Opposition Brief — Dennis Morgan Hicks, Petitioner v. Alabama

No. 22-7075

CAPITAL CASE

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In the SUPREME COURT of the UNITED STATES

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DENNIS MORGAN HICKS,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

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On Petition for a Writ of Certiorari to the

Alabama Court of Criminal Appeals

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BRIEF OF RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

════════════════════════════════════════

Steve Marshall

Alabama Attorney General

Edmund G. LaCour Jr.

Solicitor General

Audrey Jordan

Assistant Attorney General

Counsel of Record *

May 22, 2023

Office of the Attorney General

501 Washington Avenue

Montgomery, Alabama 36130-0152

ajordan@ago.state.al.us

(334) 353-3637 Facsimile

(334) 242-7300, 353-4338 *

CAPITAL CASE

QUESTION PRESENTED

At trial, prior out-of-court statements made by child witnesses Ja.N. and

Jo.N. were admitted and presented to the jury. In their statements, the children

explained that they had witnessed Dennis Morgan Hicks arguing with the

victim, Joshua Duncan. They saw Hicks cut Duncan, hang him from a tree in

the backyard, then cut off Duncan’s head and hands, as well as cut out

Duncan’s stomach. See Hicks v. State, CR-15-0747, 2019 WL 3070198, *17

(Ala. Crim. App. July 12, 2019). Both Ja.N. and Jo.N. testified at trial and

were cross-examined about their statements, as well as their memory of what

they witnessed on the day Duncan was murdered.

The question arising from Hicks’ petition:

1. Was Hicks’ Sixth Amendment right to confront child witnesses Jo.N.

and Ja.N. violated when both witnesses were confronted and cross-examined

during trial?

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TABLE OF CONTENTS

QUESTION PRESENTED .............................................................. i

TABLE OF CONTENTS ................................................................. ii

TABLE OF AUTHORITIES .......................................................... iii

STATEMENT OF THE CASE ........................................................ 1

A.

The Proceedings Below. ....................................... 1

B.

The Facts Presented at Trial............................... 3

C.

The Facts Surrounding the Admission of

the Out-of-Court Statements. ............................. 9

REASONS FOR DENYING THE PETITION .............................. 11

I. Hicks’ claim that his Sixth Amendment right to confront

witnesses was violated when prior out-of-court

statements were admitted during trial is not preserved

for review................................................................................ 12

II. Hicks’ claim is meritless. ....................................................... 13

CONCLUSION.............................................................................. 16

ii

TABLE OF AUTHORITIES

Cases

Adams v. Robertson,

520 U.S. 83 (1997)............................................................................. 12

Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537 (1987)........................................................................... 13

California v. Green,

399 U.S. 149 (1970)........................................................................... 13

Crawford v. Washington,

541 U.S. 36 (2004)................................................................. 12, 13, 14

Ex parte Hicks,

2022 WL 17073090 (Ala. Nov. 18, 2022). ........................................... 3

Hicks v. State,

2019 WL 3070198 ...................................................................... passim

Michigan v. Bryant,

562 U.S. 344 (2011)........................................................................... 13

United States v. Scheffer,

523 U.S. 303 (1998)........................................................................... 15

Webb v. Webb,

451 U.S. 493 (1981)........................................................................... 13

Weeks v. Angelone,

528 U.S. 225 (2000)........................................................................... 15

Code of Alabama

§13A-8-4 .............................................................................................. 2

§13A-5-40(a)(6) ................................................................................... 1

iii

STATEMENT OF THE CASE

Dennis Hicks killed Joshua Duncan, dismembering Duncan’s hands

and head, disemboweling him, and causing multiple chopping-type wounds

on his body. Approximately seven months after Duncan’s murder, Ja.N. and

Jo.N., who were four and three years old, respectively, provided three separate

statements about what they had witnessed regarding the murder. These

statements were admitted during trial. Hicks now challenges these out-ofcourt statements, arguing that their admission violated his right to confront

Jo.N and Ja.N. But not only did Hicks waive this issue when he failed to

present it to the state courts, the record also reflects that both witnesses

testified at trial and were subject to cross-examination. As such, he presents

no viable issue for this Court to consider. Thus, this Court should deny Hicks’

petition.

