Petition for Writ of Certiorari — Alabama, Petitioner v. Brandon Dewayne Sykes
Supreme Court briefJan 12, 2026
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APPENDIX
APPENDIX TABLE OF CONTENTS
Page
A. Opinion Reversing Sykes’s Conviction and
Death Sentence, Sykes v. State,
No. CR-22-0546, 2024 WL 1947829
(Ala. Crim. App. May 3, 2024) ...................... App.1a
B. Order Denying Rehearing,
Sykes v. State, No. CR-22-0546
(Ala. Crim. App. June 21, 2024) ................. App.44a
C. Order Quashing Writ,
Ex parte State (In re: Sykes v. State),
No. SC-2024-0395
(Ala. Sept. 12, 2025) ................................... App.45a
D. Order Granting State’s Petition for Certiorari,
Ex parte State (In re: Sykes v. State),
No. SC-2024-0395
(Ala. Feb. 20, 2025) ..................................... App.46a
E. State’s Application and Brief for Rehearing,
Sykes v. State, No. CR-22-0546
(Ala. Crim. App. filed May 17, 2024) .......... App.48a
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APPENDIX A
Rel: May 3, 2024
Notice: This opinion is subject to formal revision
before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the
Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 361043741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before
the opinion is published in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2023-2024
————
CR-2022-0546
————
BRANDON DEWAYNE SYKES
v.
STATE OF ALABAMA.
————
Appeal from Lamar Circuit Court
(CC-19-144)
————
PER CURIAM.
Brandon Dewayne Sykes appeals his capitalmurder convictions and his sentence of death. Sykes
was convicted of murder made capital for intentionally killing Keshia Nicole Sykes during a firstdegree burglary, see §13A-5-40(a)(4), Ala. Code 1975,
for intentionally killing Keshia Nicole Sykes during
the commission of a first-degree kidnapping, see
§ 13A-5-40(a)(1), Ala. Code 1975, and for intent-
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ionally killing Keshia Nicole Sykes during the
commission of a first-degree robbery, see § 13A-540(a)(2), Ala. Code 1975. The jury unanimously sentenced Sykes to death.
Facts
Sykes and Keshia were married from May 2012 to
May 2014, and they had two children together during
the marriage, a son named Bron and a daughter
named Brooklyn. The divorce had been contentious,
with Keshia being awarded custody of their children
amidst allegations that she had been abused by
Sykes. Sykes was unhappy with the court’s custody
determination, and he was particularly incensed by
Keshia’s living with and becoming engaged to
Drapher Bonman, who at the time had a pending
charge for a sex offense against a minor. Sykes had
already refused to return Bron to Keshia following a
visitation period, and he sought to obtain custody of
Brooklyn, as well. On February 8, 2015, Sykes
attempted to report to Lt. Steve Thompson of the
Vernon Police Department that Keshia had imperiled
their daughter’s safety by living with Bonman. Lt.
Thompson encouraged Sykes to take the information
to the attorney handling his domestic case. Sykes
agreed but stated to Lt. Thompson, “‘If the court
won’t help get my kids back, then I’ll do whatever I
have to do to get them back.’” (R. 896.)
On February 18, 2015, Keshia moved out of
Bonman’s house and into a house next door to her
parents. That night, though, Bonman spent the night
with Keshia in her new home. Around 7:20 a.m. the
following morning, Keshia’s mother, Kathleen Nalls,
called Keshia on her way to work. Keshia told her
mother that she and Brooklyn were watching television at home. Nalls testified that when she arrived
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at work, she noticed Sykes sitting in his truck in a
parking lot across the street. Nalls went inside and
peered through a window. She saw Sykes leave the
parking lot in his truck.
Nalls attempted to contact Keshia later that
morning but was unsuccessful, and Nalls learned
that Keshia had failed to pick up Nalls’s sister as
scheduled. Nalls telephoned a nephew who lived with
her and asked him to look for Keshia’s vehicle, a
silver Honda owned by Bonman that Keshia was
using at the time. Her nephew told Nalls that the
vehicle was not at Keshia’s house.
After work Nalls went to Keshia’s house. Upon
entering, Nalls saw that there was blood throughout
the residence, that a bedroom window had been
shattered, and that several of Keshia’s possessions,
such as her vehicle, wallet, and cell phone, were
missing. Nalls also noticed that a bedspread and
several rugs had been removed from the house.
Neither Keshia nor Brooklyn were at the home.
Chief Davy Eaves of the Vernon Police Department
responded to the emergency call about the state of
Keshia’s house. In the kitchen, Chief Eaves saw
bloodstains and smears throughout – on the back
door, on the floor, on the counter, and on the appliances. A rag covered in blood sat on the kitchen
table, and there was a mop in the corner that
appeared to have bloodstains. The mop was still
damp, according to Chief Eaves. Chief Eaves stated
that he accidentally bumped a chair in the kitchen
while taking pictures of the scene; when the chair
moved, one of the feet left a streak of blood on the
floor from blood that had pooled underneath it. Chief
Eaves testified that it “looked like something had
happened that somebody had tried to clean it up.” (R.
4a
743.) Chief Eaves noted a bloody footprint in the
living room along with substantial bloodstains on the
carpet in the house. Chief Eaves stated that blood
had “soaked completely through the carpet padding
and had pooled on the cement floor.” (R. 757.) Outside
the house, Chief Eaves photographed drops of blood
in the yard and recovered a small, frozen piece of
flesh lying in the grass. Subsequent genetic testing
revealed that the piece of flesh and much of the blood
found inside of and outside the house were from
Keshia. Also, a mixture of genetic profiles was found
on the handle of the bloodstained mop, and Sykes
could not be excluded as a potential contributor to the
minor component of this sample.
Brooklyn was located at the home of Sykes’s sister,
Lekeshia Sykes. Lekeshia told investigators that
Sykes had dropped off his son at her house around
6:15 a.m. that day and that Keshia had sent her a
text message around 11:15 a.m. asking her if she
could babysit Brooklyn. Lekeshia told investigators
that Keshia had arrived with Brooklyn about 15
minutes after she sent the text message.
