application of, clearly established federal law.
We recognize Hall also contends that the police coerced him because the
police (1) read him the facts of the crime from a piece of paper “over and over,” (2)
told Hall that they had him on a videotape committing the crime, and (3) began
threatening Hall, kicked his chair, and hit the desk where he was sitting. Hall
40
On appeal, Hall has not argued that his alleged request for his father’s presence was an
invocation of his Fifth Amendment rights to remain silent and that the police were required
immediately to cease interrogation under Miranda. Therefore, he has waived any such
argument. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324 (11th Cir. 2004) (“[T]he
law is by now well settled in this Circuit that a legal claim or argument that has not been briefed
before the court is deemed abandoned and its merits will not be addressed.”).
66
claims that he confessed only to keep the officers from “attacking” him. In the
state hearings, the officers testified, denied Hall’s allegations, and directly
contradicted Hall. The conflicting testimony created fact issues for the state court;
therefore, the state court’s determination that the confession was in fact voluntary,
as opposed to coerced, is not unreasonable based on the evidence in the overall
record.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Hall next argues that Smedley, as trial counsel, was ineffective because she:
(1) did not present expert testimony about Hall’s low level of intellectual ability or
his difficulty understanding directions, (2) failed to interview or call witnesses to
show that Chambers’s testimony as to the telephone records was false, (3) failed to
call witnesses or “otherwise present available evidence” in support of Hall’s alibi
defense, and (4) did not call character witnesses. Hall argues that Smedley’s
errors, individually and collectively, constituted deficient performance which
prejudiced his defense.41
“‘An ineffective assistance claim has two components: A petitioner must
41
In his § 2254 petition in the district court, Hall raised three additional arguments as to
why Smedley’s performance was deficient that he has not raised on appeal: (1) Smedley had
insufficient time to represent Hall effectively, (2) Smedley had insufficient experience to handle
Hall’s case, and (3) Smedley did not request funds for “an investigator, an expert, or anyone or
anything else.” Hall has not raised any of these arguments on appeal, and we therefore deem
them abandoned. See Access Now, Inc., 385 F.3d at 1330.
67
show that counsel’s performance was deficient, and that the deficiency prejudiced
the defense.’” Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir. 2009) (quoting
Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535 (2003)), cert. denied,
-- U.S. --, 78 U.S.L.W. 3714 (U.S. Jun., 2010) (No. 09-10597)). In order to satisfy
the first prong, a petitioner must prove that his attorney’s performance “‘failed to
meet the standard of reasonableness under prevailing professional norms.’” Id. at
1280 (quoting Newland v. Hall, 527 F.3d 1162, 1184 (11th Cir. 2008)). In
evaluating the performance of counsel, this Court “‘indulge[s] a strong
presumption that counsel’s performance was reasonable and that counsel made all
significant decisions in the exercise of reasonable professional judgment.’” Id.
Furthermore, we review an attorney’s performance “‘from counsel’s perspective at
the time, to avoid the distorting effects of hindsight,’” and the review is objective
“‘in that we consider whether there was any reasonable justification for the
attorney’s conduct.’” Id. “‘Thus, the petitioner must establish that no competent
counsel would have taken the action that his counsel did take’” in order to satisfy
the first prong. Id.
In order for a petitioner to satisfy the second prong, “[i]t is not enough for
the defendant to show that the errors had some conceivable effect on the outcome
of the proceeding. . . . The defendant must show that there is a reasonable
68
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland v. Washington,
466 U.S. 668, 693-94, 104 S. Ct. 2052, 2067-68 (1984). However, “[t]he
prejudice prong does not focus only on the outcome; rather, to establish prejudice,
the petitioner must show that counsel’s deficient representation rendered the result
of the trial fundamentally unfair or unreliable.” Rhode, 582 F.3d at 1280. “In
making this determination, a court hearing an ineffectiveness claim must consider
the totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695,
104 S. Ct. at 2069.
A. Hall’s Intelligence Level
Hall argues that his trial counsel Smedley failed to present expert testimony,
such as that given by Taffett, regarding Hall’s low intellectual capabilities. Hall
contends that such testimony would have supported (1) Hall’s motion to suppress
his confession, by showing that he did not understand his rights, and (2) his
defense against Leak’s accusations that Hall planned the crime.