A.

The Proceedings Below.

During Labor Day weekend in 2011, Dennis Morgan Hicks brutally

murdered a mentally disabled man named Joshua Duncan, dismembering

Duncan’s hands and head. In December 2012, a Mobile County grand jury

indicted Hicks for one count of capital murder for intentionally murdering

Duncan while Hicks was under a sentence of life imprisonment in violation

of Section 13A-5-40(a)(6) of the Code of Alabama and one count of second-

degree theft in violation of Section 13A-8-4 of the Code of Alabama. (C. 130–

31, 136–37.)

Trial commenced on January 19, 2016; and, on January 29, 2016, the

jury found Hicks guilty as charged in the indictment. (C. 72, 128, 131, 133,

137, 139.) The jury subsequently recommended a sentence of death by a vote

of 11-1. (C. 72, 134, 135.) The trial court followed the jury’s recommendation

and sentenced Hicks to death for his capital murder conviction. (C. 73–96.1)

He was sentenced to time served for his second-degree theft-of-property

conviction. (Id.) Hicks’ convictions and sentences were subsequently

affirmed by the Alabama Court of Criminal Appeals. See Hicks v. State, CR15-0747, 2019 WL 3070198 (Ala. Crim. App. July 12, 2019). His application

for rehearing was overruled on October 1, 2021.

Hicks filed a petition for writ of certiorari on November 18, 2021. On

May 17, 2022, the Alabama Supreme Court granted Hicks’ writ of certiorari

only to the issues stated in Ground IV–whether the Court of Criminal Appeals’

holding that Hicks’ constitutional rights were not violated by the deprivation

of counsel during his pretrial mental evaluation conflicts with state and federal

law–and Ground V–whether the Court of Criminal Appeals’ finding that the

1. This case was remained twice to correct the trial court’s sentencing order.

(See Supp.2 C. 24–27; see also Supp.2 C. 28–45.)

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trial court’s admission of Dr. Karl Kirkland’s testimony was proper conflicts

with state and federal law. The Alabama Supreme Court subsequently

quashed the writ, finding that Hicks failed to show that “the violation of his

right to counsel . . . contaminated the entire criminal proceedings” and that

any error resulting from the admission of Dr. Kirkland’s testimony and report

was harmless. Ex parte Hicks, No. 1210013, 2022 WL 17073090, *13, *23

(Ala. Nov. 18, 2022).

B.

The Facts Presented at Trial.

Joshua Duncan, a mentally disabled man, was raised by his

grandmother, Dorothy Smith Hudson, in Semmes, Alabama. (R. 1163.) As he

had the mental capacity of a twelve-year-old and could not maintain a job,

Duncan received a monthly check from the Social Security Administration.

(C. 1152; R. 1052–53.)

Duncan and Hudson frequently attended services at the Power of God

Worship Center. There, Duncan became acquainted with Dennis Hicks, who

did odd jobs around the church and for its members. (R. 1371.) Hicks took

Duncan under his wing and became somewhat of a father figure to him, even

offering to teach him to drive. (R. 1374–75.) Hudson hired Hicks for small

jobs around her house. On one of these occasions, Hicks saw a trailer that

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belonged to Hudson and asked if he could use it, but she refused. (R. 1040–

49.)

The events of Duncan’s murder transpired around the Labor Day

weekend in 2011. On Thursday, September 1, after receiving the money from

his monthly SSI check, Duncan left with Hicks to paint a house. (R. 1052–53,

1085, 1089–92.) This was the last time that Hudson ever saw Duncan alive,

and she was unable to reach him over the weekend. On Friday, Duncan was

approved to receive food stamps at Hicks’ address in the amount of $200 per

month. (R. 1759–60.)