Bonman arrived at Keshia’s house while officers
were assessing the scene. According to Bonman, he
had left Keshia’s house around 5:00 a.m. on February
19 and that, although he had attempted to call her
during the day, he had not spoken to her since he left
the house.
Sykes agreed to be interviewed at the Vernon
Police Department on the night of Keshia’s disappearance. Sykes told officers that he had not been in
contact with Keshia during the previous week. Sykes
stated that he had dropped off his son Bron with his
sister Lekeshia around 6:30 a.m. and then went to
work at Wheeler Automotive body shop, where he
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remained until 3:00 p.m. After work, he drove to
Lekeshia’s house and stayed until 5:00 p.m. with
Bron and Brooklyn. While Sykes was giving his statement, Lt. Thompson conducted a consensual search of
Sykes’s truck. Lt. Thompson scraped and collected
what appeared to be two droplets of dried blood in the
back of Sykes’s truck. Subsequent genetic testing
established that the blood was Keshia’s.
On February 23, Inv. Keith Cox with the Pickens
County District Attorney’s Office was notified by law
enforcement in Mississippi that Keshia’s vehicle may
have been located. Inv. Cox went to an address in
Lowndes County, Mississippi; two mobile homes,
which appeared to be vacant, sat on the property.
Keshia’s burned-out vehicle was found behind the
mobile home on the right. Inv. Cox found a flashlight
about 10 yards from the vehicle and three red gas
cans – one in front of the mobile home to the right
and two more inside the mobile home to the left.
Officers collected several cell phones from Sykes.
The data extracted from the cell phones, and the
people to whom that data led, challenged Sykes’s assertion to investigators that he had been at Wheeler
Automotive all day on February 19. For instance,
Sykes spoke on the phone several times with
Benjamin Scott, an acquaintance of Sykes, between
6:59 a.m. and 9:38 a.m. on February 19. Scott testified that he often performed odd jobs for Sykes in
exchange for drugs. On February 19, Sykes asked
Scott to photograph Bonman’s house and to then
come to Wheeler Automotive. Scott arrived at the
body shop and Sykes asked for a ride. Sykes directed
Scott on a circuitous route around town before
directing him to drive by the house of Keshia’s
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parents. Scott was instructed to stop his vehicle
approximately 100 yards beyond the house. Sykes
told Scott he would call him, and he then got out of
the vehicle, running to a wooded area next to
Keshia’s house.
1
Scott drove to his girlfriend’s house and waited. At
some point, Scott answered a telephone call from a
number he did not recognize. It was Sykes; Scott
testified that Sykes sounded as though he were out
of breath and that he could hear a child crying in
the background. Sykes told Scott to meet him at
Lekeshia’s house; Scott drove to the house but did not
stop. Scott explained: “I [didn’t] stop because I
thought he’s done kidnapped his baby or something.
And I didn’t want to get in the middle of [that].” (R.
1076-77.) Scott next heard from Sykes later that
evening. Scott went by Sykes’s house and picked up
methamphetamine as payment for his assistance that
day. Scott called him two days later to ask for
methamphetamine with a promise to pay Sykes later.
Sykes agreed, warning him, “‘You don’t want to get
on my bad side. That’s the first time I killed in a long
time.’” (R. 1081.)
Sykes’s telephone records indicated he called his
cousin Eric Blevins at 10:31 a.m. on February 19.
Sykes asked Blevins if he knew of a good body of
water in which to sink a vehicle. Sykes explained
that he wanted to dispose of a vehicle for insurance
purposes. Blevins testified that he told Sykes that he
did not know where to sink a car.
Luther Hackman, Sykes’s cousin who lived in
Columbus, Mississippi, received a call from Sykes at
1
Scott was not aware that Keshia had moved into the house
next door.
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10:56 a.m. on February 19. Sykes told him he “just
needed to park a car.” (R. 1134.) Sykes described the
vehicle as a “silver or gold Honda” that belonged to
“his wife’s boyfriend.” (R. 1135-36.) Sykes arrived
around noon and parked the Honda in Hackman’s
backyard, which was surrounded by a high fence.
Hackman then drove Sykes back to Wheeler Automotive.
Hackman saw Sykes the following day when Sykes
returned to retrieve the Honda. Sykes told Hackman
that “he wasn’t going to let them raise his kids ‘cause
whoever the guy was, he was a child molester and
[Keshia] was beating on his kids and . . . wasn’t
letting him see . . . the kids.” (R. 1140-41.) As Sykes
walked to the Honda, Hackman noticed that Sykes
was carrying a lighter and a small gas can. Sykes
asked Hackman to follow him in his own vehicle and
to pick him up after he abandoned the Honda;
Hackman agreed. Sykes left Hackman’s property and
drove for a few minutes before turning down a gravel
road. Hackman drove beyond the gravel road for a
few miles and then turned around. As he came back,
Sykes was walking down the road. Sykes got in
Hackman’s vehicle, and Hackman drove Sykes back
to Vernon. Geolocation tracking of Sykes’s cell phone
supported Hackman’s testimony regarding Sykes’s
trips to Columbus.
On March 29, 2015, Lekeshia sought out Lt.
Thompson to amend her prior statement that Keshia
had brought Brooklyn to her house on February 19:
“What actually happened that day was that
at around 9:00 a.m., [Sykes] showed up with
no prior notice with Brooklyn and gave me
Brooklyn and told me, ‘If anybody asks,
Keshia brought her.’ . . . At 11:15, I received
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a text message that asked, ‘Can you keep
Brooklyn?’ I didn’t recognize the number at
first, and sent back a text asking, ‘Who is
this?’, but then I remembered it was Keshia
Sykes’s old number . . . . Right after I sent
the text, [Sykes] called me from his 2300
phone number and said, ‘Just play along.’ . . .
I then sent a textback to Keshia’s phone that
said, ‘Yes, I’ll keep her,’ and a text came
back, ‘I’ll bring her in a minute.’ I don’t know
if [Sykes] was sending the text from Keshia’s
phone or if Keshia was with [Sykes] and
using the phone herself at this time. . . .