In response, the State argues that Hall’s trial counsel was not deficient in not
retaining an education expert because: Hall could read his Miranda rights; the
officers also read him his rights at least twice; Hall twice stated he understood
69
them; Hall signed the waiver forms; and thus trial counsel could reasonably
conclude no educational expert was needed. The state further argues that Hall’s
low intelligence would not have prevented the introduction of his confession and
thus counsel’s performance was not deficient for this reason too.
We need not decide the performance question because Hall has failed to
establish the requisite prejudice in any event. For example, after hearing Taffett’s
testimony, the state trial court, in denying Hall’s motion for new trial, stated,
“While an accused’s intelligence and literacy are important factors to be
considered in determining whether he intelligently and voluntarily waived his
constitutional rights and made a confession, weak intellect or illiteracy alone will
not render a confession inadmissible.” The state trial court also stated that
“defendant’s intelligence and age were considered fully at the hearing on the
motion to suppress and throughout each of the trials.” The state trial court denied
Hall’s motion for trial even after hearing Taffett’s expert testimony about Hall’s
low intelligence. The trial court had the opportunity to evaluate Hall’s level of
intelligence and the credibility of his testimony that he did not understand his
Miranda rights.
Simply put, Hall has failed to show that evidence of Hall’s intelligence
would have made a difference in the state court’s finding that the confession was
70
voluntary. The Alabama Criminal Court of Appeals affirmed the state trial court’s
ruling, stating only that “None of the claims raised by the appellant indicate that
his counsel rendered deficient performance that resulted in prejudice so as to
require a new trial under the strict standard set out in Strickland v. Washington,
supra.”42
Hall has not shown that the Alabama Court of Appeals’ conclusion—that
there was no reasonable probability that expert evidence of Hall’s low intelligence
would have resulted in any difference in the admission of his confession or the
outcome of the trial—was contrary to or an unreasonable application of clearly
established federal law, or based on an unreasonable determination of facts.
Similarly, as for whether evidence of his intellectual abilities would have
successfully supported Hall’s defense at trial, Hall testified at length for the jury,
and the jury also heard evidence about Hall’s social interactions with his friends,
including the coordination of plans to attend the dance, his multiple conference
calls, his involvement in a rap group, as well as his possible involvement in gang
activity. This evidence gave the jury ample opportunity to evaluate Hall’s
intelligence level and his social skills. It was neither unreasonable nor contrary to
clearly established federal law for the state courts to conclude that additional expert
42
The Alabama Supreme Court denied Hall’s petition for certiorari as to this contention.
71
testimony on Hall’s intelligence would not have raised a reasonable possibility of a
different verdict.
B. Chambers’s Testimony
Hall also contends that Smedley failed to interview or present witnesses to
show that Chambers’s testimony was false as to the retention period for
BellSouth’s telephone records of outgoing local calls. Had she done so, Hall
argues, Chambers’s testimony would not have undermined Hall’s alibi.
The state trial court, in denying the motion for new trial, concluded that
Smedley’s performance did not fall below the Strickland standard. Furthermore,
the trial court concluded that there was no prejudice because Chambers’s testimony
at trial “did not indicate that there were no calls, but [that] ‘we have no record of
those – any calls for those days,’” and that the testimony of a juror indicated that
the jury ignored the evidence of the phone records. The Alabama Court of
Criminal Appeals then affirmed, Hall v. State of Alabama, No. CR-00-1180, slip
op. (Ala. Crim. App. Oct. 18, 2002) (unpublished), as did the Alabama Supreme
Court. Ex parte Hall, 863 So.2d at 1081.
The Alabama Supreme Court did not reach the performance prong but
agreed with the trial court’s ruling that the truth about the telephone records would
not have affected the outcome of the trial: “The telephone records, like the other
72
evidence, merely presented a conflict the jury was required to resolve in assessing
Hall’s guilt.” Ex parte Hall, 863 So.2d at 1083. Furthermore, the Alabama
Supreme Court stated, “We cannot say that Hall was prejudiced by his counsel’s
failure to discover Chambers’s false testimony because we have already
determined that truthful testimony as to the telephone records would not have
altered the outcome of the trial.” Id. at 1085.