That Sunday, Duncan went to church with Hicks and his sister, Regina

Norris. (R. 1108.) Later that afternoon, Duncan went with Hicks to take

Hicks’ other sister, Phyllis Lister, to her son’s house. Hicks told his nephew

that he and Duncan were on their way to Gulf Shores. (R. 1390.) Meanwhile,

Hudson called her daughter, Karen Bankston, looking for Duncan. (R. 1109.)

On Labor Day, September 5, Hicks finally returned Hudson’s calls.

Around 4 or 5 PM, he told her that Duncan had left his house on foot at 2 AM

after an argument. (R. 1056.) Based on this report, Hudson began searching

the area for Duncan. (R. 1057–59, 1528.) Norris’s neighbor, however, saw

Duncan painting Hudson’s trailer at 6 PM and took his picture. (R. 1333,

1341, 1546.)

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The next day, Hudson reported her trailer stolen and Duncan missing.

Mobile County Sheriff’s Investigator Andrew Peak called Hicks, who claimed

that he caught Duncan masturbating at Norris’ house late Sunday or early

Monday and that they left. Hicks further claimed that when he and Duncan

returned to his house, they got in another argument, and Duncan left on foot

at approximately 2 AM, never to be seen again. (R. 1525.)

Investigator Brad Grandquest took the report on the missing trailer and

interviewed Hicks about it. (R. 1510, 1522.) Inv. Peak then interviewed Hicks

about Duncan’s disappearance; but this time, Hicks claimed that Duncan had

walked away from his house around 5 or 6 PM Monday. (R. 1543.)

Investigators went to extraordinary lengths to try to confirm Hicks’s claims,

including checking video recordings from gas stations between Hicks’

residence and Duncan’s home, but they found no evidence supporting Hicks’

story. (R. 1524, 1528.)

Duncan’s friends and family began a campaign to find him. While she

was hanging flyers, Mary Ammons Clark noticed Hicks following her in his

vehicle and removing the signs she was putting up. (R. 1168.) On September

29, Norris called Inv. Peak, informed him that her neighbor had surveillance

video, and suggested that he look at it. (R. 1538.)

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A few weeks later, on October 24, Charles Shepherd was clearing some

fields at the back of an old gun range when he noticed a strong odor. Shepherd

and his coworkers began to comb the area and soon found a shoe with a bone

in it. Shortly thereafter, they found human remains wrapped in a blue tarp and

notified law enforcement. (R. 1421–22, 1429–30, 1465.) Though the body

was missing its head and hands, DNA testing identified it as Duncan’s. (R.

2022.) His hands had been forcibly removed with a bladed instrument,

possibly a heavy kitchen knife. (R. 1927, 2062, 2066, 2069.) His head was

never found. (R. 1444–47, 1503.)

Around the time of Duncan’s disappearance, Norris’ three young

grandchildren, A.N., Ja.N., and Jo.N (ages five, four, and three,

respectively), were living with her. (R. 1253–50, 1295.) In April 2012,

Shawna Mayo was babysitting two of the children and observed them acting

out disturbing acts of fantasy violence, including stabbing, hanging,

decapitating, and pretending to dismember a person. (R. 1236–39.) On April

5, Inv. Peak interviewed Ja.N. and Jo.N. at their home in Fairhope. (R. 1297.)

Jo.N. told Inv. Peak that Duncan and Hicks got in a fight and that Hicks cut

off Duncan’s head and hands. (C. 915, 918.) Jo.N. demonstrated the type of

injuries he witnessed. (R. 1261.) Later that day, Jo.N. was interviewed again

at the Child Advocacy Center and reiterated his story. (C. 950–1042.) This

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time, he acted out the murder with action figures as well as demonstrating the

injuries on himself. (R. 1266.) The children were interviewed again on the

following day by Sgt. Terrie Hall, a specialist in forensic interviews of

children, at which time Ja.N. and Jo.N. drew diagrams depicting the injuries

they observed Hicks inflict on Duncan. (R. 1267, 1276–79, 2092.)