[A]round 5:00 p.m., [Sykes] told me to send
Keshia a text and ask about bringing
Brooklyn back to her.”
(R. 1119.) Keshia told Lt. Thompson that she realized
lying in her previous statement was “a very serious
matter” but that she had been afraid of the reaction
from her family had she been truthful.
Investigators were able to tie Sykes to Keshia’s
missing cell phone. A month or so after Keshia’s
disappearance, Nalls noticed activity on her cellular
billing statement from Keshia’s cell phone. Nalls
reported the activity, and this led investigators to
Christy Sanderson, who relinquished the cell phone
to investigators and stated that she had bought the
cell phone from Lois Gibson. Gibson testified that she
had acquired the cell phone on March 8 when she
visited Sykes’s house with a mutual friend. Gibson
saw several cell phones in the living room of Sykes’s
house, and, as she was leaving, she stole one – a
white, LG brand cell phone. Gibson then sold the cell
phone to Sanderson. Gibson later received a telephone call from an unknown number; a female on the
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line told Gibson that she was “‘the sister of the guy
whose house you stole the phone from. It’s my phone,
and I want it back.’” (R. 1269.) Gibson also received
text messages demanding that the cell phone be
returned; these text messages were sent from a cell
phone law enforcement eventually collected from
Sykes. At trial, Gibson identified Keshia’s cell phone
as the cell phone that she had stolen from Sykes.
Sykes was arrested on April 9, 2015. The next day,
Sykes gave a statement to Agent Andy Jones with
the Alabama Bureau of Investigation. Sykes told
Agent Jones that investigators had a misapprehension about Keshia’s disappearance. Sykes explained that at the time of his divorce from Keshia, he
“was running money and drugs for the cartel out of
Memphis and sometimes he would loan the car to
them, sometimes he would drive it himself.” (R.
1441.) Sykes stated Keshia was embittered about not
being awarded Sykes’s vehicle in the divorce proceedings. On one occasion when Keshia was aware of
cartel members using Sykes’s vehicle, Keshia
spitefully contacted the Memphis office of the Drug
Enforcement Administration and provided federal
agents with the location of Sykes’s vehicle. Sykes told
Agent Jones that Keshia’s tip led to the arrest of 3
cartel members and the seizure of 40 pounds of
marijuana, 2 bricks of cocaine, $280,000, and his
vehicle.2
According to Sykes, he and Keshia soon afterwards
resumed their relationship. The rekindled romance
ended in January 2015, though, and Keshia began
living with Bonman. Agent Jones continued:
2
The Drug Enforcement Administration had no record of this
alleged arrest and seizure.
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“[Sykes] said that Keshia had an addiction to
[methamphetamine]; and before she left
Sykes, she found a flip phone that he had
that he used strictly for making deals with
the cartel in Memphis.
“He said he had it hid inside a stuffed
animal in the kids’ room and Keshia had
found it and took it with her when she
moved in with Bonman[. Keshia] used this
flip phone to set up a purchase of [methamphetamine] with the cartel in Jasper and
Bonman provided her with some currency
and some – counterfeit currency to make the
purchase.
“And [Sykes] said that Keshia and Bonman
put the actual real currency on top and the
fake currency on the bottom, made the purchase of the drugs and by the time the cartel
found out that it was fake currency, that
she’d already left with the drugs.
“So [Sykes] said he got a call from a cartel
member telling [Sykes] he owed [the cartel
member] $20,000.”
(R. 1442-43.) Sykes denied any responsibility for
Keshia’s actions, and, according to Sykes, the cartel
“wanted their money or her.” (R. 1443.) Sykes offered
them Keshia. Sykes admitted to Agent Jones, “‘I led
them down [to Keshia’s house] but I didn’t do nothing
to her.” (R. 1443.) Sykes stated that the cartel’s plan
was to “kidnap her, take her to Memphis and use her
in some kind of sex ring.” Sykes told Agent Jones that
he gave cartel members the location of the abandoned
mobile homes in Mississippi as a place where
Keshia’s vehicle could be burned; Sykes could not
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explain why geolocation tracking of his cell phone
placed him in the vicinity of the burned vehicle.
Sykes initially denied to Agent Jones being taken
anywhere by Scott on the day Keshia disappeared but
amended his statement once he was presented with
his cell-phone records. Sykes stated that Scott did
pick him up at work and drop him off near Keshia’s
house, but that instead of going to her house, he ran
to a nearby church to rendezvous with cartel members. At that meeting, Sykes told them Keshia was at
her house along with her daughter; Sykes instructed
them to bring his daughter Brooklyn to him at his
house.
Agent Jones confronted Sykes with the presence of
blood in his truck. Sykes speculated that the cartel
had placed the blood in his truck to incriminate him.
Sykes also told Agent Jones that he had heard there
was a lot of blood inside Keshia’s house. Sykes stated
that “he would not doubt that she actually cut herself
to make it look like she’d got hurt and that he
wouldn’t be surprised if she resurfaced in Vernon
after she sobered up.” (R. 1449.)
Agent Jones spoke to Sykes five days later, on
April 15, at Sykes’s request. Sykes told Agent Jones
that if the district attorney was “willing to offer him a
deal, that he would be willing to cooperate and give
Keshia’s family some closure.” (R. 1452.) Sykes added
that if no offer were made, the district attorney would
“just have to do it the hard way.” (R. 1452.)
Jacob Wiley was incarcerated with Sykes at the
Pickens County Jail in May 2017. Wiley had known
Sykes for approximately 12 years by that point,
having first met him at a hunting and fishing club.
Wiley testified that the two spoke every day while
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they were in jail and that the conversations
eventually turned toward the reasons for their
incarcerations. Sykes told Wiley that he was in jail on
a capital-murder charge. Sykes did not expressly
identify his victim but did describe the actions that
gave his rise to his charge. Sykes explained to Wiley
that he had “beat her up and threw her in his truck”
and that “he took her and dumped her” “where we
used to go fishing.” (R. 1418.) Wiley testified that the
two used to fish the Sipsey River. Sykes told Wiley
that he had dumped the body “down past the boat
launch” and that he had tied the body with ratchet
straps and weighted it down with cinder blocks.