Hall has failed to show that the Alabama Supreme Court was unreasonable
in its conclusion that Hall was not prejudiced by Chambers’s false testimony. At
trial, Smedley significantly undermined the credibility of Chambers’s testimony
during cross-examination by pointing out the oddity that BellSouth had no records
of any outgoing local phone calls from any of the multiple homes in question for
the entire day, despite the testimony of numerous witnesses to the contrary.43
Moreover, one juror testified that Chambers’s testimony was difficult to believe
and was largely disregarded by the jury. Finally, even absent the testimony of
Chambers, there was significant evidence in the record that Hall was guilty,
including his own audiotaped confession and Leak’s testimony.
In summary, Hall has not carried his burden to show the Alabama Supreme
43
Also, Chambers did not testify that there were no phone calls on October 15, 1999 but
rather that BellSouth records did not show any outgoing phone calls.
73
Court’s decision—that Hall was not prejudiced by Smedley’s failure to present
evidence of the falsity of Chambers’s testimony—was contrary to or an
unreasonable application of federal law, or based on an unreasonable determination
of facts.
C. Failure to Present Additional Alibi Evidence
Hall also contends that he was denied effective trial counsel because
Smedley (1) failed to call Pamela Armstrong, Gloria McElroy, and Sunkeissa
Cantrell as alibi witnesses and (2) failed to present any other evidence in support of
his alibi. In denying his motion for a new trial, the state trial court concluded that
Hall’s alibi defense was “more tha[n] adequately represented” through the
testimony of the witnesses who did testify at trial, and “[a]ny other evidence would
have been cumulative.” The Alabama Court of Criminal Appeals agreed with
these findings.
“[I]t is well-settled in this Circuit that a petitioner cannot establish an
ineffective assistance claim simply by pointing to additional evidence that could
have been presented.” Rhode, 582 F.3d at 1284 (quotation marks omitted).
“Counsel is not required to present cumulative evidence or evidence incompatible
with the defense strategy.” Id. at 1287; see Bobby v. Van Hook, -- U.S. --, 130 S.
Ct. 13, 19 (2009) (“[T]here comes a point at which evidence . . . can reasonably be
74
expected to be only cumulative, and the search for it distractive from more
important duties.”). Furthermore, the decision concerning “which witnesses, if
any, to call, and when to call them, is the epitome of a strategic decision, and it is
one that we will seldom, if ever, second guess.” Rhode, 582 F.3d at 1284 (internal
quotation marks and brackets omitted).
A review of the testimony of Sunkeissa Cantrell, Pamela Armstrong, and
Gloria McElroy from Hall’s first trial reveals no evidence that was not adequately
presented through seven other alibi witnesses at trial. Moreover, Smedley testified
during the hearing on Hall’s motion for a new trial that she called all of the
witnesses that, in her judgment, supported her theory of the case. We will not
second-guess such decisions by counsel. See Rhode, 582 F.3d at 1284.
The Alabama Court of Appeals’ conclusion that further evidence to support
Hall’s alibi would have been cumulative of other evidence presented at trial was
not contrary to or an unreasonable application of clearly established federal law,
nor was it based on an unreasonable determination of the facts.
D. Character Witnesses
Finally, Hall contends that he was deprived of effective trial counsel because
Smedley “did not call persons who had and would have testified as to Darryl Hall’s
good character.” The trial court and the Alabama Court of Criminal Appeals found
75
that Smedley’s performance was not ineffective, and that conclusion is not
unreasonable. Several witnesses at the third trial testified that Hall was not
involved in gang activity. Hall’s father testified that Hall had never had serious
discipline problems or problems at school. Hall has failed to point to any
additional character evidence which would have made any difference in the
outcome of the trial. In his appellate brief, Hall merely cites to the testimony in the
first trial of Linda Dowe and Gregory Dowe that he had a good reputation.
Again, “it is well-settled in this Circuit that a petitioner cannot establish an
ineffective assistance claim simply by pointing to additional evidence that could
have been presented.” Rhode, 582 F.3d at 1284 (quotation marks omitted). And in
any event, Hall has not shown that testimony that he had a “good reputation”
would have raised a reasonable probability of a different verdict.