Information regarding Duncan’s injuries had not yet been released to the

public. (R. 1547.)

At Hicks’ trial, Ja.N., who was then nine years old, testified that he

could not remember the events from his earlier statements and that although

he remembered staying with his grandmother and giving statements, he could

not remember Hicks or Duncan being there at all. (R. 1183–86.) Ja.N. testified

that he thought Hicks had stabbed Duncan in the stomach and killed him.

(R. 1187.) He further testified that he remembered giving Inv. Peak his

statement, taking him through the house and yard, and showing him where

things happened, but he could not remember seeing it happen at the time of

his testimony. (R. 1192, 1198.)

Jo.N., then eight years old, testified that while staying with Norris, he

heard a noise and looked out the window to observe Hicks fighting with

Duncan in the backyard, and that Hicks hurt Duncan and hung him from a

chain in a tree. (R. 1200–25.) He also testified that he remembered giving

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statements to the police and at the Child Advocacy Center and that he made

drawings and told Inv. Peak the truth about what happened. (R. 1211.) Jo.N.

testified on cross-examination that law enforcement had not told him what to

say, but that they had told him to tell the truth, and that he was doing so. (R.

1223, 1227, 1230.) He was also crossed examined about the diagrams, stating

that he recalled “taking a crayon and putting some marks on a piece of

paper[.]” (R. 1215–16.)

Bradley Dennis, a canine handler, brought several experienced cadaver

dogs to the Norris house on April 30, 2012. (R. 1694.) Four dogs indicated

the odor of human decomposition inside the house. (R. 1727, 1733–34, 1737.)

Two indicated on the tree from which the children saw Hicks hang and stab

Duncan. (R. 1704–06, 1737.) Forensic analysis located blood on the linoleum

inside the house, but the quantity was insufficient to obtain an identifiable

DNA sample. (R. 2047.)

Numerous witnesses testified that Hicks had made incriminating

statements. Ray Johnston stated that during the investigation, Hicks appeared

worried and told Norris that Duncan was missing, and that Norris was “in it

up to here.” (R. 1359.) William Cook, Hicks’ nephew, said that he met Hicks

around 4 or 5 PM on Labor Day and that Hicks was pale, sweating, and looked

worried. (R. 1394, 1415.) Several weeks later, Hicks showed up at Cook’s

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house in the middle of the night, woke him by calling his cell phone, and asked

him to come outside. Hicks then asked Cook to lie to the police about where

he was going if they talked to him. (R. 1407.)

Walter James Porter, Jr., Hicks’s cellmate in late 2013, testified that

Hicks returned to their cell agitated after a meeting with his attorney and asked

him, “[H]ow can they use testimony of a child even if it’s true?” (R. 1865,

1971, 1984.) Hicks told Porter that the little boy had been nearby and saw

what happened, but the girl was inside watching television. (R. 1973.)

Sherman Dunning, Hicks’s cellmate in June 2015, testified that Hicks told

him that he had killed a man over a bad deal involving a utility trailer, that he

felt he had been cheated out of money, and that he was the last person to be

seen with his victim. (R. 1865, 1989–92.)

C.

The Facts Surrounding the Admission of the Out-of-Court

Statements.

During opening statements, Hicks’ trial counsel advised the jury that:

You’ll hear this testimony from these children, and that’s

. . . is the cornerstone and . . . the star witnesses for the

State are these two children who are going to, we believe

. . . they’re 8 years old now. They’re 4 and 5 at the time.

Two little boys who say that this happened.

Their statements were not obtained until April the 5th of

2012. Josh’s remains were discovered late October 2011.

So you’ve got close to six months . . . from the time that

Joshua’s remains were discovered until the time that these

children were interviewed by Detective Peak.