Despite search efforts in the area described by Wiley,
Keshia’s body was not recovered.
Standard of Review
Rule 45A, Ala. R. App. P., as amended effective
January 12, 2023, provides:
“In all cases in which the death penalty
has been imposed, the Court of Criminal
Appeals may, but shall not be obligated to,
notice any plain error or defect in the
proceedings under review, whether or not
brought to the attention of the trial court,
and take appropriate appellate action by
reason thereof, whenever such error has or
probably has adversely affected the
substantial right of the appellant.”
This Court will continue to review the entire record
for plain error in all cases in which the death penalty
has been imposed, although our analysis on issues
reviewed for plain error may not be as extensive as
has been this Court’s practice historically. Iervolino v.
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State, [Ms. CR-21-0283, Aug. 18, 2023] ___ So. 3d ___,
___ (Ala. Crim. App. 2023).
“‘The standard of review in reviewing a
claim under the plain-error doctrine is
stricter than the standard used in reviewing
an issue that was properly raised in the trial
court or on appeal.’ Hall v. State, 820 So. 2d
113, 121 (Ala. Crim. App. 1999), aff’d, 820
So. 2d 152 (Ala. 2001). Plain error is ‘error
that is so obvious that the failure to notice it
would seriously affect the fairness or
integrity of the judicial proceedings.’ Ex
parte Trawick, 698 So. 2d 162, 167 (Ala.
1997), modified on other grounds, Ex parte
Wood, 715 So. 2d 819 (Ala. 1998). ‘To rise to
the level of plain error, the claimed error
must not only seriously affect a defendant’s
“substantial rights,” but it must also have an
unfair prejudicial impact on the jury’s
deliberations.’ Hyde v. State, 778 So. 2d 199,
209 (Ala. Crim. App. 1998), aff’d, 778 So. 2d
237 (Ala. 2000). ‘The plain error standard
applies only where a particularly egregious
error occurred at trial and that error has or
probably has substantially prejudiced the
defendant.’ Ex parte Trawick, 698 So. 2d at
167. ‘[P]lain error must be obvious on the
face of the record. A silent record, that is a
record that on its face contains no evidence
to support the alleged error, does not
establish an obvious error.’ Ex parte Walker,
972 So. 2d 737, 753 (Ala. 2007). Thus,
‘[u]nder the plain-error standard, the appellant must establish that an obvious, indisputable error occurred, and he must establish that the error adversely affected the
14a
outcome of the trial.’ Wilson v. State, 142 So.
3d 732, 751 (Ala. Crim. App. 2010). ‘[T]he
plain error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in which
a miscarriage of justice would otherwise
result.”‘ United States v. Young, 470 U.S. 1,
15, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985)
(quoting United States v. Frady, 456 U.S.
152, 163 n.14, 102 S. Ct. 1584, 71 L. Ed. 2d
816 (1982)).”
DeBlase v. State, 294 So. 3d 154, 182-83 (Ala. Crim.
App. 2018).
Analysis
I.
During rebuttal closing arguments, the prosecutor
stated the following: “There’s only two people in the
world that know what happened in that house. One
of them’s dead, and the other one is sitting right over
there at the end of that table. (Indicating).” (R. 1619.)
Sykes asserts that the argument was a direct
comment on his decision not to testify. Sykes did not
object to the comment; he argues, though, that the
circuit court’s failure to take prompt curative action
constituted plain error. This Court agrees.
In all criminal prosecutions, the accused shall not
be compelled to give evidence against himself.
Alabama Constitution, Art. I, § 6. The right against
self-incrimination is likewise enshrined in the
Alabama Code:
“On the trial of all indictments, complaints
or other criminal proceedings, the person on
trial shall, at his own request, but not
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otherwise, be a competent witness, and his
failure to make such a request shall not
create any presumption against him nor be
the subject of comment by counsel. If the
district attorney makes any comment
concerning the defendant’s failure to testify,
a new trial must be granted on motion filed
within 30 days from entry of the judgment.”
§ 12-21-220, Ala. Code 1975. “‘[O]nce a defendant
chooses not to testify at his trial the exercise of that
choice is not subject to comment by the prosecution.’”
Ex parte Davis, 718 So. 2d 1166, 1173 (Ala. 1998)
(quoting Wherry v. State, 402 So. 2d 1130, 1133 (Ala.
Crim. App. 1981)).
“Comments by a prosecutor on a defendant’s failure to testify are highly prejudicial
and harmful, and courts must carefully
guard against a violation of a defendant’s
constitutional right not to testify. Whitt [v.
State, 370 So. 2d 736, 739 (Ala. 1979)]; Ex
parte Williams, 461 So. 2d 852, 853 (Ala.
1984); see Ex parte Purser, 607 So. 2d 301
(Ala. 1992). This Court has held that
comments by a prosecutor that a jury may
possibly take as a reference to the defendant’s failure to testify violate Art. I, § 6, of
the Alabama Constitution of 1901. Ex parte
Land, 678 So. 2d 224 (Ala.), cert. denied, 519
U.S. 933, 117 S. Ct. 308, 136 L. Ed. 2d 224
(1996); Ex parte McWilliams, 640 So. 2d
1015 (Ala. 1993); Ex parte Wilson, [571 So.
2d 1251, 1261 (Ala. 1990)]; Ex parte Tucker,
454 So. 2d 552 (Ala. 1984); Beecher v. State,
294 Ala. 674, 320 So. 2d 727 (1975).
Additionally, the Fifth and Fourteenth
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Amendments of the United States Constitution may be violated if the prosecutor
comments upon the accused’s silence. Griffin
v. California, 380 U.S. 609, 85 S. Ct. 1229,
14 L. Ed. 2d 106 (1965); Ex parte Land,
supra; Ex parte Wilson, supra. Under federal
law, a comment is improper if it was ‘ “
‘manifestly intended or was of such a
character that a jury would naturally and
necessarily take it to be a comment on the
failure of the accused to testify’”‘ United
States v. Herring, 955 F.2d 703, 709 (11th
Cir.), cert. denied, 506 U.S. 927, 113 S. Ct.