In summary, we conclude that the Alabama courts’ conclusion—that Hall’s
trial counsel was not ineffective—is not an unreasonable determination of the facts
in light of the evidence presented, nor is it contrary to, or an unreasonable
application of, clearly established federal law.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Hall’s
§ 2254 petition.
76
AFFIRMED.
77
WILSON, Circuit Judge, concurring in the result:
Hall was a 15-year-old who made statements during a custodial interrogation
that were used to convict him, for which he received a sentence of life
imprisonment. Three aspects of this case are initially troubling.
The first is that a juvenile was sentenced to life imprisonment for non-capital
crimes. However, because it appears from the record that Hall is eligible for parole
under Alabama law after ten years, he is unable to make an effort to avail himself
of Graham v. Florida, 560 U.S. --, 130 S. Ct. 2011, 2034 (2010) (“The
Constitution prohibits the imposition of a life without parole sentence on a juvenile
offender who did not commit homicide.”).
Second, Hall was convicted after a third trial, based on evidence that failed
to convince two prior juries, which concerned at least one justice on the Alabama
Supreme Court. Ex parte Hall, 863 So. 2d 1079, 1087–88 (Ala. 2003) (Lyons, J.,
concurring specially) (“I am troubled by the fact that on two prior occasions, two
separate juries were unable to find Hall guilty of the same charges, presumably in
face of the same confession and the same evidence contradicting Hall’s alibi.”).
Yet, as Justice Lyons points out, Hall failed to mount a challenge to the sufficiency
of the evidence on direct appeal.
Third, the conflicting evidence presented at the hearing on the motion to
78
suppress could have supported a finding that the “greatest care” was not exercised
to insure that Hall’s statements, made in the absence of his father, were voluntary
and free from coercive circumstances. The Supreme Court has stated repeatedly
that “the greatest care” must be taken to assure that the confession of a juvenile
“was voluntary, in the sense not only that it was not coerced or suggested, but also
that it was not the product of ignorance of rights or of adolescent fantasy, fright, or
despair.” In re Gault, 387 U.S. 1, 55, 87 S. Ct. 1428, 1458 (1967); see also Fare v.
Michael C., 442 U.S. 707, 732–33, 99 S. Ct. 2560, 2576 (1979) (Powell, J.,
dissenting). But since the Alabama courts’ finding to the contrary is an
adjudication on the merits, is entitled to AEDPA deference, and is not otherwise
contrary to or an unreasonable application of the totality of the circumstances
standard set forth by the Supreme Court in Fare, I concur in the judgment of the
Court.
79
VOLUNTARY STATEMENT FOrA
MONTGOMERY POLICE DEPARTMENT
DIV: Juv BUREAU: Enforcement DATE: 10/17/99
NAME: Darryl Pierrie Hall AGE: 15 SEX/RACE: M/B
ADDRESS: 3125 Brookwood Drive PHONE: 284-1968
CONCERNING: Rape 1st/Robbery 1st/Sodomy 1st Investigation
LOCATION OF INTERVIEW PAB: YES NO (SPECIFY): Juvenile Division
STATEMENT T?J(EN Y: Officer M. L. Major. #348
Beginning time 1906 Hours.
Q: State your name.
A: Darryl Hall.
Q: Darryl, were you read both your Juvenile Miranda Rights and your adult
Miranda Rights?
A: Yes, sir.
Q: Did Officer M. L. Major read you your rights?
A: Yes, sir.
Q: Did you sign these rights?
A: Yes, sir.
Q: Did you understand these rights?
A: Yes, sir.
Q: Your Juvenile Rights were read to you at 1742 Hours?
A: Yes, sir.
Q: Your adult rights was read to you at 1744 Hours?
A: Yes, sir.
alc/A0678
72 /7/(;T
DetectXve Signature Witness Signature
Signature of Person Giving Statement: I hereby affirm that the facts'
values and/or descriptions given by me in this statement are the whole
truth to the best cf my knowledge and belief.
/ /
Page 2
Q: Okay, Darryl, I'm gonna read these rights to you again. First I'm gonna
read you your Juv, your Juvenile Rights, the time is gonna be 0708
Hours, correction, 1908 Hours. Before asking you any questions, i must
explain to you that you can remain silent, that anything you say can be
used against you in court, that you can talk to a lawyer first and that
you have the right to the advice and presence of a lawyer even though
you cannot afford to hire one. If you cannot afford to hire a lawyer
and want to have one present during interrogationf the court will
appoint one before we question you. If you want to answer questions now
you can do so, but stop answering at any time. You have the right to
communicate with your parent or guardian before questioning. If
necessary, reasonable means will provide for you to do so. Do you
understand these rights?