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You will – the children will give their testimony. But we

will also play the recorded interviews of the children and

you will get to hear firsthand how a child can be

manipulated to say what someone wants him to say. And

you will hear it for yourselves. And you’ll be the judge of

fact in this case whether to accept or reject the testimony

of these two children.

(R. 1029–30.) See also Hicks, 2019 WL 3070198, at *17.

“Before the admission of the statements, the parties agreed that the

statements should be admitted following the testimony of” Ja.N. and Jo.N.

Hicks, 2019 WL 3070198 at * 17. The record shows that, after lunch recess,

the prosecutor noted that “defense counsel brought up . . . during opening

statement . . . admitting the statements the children had given at the Child

Advocacy Center” (R. 1098), and argued that “since the defense raised this

argument about the children being manipulated and ideas being planted in

their mind, [the interviews] would be offer[ed] . . . for the purpose of showing

that that is not the case, not offering the content for the truth of the matter

asserted.” (R. 1103.) Further, in response to trial counsel’s hearsay objection

regarding the portion of A.N.’s out-of-court statement that referred to what

someone else had told her (R. 1100–01), the prosecution offered to redact this

portion and argued that “none of it [wa]s really offered for the truth of the

matter asserted. The children that we want to testify [Jo.N. and Ja.N.], are

testifying and we hope that they will tell the truth.” (R. 1102–03.)

10

The trial court subsequently instructed the jury that:

And those statements are not offered for the truth of the

matter that will be asserted in those statements and can’t

be considered by you as much. But you, as jurors, will give

[them] whatever weight and credibility as you determine

they deserve as it relates to any defenses or issues that may

have been or will be raised in this case.

In other words, listen to it and give it whatever weight and

credibility you think that it should receive. Okay?

Hicks, 2019 WL 3070198, at 17 (citing (R. 1249)).

REASONS FOR DENYING THE PETITION

The sole question before this Court is whether Hicks’ Sixth Amendment

right to confront witnesses was violated when out-of-court statements by child

witnesses Ja.N. and Jo.N. were admitted during trial. His Sixth Amendment

challenge, however, is raised for the first time in this Court and is thus waived.

Further, the petition fails to meet this Court’s requirement that there be

“compelling reasons” for granting certiorari. Sup. Ct. R. 10. Hicks offers no

genuine confrontation issue here, presents no split of authority, and thus fails

to establish any of the grounds for granting certiorari review. Accordingly,

this Court should deny the writ.

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I.

Hicks’ claim that his Sixth Amendment right to confront

witnesses was violated when prior out-of-court statements were

admitted during trial is not preserved for review.

Because Hicks did not challenge the admission of the out-of-court

statements by Ja.N. or Jo.N. on the ground that these statements violated his

Sixth Amendment right to confrontation under Crawford v. Washington, 541

U.S. 36 (2004), the claim that this testimony was improperly admitted and

considered at trial is waived. Although Hicks challenged the testimony of

Ja.N. and Jo.N., as well as the admission of their out-of-court statements in

state court2, Hicks did not argue that the admission of out-of-court statements

violated his Sixth Amendment right to confront witnesses recognized under

Crawford. See generally Adams v. Robertson, 520 U.S. 83, 90–91 (1997)

(“Requiring parties to raise issues below not only avoids unnecessary

adjudication in this Court by allowing state courts to resolve issues on statelaw grounds, but also assists [in] deliberations by promoting the creation of

2. On direct appeal, Hicks challenged Jo.N.’s competency to testify, Hicks,

2019 WL 3070198, at * 13, and challenged the admission of prior

statements by Jo.N. and Ja.N. on hearsay grounds, see id. at *16. Not until

his petition for certiorari review in the Alabama Supreme Court did Hicks

argue that “the improper admission of [Jo.N.’s] unsworn [in court]

testimony . . . violated [his] right[] to confront witnesses” (see Cert. Pet.