353, 121 L. Ed. 2d 267 (1992) (citations
omitted); Marsden v. Moore, 847 F.2d 1536,
1547 (11th Cir.), cert. denied, 488 U.S. 983,
109 S. Ct. 534, 102 L. Ed. 2d 566 (1988);
United States v. Betancourt, 734 F.2d 750,
758 (11th Cir.), cert. denied, 469 U.S. 1021,
105 S. Ct. 440, 83 L. Ed. 2d 365 (1984). The
federal courts characterize comments as
either direct or indirect, and, in either case,
hold that an improper comment may not
always mandate reversal.
“Consistent with this reasoning, Alabama
law distinguishes direct comments from indirect comments and establishes that a direct
comment on the defendant’s failure to testify
mandates the reversal of the defendant’s
conviction, if the trial court failed to promptly cure that comment. Whitt v. State, supra;
Ex parte Yarber, [375 So. 2d 1231, 1233 (Ala.
1979)]; Ex parte Williams, supra; Ex parte
Wilson, supra. On the other hand, ‘covert,’ or
indirect, comments are construed against
the defendant, based upon the literal con-
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struction of Ala. Code 1975, § 12-21-220,
which created the ‘virtual identification
doctrine.’ Ex parte Yarber, 375 So. 2d at
1234. Thus, in a case in which there has
been only an indirect reference to a defendant’s failure to testify, in order for the
comment to constitute reversible error, there
must have been a virtual identification of the
defendant as the person who did not become
a witness. Ex parte Yarber, 375 So. 2d at
1234; Ex parte Williams, supra; Ex parte
Wilson, supra; Ex parte Purser, supra.”
Ex parte Brooks, 695 So. 2d 184, 188-89 (Ala. 1997)
(footnote omitted).
Our decision here is controlled by the opinions of
the Alabama Supreme Court in Whitt v. State, 370
So. 2d 736 (Ala. 1979), and Ex parte Wilson, 571 So.
2d 1251 (Ala. 1990). In Whitt, the defendant had been
indicted for first-degree murder arising out of a
fatality in an automobile collision. The defendant was
ultimately convicted of second-degree murder and
was sentenced to 25 years in prison. This Court
affirmed the defendant’s conviction and sentence.
The Alabama Supreme Court granted the defendant’s
petition for a writ of certiorari to consider whether
the prosecutor had made an impermissible comment
on the defendant’s failure to testify.
The defendant in Whitt neither testified nor called
any witnesses on his behalf. During closing arguments, the prosecutor remarked: “The only person
alive today that knows what happened out there that
night is sitting right there.” Defense counsel objected
to the comment and moved for a mistrial on the
ground that the prosecutor had commented on the
defendant’s failure to testify.
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The trial court denied the defendant’s motion and
instructed the jury: “I am going to instruct the jury
though to disregard the last remark in regard to that.
The statement made by the District Attorney in his
argument is only his inferences from the evidence,
but I want you to disregard the last remark, just
what he said.” Whitt, 370 So. 2d at 737.
This Court held that the remark “was ‘argument in
kind’ to rebut remarks by petitioner’s counsel, that it
was only an ‘indirect’ reference to petitioner’s failure
to testify, and, finally, that any possible reference to
petitioner was ‘eradicated’ by the court’s instructions.” Whitt, 370 So. 2d at 738. The Supreme Court
rejected each holding.
“We must disagree and hold that the remark
was not an ‘argument in kind,’ was not an
‘indirect’ reference to the petitioner’s failure
to testify, and was not ‘eradicated’ by the
court’s instructions.
“The comment ‘The only person alive today
that knows what happened out there that
night is sitting right there’ is almost
identical to the comment ‘“No one took the
stand to deny it”‘ held to be a direct comment
on the defendant’s failure to testify and held
to be reversible error in Beecher [v. State],
294 Ala. 674, 320 So. 2d 727 (1975) (per
Justice Embry). The comment is very close to
the comment made in Warren v. State, 292
Ala. 71, 288 So. 2d 826 (1973). There, this
Court held (per Justice McCall) that the
argument ‘“The only one that said he didn’t
sell it (marijuana) was the little brother’ was
also a direct comment on the failure of the
defendant to testify and constituted
19a
reversible error. It is thus that we must
conclude, based on the holding and rationale
of those two cases, that the comment by the
district attorney in this case was a direct
comment on the failure of the defendant to
testify and constituted error to reverse.
“We cannot agree with the Court of
Criminal Appeals that this comment was
‘argument in kind’ to rebut remarks made by
petitioner’s counsel. It seems self-evident
that it cannot be ‘argument in kind’ when we
do not have the defense counsel’s argument
to which this comment is said to reply. The
record does not contain the closing
arguments in this case.
“. . . .
“This brings us to a consideration of the
last ground given by the Court of Criminal
Appeals for finding that the second comment
did not constitute reversible error, namely,
whether the trial court’s instructions to the
jury cured such impermissible comment.
“We cannot agree that the trial court’s
instructions in this case were sufficient to
cure the harmful effect of the district
attorney’s comment. The court stated:
“‘I am going to instruct the jury
though to disregard the last remark in
regard to that. The statement made by
the District Attorney in his argument is
only his inferences from the evidence,
but I want you to disregard the last
remark, just what he said. I will deny
your motion.’
20a
“In seeking to instruct the jury to
disregard the remark, we think that the trial
court’s instructions fell short of what is
required to effectively erase the highly
prejudicial and harmful nature of such a
comment.
“. . . .
“We suggest that, at a minimum, the trial
judge must sustain the objection, and should
then promptly and vigorously give appropriate instructions to the jury. Such instructions should include that such remarks are
improper and to disregard them; that statements of counsel are not evidence; that
under the law the defendant has the privilege to testify in his own behalf or not; that
he cannot be compelled to testify against
himself; and, that no presumption of guilt or
inference of any kind should be drawn from
his failure to testify. With appropriate
instructions, we hold that the error of the
prosecutor’s remarks will be sufficiently
vitiated so that such error is harmless
beyond a reasonable doubt. U. S. v. Brown,
546 F.2d 166 (5th Cir. 1977); Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L.
Ed. 2d 705 (1967); Beecher v. State, supra.”