A: Yes, sir.
Q: And did you sign this rights form?
A: Yes, sir.
Q: These are your adult rights and the time now is 1909 Hours. Before
asking you any questions, I must explain to you that you can remain
silent, that anything you say can be used against you in court, that you
can talk to a lawyer first and that you have the right to the advice and
presence of a lawyer even though you cannot afford to hire one. If you
cannot afford to hire a lawyer and want to have one present during
interrogation, the court will appoint one before we question you. If
you want to answer questions now you can do so, but stop answering at
any time. Do you understand these rights?
A: Yes, sir.
Q: Did you sign this rights form?
A: Yes, sir.
Q: State your name.
A: Darryl Hall.
Q: Darryl, what's your address?
A: 3125 Brookwood Drive.
alc/A0678
;7:7; (' ;7c•2_l
Detective4ignature Witness Signature
Signature of Person Giving Statement: I hereby affirm that the facts;
values and/or descriptions given by me in this statement are the whole
truth to the best of my knowledge and belief
Page 3
Q: What's your birthday?
A: November the 8th, 1983.
Q: How old are you?
A: Fifteen.
Q: What school do you attend?
A: Cloverdale.
Q: What street is Cloverdale located on?
A: Fairview I guess, Fairview.
Q: Okay. Do you know a subject by the name of Alonzo Leak?
A: Yes, sir.
Q: How do you know Alonzo Leak?
A: We had class together at Cloverdale for the last year.
Q: Did you see Alonzo Leak in Capitol Plaza on Friday, about, on Friday,
the date was the 15th of October, 1999?
A: Yes, sir.
Q: Did you see him about 4:00 P.M.?
A: Yes, sir.
Q: Where did you, where did you see him at?
A: Where I first seen him at, at Capital Plaza and then we started talking.
Q: What, what were ya'll talking about?
A: I, well, he was of our gang because I told him you want to go in a gang,
and he said man nuh, so I, he finally said yeah, and I told him these
are the things you can do.
Q: What did you tell him he had to do to get in a gang?
A: Rob Little People's Workshop.
Q: You told him he had to rob Little People's Workshop in order to get in
a gang?
A: Or get beat up.
alc/A0678
Dete ctiSignature Witness Signature
Signature of Person Giving Statement: I hereby affirm that the facts,
values and/or descriptions given by me in this statement are the whole
truth to the best of my knowledge and belief,
r U
J
i,_L I [I
Page 4
Q: Yes or no, did you tell him...
A: Yes, sir.
Q: So you did tell him he had to rob Little People's Workshop or to get
beat up?
A: Yes, sir.
Q: Okay, what else did you tell him he had to do?
A: Just bad.
Q: Okay, when you told him that what did he say?
A: He said okay
Q: Did you and him go to the Little People's Workshop?
A: Yes, sir.
Q: When ya'll was walking to the Little People's Workshop what did ya'll
discuss?
A: I told him how, how to do it, you go to the front and I'll be on the
back. I told Alonzo to go in the front and I, I'll go into the back and
watching out and looking and stuff. When he went and did it I walked
through the door and then stood there, and he looked at me then he said
my name, and then I had him say, say another name.
Q: What name did you say?
A: Joseph Gates.
Q: Joseph Gates or Joseph Grady?
A: Grady.
Q: And where, where, where did you say you lived?
A: On Troy Highway.
Q: Okay, when, how many times did Alonzo go inside this business?
A: About two or three.
Q: Did he go in two times or did he go in three times?
A: I'm pretty sure it three.
alc/A0678
772 /
Detectiv Signature Witness Signature
Signature of Person Giving Statement: I hereby affirm that the facts;
values and/or descriptions given by me in this statement are the whole
truth to the best of my knowledge and belief.
- ---------- Pe -
• Page5
Q: How long did he stay inside this business?
A: About 15 or 30 minutes.
Q: Each time he stayed in 15 or 30 minutes, or did he stay in there a total
of 30 minutes?