24), and that the nonverbal responses from Jo.N. and Ja.N. (i.e., the use of

diagrams) during their out-of-court interviews were inadmissible hearsay,

(see id. at 25).

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an adequate factual and legal record.”); Bd. of Directors of Rotary Int’l v.

Rotary Club of Duarte, 481 U.S. 537, 549–50 (1987) (“It is well settled that

this Court will not review a final judgment of a state court unless ‘the record

as a whole shows either expressly or by clear implication that the federal

claim was adequately presented in the state system.’”) (quotation omitted);

Webb v. Webb, 451 U.S. 493, 498–99 (1981) (“[This] Court has consistently

refused to decide federal constitutional issues raised . . . for the first time on

review of state court decision.”); California v. Green, 399 U.S. 149, 156

(1970) (noting that “merely because evidence is admitted in violation of a

long-established hearsay rule does not lead to the automatic conclusion that

confrontation rights have been denied”). The CCA thus never ruled on this

issue, and Hicks has waived this claim.

II.

Hicks’ claim is meritless.

Even assuming the question presented by Hicks was not waived, he has

not presented a genuine confrontation issue under Crawford. As this Court

explained in Michigan v. Bryant, 562 U.S. 344, 353 (2011), “Crawford

examined the common-law history of the confrontation right and explained

that ‘the principal evil at which the Confrontation Clause was directed was

the civil-law mode of criminal procedure, and particularly its use of ex parte

examinations as evidence against the accused.’” Thus, “[w]here testimonial

13

evidence is at issue . . . the Sixth Amendment demands what the common law

required: unavailability and a prior opportunity for cross-examination.”

Crawford, 541 U.S. at 68. In this case, the right to confront was satisfied when

Hicks was given the opportunity to confront and cross-examine Jo.N. and

Ja.N. at trial. There is no dispute that both Jo.N. and Ja.N. testified at trial.

There is also no dispute that both witnesses were subjected to crossexamination, including being asked about the circumstances surrounding the

out-of-court statements they made and what they recalled at the time of trial

about the murder. (See R. 1192–97, 1215–29.) The fact that they were unable

to recall facts contained in their prior statements did not render them

unavailable for purposes of the Confrontation Clause. As such, Hicks has not

presented a viable Crawford claim.

Hicks’ appears to argue that, even though both witnesses were

subjected to cross-examination at trial, their statements “could not be[]

subject[ed] to meaningful cross-examination at trial” because five years had

lapsed between trial and the time the statements were given and the

statements’ “reliability could not be assessed” given the witnesses’ young age.

(Cert. Pet. 17.) He has presented no authority to support his assertion.

Regardless, both the lapse of time and the age of the witnesses are factors to

consider when determining the weight and credibility accorded the evidence.

14

See United States v. Scheffer, 523 U.S. 303, 313 (1998) (“A fundamental

premise of our criminal trial system is that “the jury is the lie detector.”)

(citation omitted). Indeed, when reviewing Hicks’ claim on direct appeal that

Jo.N. was not competent or qualified to testify, the Alabama Court of Criminal

Appeals noted that “[t]he fact that [Jo.N.] was a child went to his credibility

and the weight to be given his testimony rather than to the admissibility of

testimony.” Hicks, 2019 WL 3070198, *16. The state appellate court further

found that the jury was properly instructed that “the statements were not to be

considered as substantive evidence, as Hicks requested, and the jury should

consider the statements in determining the credibility and weight to be given

the evidence.” Hicks, 2019 WL 3070198, at *17. “A jury is presumed to

follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000). Thus,

this Court should deny Hicks’ petition for writ of certiorari.

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CONCLUSION

For the reasons set forth above, this Court should deny Hicks’ petition

for writ of certiorari.

Respectfully submitted,

Steve Marshall

Alabama Attorney General

Edmund G. LaCour Jr.

Alabama Solicitor General

/s/Audrey Jordan

Audrey Jordan

Assistant Attorney General

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