370 So. 2d at 738 (emphasis in original.)
The Alabama Supreme Court was confronted with
a similar remark by the prosecutor in Ex parte
Wilson, supra. In Wilson, the defendant had been
convicted of three counts of capital murder and
sentenced to death. Following this Court’s affirmance
of the defendant’s convictions and sentence, the
21a
Alabama Supreme Court granted the defendant’s
petition for a writ of certiorari to consider, among
other things, the propriety of the following argument
made during the State’s rebuttal in closing arguments: “‘I can’t tell you what that woman went
through during that night, because there is only one
eyewitness, and he ain’t going to tell you. I wish I
could tell you all of that. I can give you this evidence
that these officers have worked meticulously to
gather up . . . .’” Wilson, 571 So. 2d at 1259. The
defendant moved for a mistrial, asserting that the
argument was “‘the equivalent of saying that this
defendant has not testified.’” Id. The State countered
that the remark was a reasonable inference from the
evidence, specifically, a taped confession given by the
defendant. The trial court denied the defendant’s
motion for mistrial, and the prosecutor resumed his
rebuttal: “When I say that, I mean this defendant
didn’t tell you on that tape recording that he gave
Alvin Kidd as to what she went through . . . .” Id. The
trial court gave a lengthy instruction after closing
arguments had concluded regarding a defendant’s
right not to testify.
The State argued before the Alabama Supreme
Court that the prosecutor’s “comment was not on the
defendant’s failure to testify, . . . that his explanatory
sentence ‘made it clear to the jury that he was
referring to the defendant’s sketchy incriminating
statements, which had been admitted into evidence,’”
and that the jury would not have reasonably
understood the remark to be a comment on the
defendant’s failure to testify. Wilson, 571 So. 2d at
1260. The Court was unpersuaded. Relying heavily
on Whitt, the Alabama Supreme Court held the
remark combined with the trial court’s failure to
promptly cure the remark to be reversible error:
22a
“The statements in this case do not fall
within the bounds set forth in Ex parte
Dobard, [435 So. 2d 1351 (Ala. 1983)], or
Beecher [v. State, 294 Ala. 674, 320 So. 2d
727 (1975)].[3] The district attorney clearly
did not comment generally on the State’s
evidence standing uncontradicted. His statement falls well outside the permitted range
available to a district attorney in closing and
is far more prejudicial than those statements
deemed to be indirect comments in Ex parte
Williams, [461 So. 2d 852 (Ala. 1984)]. See
also Stain v. State, 494 So. 2d 816 (Ala.
Crim. App. 1986) (court unable to distinguish comment from that in Williams)
....
“. . . .
“We find here that the comment made by
the district attorney was a direct comment
on the defendant’s failure to testify and
violated the defendant’s rights as found
under the United States Constitution, the
Constitution of Alabama of 1901, and Ala.
Code (1975), § 12-21-220. We cannot agree
that the comment made by the district
attorney could have been understood by the
jury only as a reference to the defendant’s
‘sketchy incriminating statement.’”
Wilson, 571 So. 2d at 1263-65.
3
In those cases, the Alabama Supreme Court held that,
"[w]here the State's evidence does stand uncontradicted, the
prosecutor does have the right to point this out to the jury."
Beecher, 294 Ala. at 682, 320 So. 2d at 734.
23a
The remark in the instant case – “There’s only two
people in the world that know what happened in that
house. One of them’s dead, and the other one is
sitting right over there at the end of that table.
(Indicating).” – closely parallels the remarks in Whitt
and Wilson. The State asserts that, when viewed in
context, the challenged remark was merely a response to the argument of defense counsel during his
closing argument that there were gaps in the State’s
evidence. This Court finds the State’s purported
justification unavailing. Here, the prosecutor asserted to the jury that there were only two people who
knew what had happened to Keshia – Keshia, who
was dead and unable to testify, and Sykes. The
prosecutor’s remark “called the jury’s attention to the
fact that [Sykes], the only eyewitness who could have
taken the stand, did not testify.” Powell v. State, 631
So. 2d 289, 291-92 (Ala. Crim. App. 1993) (emphasis
in original).
In light of the holdings of the Alabama Supreme
Court in Whitt and Wilson, this Court holds that the
remark was a direct comment on Sykes’s decision not
to testify. Further, because the circuit court failed to
take prompt curative action, this Court must reverse
Sykes’s convictions and sentence of death. See Ex
parte Wilson, 571 So. 2d at 1261 (“In a case where
there has been a direct reference to a defendant’s
failure to testify and the trial court has not acted
promptly to cure that comment, the conviction must
be reversed.”).
II.
Although this Court is reversing Sykes’s convictions and sentence of death based on the prosecutor’s
direct comment on Sykes’s decision not to testify in
conjunction with the circuit court’s failure to take
24a
prompt curative action, this Court must address an
issue that may arise in a possible retrial – the
appropriate capital-sentencing scheme to be applied
should Sykes again be convicted of capital murder.
Act No. 2017-131, Ala. Acts 2017, amended §§ 13A5-45, 13A-5-46, and 13A-5-47, Ala. Code 1975, to,
among other things, remove the circuit court’s
authority to override a jury’s sentencing verdict,
thereby making the jury the final sentencing
authority in capital cases. Section 13A-5-47.1, Ala.
Code 1975, states that this new capital-sentencing
scheme “shall apply to any defendant who is charged
with capital murder after April 11, 2017, and shall
not apply retroactively to any defendant who has
previously been convicted of capital murder and
sentenced to death prior to April 11, 2017.”