A: Or maybe 30 minutes, yeah, 30 minutes.
Q: Thirty minutes each time?
A: Yes, sir.
Q: When he went in, okay, before you all got to Little People's Workshop
did you hand him anything?
A: Yes, sir.
Q: What did you hand him?
A: Two guns.
Q: What type of guns?
A: .38 and a 9.
Q: A 9 what?
A: Millimeter.
Q: Describe the guns.
A: The 9 was silver and the .38 was black.
Q: Where did you get these guns from?
A: Well a friend I know from a long time ago.
Q: How long have you had these guns?
A: About two months.
Q: What's this friend's name?
A: Reginald Powell.
Q: Reginald Powell?
A: Yes, sir.
alc/A0678
772 ,'( zyy __________________
Detecti Signature Witness Signature
Signature of Person Giving Statement: I hereby affirm that the facts,
values and/or descriptions given by me in this statement are the whole
truth to the best of my knowledge and belief.
--- --------------------------------- ------------ -•-
--1
Page 6
Q: Do you know where he got them from?
A: No, sir.
Q: Where does Reginald Powell live?
A: Somewhere by base, trailer park.
Q: Trailer park by Maxwell AFB?
A: Yes, sir, Inaudible
Q: Is he a black or white male?
A: Black.
Q: Are these guns stolen?
A: I dontt know, he ain't tell me.
Q: Can you repeat that?
A: I don't know, he ain't tell me.
Q: So he went in Little People's Workshop and when he went in the Little
People's Workshop his intentions was to rob the place because you told
him to rob the place?
A: Yes, sir.
Q: Why did you tell him to rob the place?
A: It's the only way to get in the gang.
Q: And...
A: And I needed, need the money to go to the dance.
Q: What dance?
A: The Homecoming.
Q: At what school?
A: Cloverdale Junior High.
Q: When he was committing the robbery did you enter the building?
A: Yes, sir.
alc/A0678
Detecti e Signature Witness Signature
Signature of Person Giving Statement: I hereby affirm that the facts,
values and/or descriptions given by me in this statement are the whole
truth to the best o my knowledge and belief.
'Page 7
Q: How many times?
A: About one or two, ITm pretty sure two.
Q: So you...
A: The first time I went I stuck my hand through the door and I stepped in,
went back out and I Inaudible and then I went back in
and stayed for about, about five minutes.
Q: Okay, in those five minutes when you stayed in, in the business, what
was Joseph doing?
A: He had the white girl name Crystal and then he told her to get on the
ground. She got on the ground and he told her shut up bitch, and then
she was crying like help, and then but it seemed he had mouth, hand over
her mouth but it seem like she had hers covering up from trying to keep
quiet while she was crying.
Q: Okay, did you see him rape her?
A: No, no, sir, I just seen him on the ground and he was standing over her.
Then I went back out and I ain't never came back in by the second time.
Q: Okay. The second time when you came in did he hand, hand you anything?
A: No, sir.
Q: When you was inside the building did he hand you any money?
A: No, sir, on the outside.
Q: Did he come out and hand you the money?
A: And we met up and then again he just caught out running down Elsmeade
Road and turned in Brookwood.
Q: Okay, ya'll met up and he handed you how much money?
A: He ran out the back door and gave it to me, then he caught out through
that way because he knew ain't no way going to that church thing and
went back in the yard because it was like a fence back there.
Q: So when he ran out the business he handed you some money?
A: Yes, sir.
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Signature of Person Giving Statement: I hereby affirm that the facts'
values and/or descriptions given by me in this statement are the whole
truth to the best of my knowledge and belief.
Page 8
Q: And then both of ya'll went running towards ya'll houses?
A: Yes, sir.
Q: And then ya'll met up again down the street and you gave him some money
back?
A: I gave the money right back.
Q: What about the two checks?
A: The checks, I had it but he, he gave it to me so I just ripped them up
by Winn Dixie in real small tiny little pieces then I threw it in the
ground where it was wet at, and the water just had it on the side.
Q: Okay. Tell me again about when he ran out the building.
A: When he ran out the building he ran out the back door where I was and he
stopped and say here man, here man, here. So I got it and then I said
hold up man, I gave it back to him.
Q: What did you get?