On April 9, 2015, Sykes was arrested on suspicion
of kidnapping Keshia. That charge was elevated in
May 2015 when Sykes was indicted in case no. CC15-208 on two counts of murder made capital for
intentionally killing Keshia Nicole Sykes during the
commission of a first-degree burglary and for intentionally killing Keshia Nicole Sykes during the
commission of a first-degree kidnapping. However, in
April 2019, Sykes was reindicted in case no. CC-19144 on three counts of murder made capital for
intentionally killing Keshia Nicole Sykes during the
commission of a first-degree burglary, for intentionally killing Keshia Nicole Sykes during the commission of a first-degree kidnapping, and for intentionally killing Keshia Nicole Sykes during the commission of a first-degree robbery. It was on this
indictment that Sykes was tried and convicted of
three counts of capital murder.
25a
On February 22, 2021, Sykes moved the circuit
court to declare that, given the date of his
reindictment, the new capital-sentencing scheme
should apply to him. (C. 67-68.) At a pretrial hearing,
the State agreed with Sykes’s motion. The circuit
court granted Sykes’s motion on March 5, 2021. (C.
69.)
The new capital sentencing scheme is triggered by
the date on which a defendant is charged with capital
murder. Sykes was first charged with capital murder
in the death of Keshia in May 2015, well before the
effective date of the new capital-sentencing scheme –
April 11, 2017. See Rule 1.4(b), Ala. R. Crim. P.
(“‘Charge’ means a complaint, indictment, or information.”). Therefore, the prior capital-sentencing
scheme is applicable to Sykes, should he again be
convicted of capital murder.
Conclusion
The prosecutor made a direct comment during
guilt-phase closing arguments on Sykes’s decision not
to testify and the circuit court failed to take prompt
curative action to correct the error. This constituted
plain error. Therefore, this Court must reverse
Sykes’s convictions and sentence of death and
remand the case for a new trial.
REVERSED AND REMANDED.
Kellum and Cole, JJ., concur. Minor, J., concurs in
the result, with opinion. Windom, P.J., dissents, with
opinion. McCool, J., recuses himself.
26a
MINOR, Judge, concurring in the result.
I concur in the result. I write separately to explain
why I think that the capital-sentencing scheme
enacted by Act No. 2017-131, Ala. Acts 2017, may not
apply to Brandon Dewayne Sykes’s charges.
As the main opinion explains, law enforcement
arrested Sykes in April 2015 on suspicion of
kidnapping Keshia Nicole Sykes. According to a
motion Sykes filed and the State’s appellate brief, the
grand jury indicted Sykes in May 2015 in case no.
CC-15-208 for two counts of murder made capital
for intentionally killing Keshia during the commission of a first-degree burglary and a first-degree
kidnapping.4 (C. 67; State’s brief, p. 1.) In April 2019,
the grand jury indicted Sykes in case no. CC-19-144
on three counts of capital murder: intentionally
killing Keshia during the commission of a first-degree
burglary, intentionally killing Keshia during the
commission of a first-degree kidnapping, and intentionally killing Keshia during the commission of a
first-degree robbery. (C. 24-26.)
The main opinion also explains:
“Act No. 2017-131, Ala. Acts 2017, amended
§§ 13A-5-45, 13A-5-46, and 13A-5-47, Ala.
Code 1975, to, among other things, remove
the circuit court’s authority to override a
jury’s sentencing verdict, thereby making
the jury the final sentencing authority in
capital cases. Section 13A-5-47.1, Ala. Code
1975, states that this new capital-sentencing
scheme ‘shall apply to any defendant who is
charged with capital murder after April 11,
4
The record does not include the 2015 indictment.
27a
2017, and shall not apply retroactively to
any defendant who has previously been
convicted of capital murder and sentenced to
death prior to April 11, 2017.’”
___ So. 3d at ___.
In her dissenting opinion, Presiding Judge Windom
describes the 2019 indictment as nullifying the
original 2015 indictment, citing Hulsey v. State, 196
So. 3d 342, 353 (Ala. Crim. App. 2015), and Ex parte
Russell, 643 So. 2d 963, 965 (Ala. 1994).
In Hulsey, the grand jury returned four indictments against Hulsey. He was tried and convicted on
the fourth indictment, which charged him with
reckless endangerment and first-degree unlawful
manufacturing of a controlled substance. Hulsey was
not charged with first-degree unlawful manufacturing of a controlled substance until the fourth
indictment, which was returned beyond the statute
of limitations. On appeal, this Court held that
“[b]ecause the previous indictments did not charge
first-degree unlawful manufacture of a controlled
substance, none of them tolled the statute of
limitations as to that offense.” 196 So. 3d at 352-53.
The State argued, in the alternative, that Hulsey
should be convicted of the lesser-included offense of
second-degree unlawful manufacture of a controlled
substance. This Court noted that the second indictment, which was returned within the statute of
limitations, charged Hulsey with that offense and
thus tolled the statute of limitations. But because the
third indictment was defective in charging Hulsey
with that offense, the third indictment did not toll
the statute of limitations. Thus, this Court held that
Hulsey could not be guilty of second-degree unlawful
28a
manufacture of a controlled substance. 196 So. 3d at
355-56.
Russell involved a different but also complicated
procedure:
“On October 3, 1991, an automobile driven
by Willie Samuel Russell, Jr., collided in
Tuscaloosa, Alabama, with an automobile
owned and operated by the City of Tuscaloosa Police Department. Russell was promptly arrested, and prosecutions were initiated
pursuant to (1) a Uniform Traffic Ticket and
Complaint (‘UTTC’) charging him with the
misdemeanor offense of driving while under
the influence of alcohol (‘DUI); (2) a UTTC
charging him with the misdemeanor offense
of driving a vehicle while his driver’s license
was revoked (‘DRL’); and (3) a complaint
signed by Officer S.L. Stimpson charging
him with the felony offense of leaving the
scene of an accident involving personal
injury, as prohibited by Ala. Code 1975,
§§ 32-10-1(a) and -6.
“On November 18, 1991, a Tuscaloosa
County grand jury considered and rejected
the felony count, indicting Russell, instead,
on the charge of ‘attempt[ing] to fail to . . .
stop at the scene of the . . . accident’—a
misdemeanor offense as defined by § 13A-42(d)(4). In February 1992, Russell was
convicted on the charges of DUI and DRL.