A: He gave me a check.
Q: And what else?
A: And that's it, he ain't gave me no jewelry or no gun, he kept them two
and ran out with it. Then he gave me back them two checks so I just ran
toward Winn Dixie in that big old field behind and then tore it up in
small pieces and put by in the water where it carry at and It went by.
And I ran back home and that when I seen him by that ditch by my house,
he slowed downand then when I got in the car he ran.
Q: Did you tell Joseph to kill the people?
A: Yes, sir.
Q: Why did you tell him to kill the people?
A: What recognize us witness.
Q: I can't hear you.
A: Recognize far as the witness.
Q: Why didn't Joseph kill the people?
A: I don't know.
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truth to the best of my knowledge and belief.
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Page 9
Q: Did you tell him to rape the females?
A: No, sir, I told him to rob it.
Q: You told him to rob it?
A: Yes, sir.
Q: Okay ,earlier in my interview when we was just talking, you told me you
told Joseph he had to rape those girls in order to get in a gang.
A: No, I told him he had to rob the p lace and get the money, an d then gone
out. And then when I walked in he was raping her and got the money. He
had the money, then he raped the girl who was standing all the way by
him.
Q: What else did he take from the girl?
A: He just had them on the ground at gunpoint.
Q: What else property did he take from the business?
A: I think like jewelry or something.
Q: At any point and time did he, did he give you some keys to a car?
A: Yes, sir, and I had went in her car and checked and looked around and I
just closed the door and I went back behind.
Q: Who car?
A: Crystal.
Q: How do you know Crystal?
A: From my friend name John.
Q: Did John have anything to do with this?
A: No, sir.
Q: Tell me what type of relationship that you have with Crystal?
A: I know her through John, then we went, when I got to know her from John
she was like real cool and friends. She come pick us up every time we
go to Super Wal-Mart to get her baby some stuff. And then John told me
that she used to over there and go get her, she, she put her little baby
daughter inside the day care and she'll like go pick her up every time
she come out the school.
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Detecti Signature Witness Signature
Signature of Person Giving Statement: I hereby affirm that the facts;'
values and/or descriptions given by me in this statement are the whole
truth to the best of my knowledge and belief
Page 10
Q: So you know Crystal pretty well?
A: Mostly, likely.
Q: Okay. How many people was inside the business that you know of?
A: Just her.
Q: You said you heard him screaming at other people, right?
A: He was yelling telling be quiet, get down, then he told Crystal to shut
up bitch, like that, and she got on, I told you to get on the ground so
she got down on the ground, then he stand over her and then, then he
told her to shut up and then she started crying.
Q: But how many people that you, how many people do you think were inside
the business?
A: Like 15 or 20 grownups and little children.
Q: So you don't know actually how many people was in the business?
A: No, sir.
Q: Because you just stepped in the business and you just saw him and
Crystal?
A: And then some more folks like on the side. They was like holding their
mouth over and you know keeping quiet when he told Crystal to shut up.
Q: Where do you think these are located?
A: By the ditch way up on Broo ood and the one by my house. I'm pretty
sure one by, by his house, the doghouse, the other one he say usually
hide all his stuff at and nobody will never find it.
Q: So you're telling me when you met Darryl at Capital Plaza.
A: It's Alonzo.
Q: Correction, you, you are Darryl, correct?
A: Yes, sir.
Q: You met Alonzo at Capital Plaza?
A: Yes, sir.
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values and/or descriptions given by me in this statement are the whole
truth to the best of my knowledge and belief.
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Page 11
Q: And you told Alonzo to go rob Little People's Workshop to get in a gang?
A: Yes, sir.
Q: He acted on himself when he raped.
A: Yes, sir.
.those girls?
A: Yes, sir.
Q: Did you ever tell him to rape those girls?
A: No, sir, I just told him to rob and get the money, because I told him
what I need the money to go to the Homecoming Dance, and then I ain't,
I ain't told him nothing about raping them girls, I ain't say nothing
like that, I just said just get the money. And then when he yelled out
my name Darryl I flipped it around and said Joseph Gates, and then I
said I live on the Troy Highway, because the only reason I said that
keep them from like get out my name and the police like they gonna
contact me real quick.
Q: What did you take from the business?
A: What I take, took from them, I ain't take anything.
Q: You said he gave you...
A: Oh, when I was in there I ain't took anything, when I came out he came
out and then he looked at me, we started, and he gave me the money half
of it then I gave it back to him, and then when I ran down there he gave
it back to me, so I cut in the little field behind Winn Dixie and tore
it up, rip it apart in real tiny little pieces.
Q: Did you go through any desks?
A: No, sir.
Q: You never touched any type of desk?
A: No, sir.
Q: How far did you actually go inside the business?
A: Like three or four feet.
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truth to the best of my knowledge and belief
Page 12
: Three or four feet? And that's when you saw.
A: The first time it was like one or two feet, the third three or four.
Q: So you went in the building three times?
A: No, I said when the first time I went in there it looked how far I went
in like one or two feet, and the second time like three or four feet.
Q: Okay. Is there anything else you want to tell me about what happened?
A: No, sir.
Q: Have you done this at any other businesses?
A: No, sir.
Q: Have you had anybody else committing other crimes?
A: No, sir, first time.
Q: This your first time ever being in trouble?
A: Yes, sir.
Q: Are you affiliated with any type of gangs?
A: No, sir.
Q: How were you gonna get Alonzo in a gang if you are not in a gang?
A: I know some people who, who will put him in a gang because they was
talking about it, by last, about two weeks ago. That's how I knew how
you can get in, because once he would have dit it I would told them to
gone put him in because he did what I had told him, and the probably
would have put him in where they stayed at.
Q: When were you suppose to talk to these people?
A: Like the day he did it I probably would have talked to them like, like
sometime soon when I would have seen him.
Q: Is there anything else you want to add to this statement?
A: No, sir.
Q: Okay, let me make sure I have everything correct.
A: Yes, sir.
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Signature of Person Giving Statement: I hereby affirm that the facts
values and/or descriptions given by me in this statement are the whole
truth to the best of my knowledge and belief.
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Q: You saw, did u see Joseph at Capital Plaza?
A: Yes, sir.
Q: Did you give Joseph some guns and tell him to rob Little People's
Workshop so he can get in a gang?
A: Yes, sir.
Q: When he first, when he went in the building did you go around the back
to be a lookout?
A: Yes, sir.
Q: Did you know exactly what he was going to do?
A: Yes, sir, but I ain't know he was going to rape them girls.
Q: Okay.
A: He took that, he took that out his own hands, he raped them.
Q: Did you at one time receive some of the property from the business and
give it back to Joseph?
A: Yes, sir.
Q: Did you tear up some checks and let them run in some water so they can
go in the drainage ditch?
A: Yes, sir.
Q: Did you do this behind W.inn Dixie?
A: Yes, sir.
Q: Did you get the guns from a black male name Reginald Powell?
A: Yes, sir.
Q: And Reginald Powell live in the trailer park by Maxwell Air Force Base?
A: Yes, sir.
Q: Did you cash those checks at Winn Dixie?
A: No, sir.
Q: Did you tell me earlier you cashed those at some Winn Dixie?
A: Yes, sir.
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Signature of Person Giving Statement: I hereby affirm that the facts,
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Page 14
Q: Reginald Powell, is he in any type of gang?
A: He kind of like he was Crip, like every time we talk on the phone he
will pretend like he Crip and stuff.
Q: How old is Reginald?
A: Sixteen.
Q: And you have no idea where he got those guns from?
A: No, sir.
Q: What time did all this take place?
A: Talking about during the robbery?
Q: Yes, sir.
A: About four or five.
Q: And it took ya'll between 30 minutes, a hour to commit this crime?
A: Yes, sir.
Q: And you was advised of your Miranda Rights, both your Juvenile and Adult
Miranda Rights by myself?
A: Yes, sir.
Q: And you were read your Miranda Rights twice?
A: Yes, sir.
Q: Both?
A: Yes, sir.
Q: Which you understood?
A: Yes, sir.
Q: Has any threats been made to you?
A: No, sir.
Q: Do you have anything else to add to this statement?
A: No, sir.
Ending time 1926 Hours.
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Detect' Signature Witness Signature
Signature of Person Giving Statement: I hereby affirm that the facts;
values and/or descriptions given by me in this statement are the whole
truth to the best of my knowledge and belief.