He appealed those convictions to the
Tuscaloosa County Circuit Court.
“By October 23, 1992, Russell had been
tried in the Tuscaloosa County District
29a
Court and there acquitted of the misdemeanor offense charged in the indictment.
On that date, he moved the circuit court to
dismiss the cases involving the DUI and
DRL charges, contending that the court
lacked subject-matter jurisdiction of the
appeals in those cases. The circuit court
agreed with Russell, and, on March 9, 1993,
dismissed those cases.
“The City of Tuscaloosa (‘the City’) petitioned the Court of Criminal Appeals for a
writ of mandamus directing the circuit court
judge to vacate his judgment of dismissal
and reinstate the cases. The Court of
Criminal Appeals, with an opinion, granted
the City’s petition. Ex parte City of
Tuscaloosa, 636 So. 2d 692 (Ala. Crim. App.
1993).
“In seeking from this Court a writ of
mandamus directing the Court of Criminal
Appeals to rescind its writ of mandamus,
Russell contends that the circuit court’s
action was mandated by Ala. Code 1975,
§ 12-11-30(2), which, he insists, vested in the
circuit court exclusive original jurisdiction of
the DUI and DRL cases. Although the
parties invite us to discuss a number of
interesting questions tangentially related to
this case, we confine our attention to the
issue that, in our view, resolves this dispute,
namely, the effect of the grand jury’s
indictment on the offense charged in Officer
Stimpson’s complaint, within the context of
§ 12-11-30(2).
30a
“Section 12-11-30(2) provides in pertinent
part: ‘The circuit court shall have exclusive
original jurisdiction of all felony prosecutions
and of misdemeanor or ordinance violations
which are lesser included offenses within a
felony charge or which arise from the same
incident as a felony charge . . . .’ (Emphasis
added.) See also Ala. R. Crim. P. 2.2(a).
Russell contends that the charge made in
Officer Stimpson’s complaint, and on which
the arrest warrant was based, constituted a
‘felony charge’ within the meaning of this
section. He insists that the DUI and DRL
charges ‘[arose] from the same incident as
[the] felony charge’ and, consequently, that
the circuit court, rather than the municipal
court, had exclusive original jurisdiction of
the DUI and DRL charges. He then reasons
that because the circuit court had exclusive
original jurisdiction, that court did not
acquire jurisdiction on appeal after the cases
had been, erroneously he contends, prosecuted in the municipal court.
“Russell’s reasoning is based on the
proposition that the complaint charging the
commission of a felony offense irrevocably
invoked the exclusive original jurisdiction of
the circuit court. In effect, he insists that the
grand jury’s action, which reduced the felony
charged in the complaint to a misdemeanor,
was inconsequential. For the following
reasons, we disagree with this proposition.
“A complaint instituting a criminal prosecution and authorizing an arrest is ‘superseded’ by the subsequent return of an
31a
indictment addressed to the same set of
operative facts. See Ala. R. Crim. P. 7.6(a).
In such cases, a party is ‘tried on the charge
in the indictment and not on the warrant of
arrest or its supporting affidavit.’ Henry v.
State, 57 Ala. App. 383, 388, 328 So. 2d 634,
638 (Ala. Crim. App. 1976) (emphasis
added). Cf. Wilson v. State, 99 Ala. 194, 195,
13 So. 427, 427 (1893) (an indictment returned in proper form cures defects in an
antecedent charging instrument); Toney v.
State, 15 Ala. App. 14, 16, 72 So. 508, 509
(1916) (same); cf. also Hansen v. State, 598
So. 2d 1, 2 n.1 (Ala. Crim. App. 1991) (an
indictment supersedes antecedent indictments); Broadnax v. State, 54 Ala. App. 546,
549, 310 So. 2d 265, 268 (Ala. Crim. App.
1975).
“Under these rules, the complaint, the original instrument charging the felony of
leaving the scene of an accident, was
superseded by the subsequent indictment
containing the misdemeanor charge of
attempting to leave the scene of an accident.
In other words, the original charging
instrument was nullified by the indictment,
which was returned on November 18, 1991.
When Russell was tried in the municipal
court in February 1992 for DUI and DRL, no
felony charge was pending; therefore, the
exclusivity provision in § 12-11-30(2) was not
triggered. The circuit court clearly possessed
jurisdiction over those two cases when
Russell appealed for a trial de novo, and it
erred in dismissing them.”
32a
643 So. 2d at 964-65.
I am not persuaded that Hulsey or Russell are
controlling. First, there is no issue about the statute
of limitations. Second, there is no issue about which
court had jurisdiction over the capital-murder
charges. Finally, there is no question that Sykes was
charged with capital murder when he was arrested
and indicted in 2015, and it appears that the 2015
indictment included two of the three capital murder
charges included in the 2019 indictment.
Act No. 2017-131, Ala. Acts 2017, applies to all
defendants charged after April 11, 2017. It does not
expressly state that it applies to defendants charged
before April 11, 2017, but not convicted and sentenced to death until after that date. This Court,
however, has affirmed the convictions and death
sentences of defendants charged before April 11,
2017, but convicted and sentenced after that date.
See, e.g., Dearman v. State, [Ms. CR-18-0060, Aug. 5,
2022] ___ So. 3d ___ (Ala. Crim. 2022); Young v.
State, 375 So. 3d 813 (Ala. Crim. App. 2021), cert.
denied (No. 1210291, Oct. 21, 2022); and Belcher v.
State, 341 So. 3d 237 (Ala. Crim. App. 2020), cert.
denied (No. 1200374, May 21, 2021). Those decisions,
as well as the plain language of Act No. 2017-131,
Ala. Acts 2017, support the idea that Sykes is not
subject to the new sentencing scheme under that act.
Based on the materials before this Court, however, I
believe it is premature to decide this question.
33a
WINDOM, Presiding Judge, dissenting.
The main opinion reverses Brandon Dewayne
Sykes’s capital-murder convictions and his sentence
of death because, it holds, the prosecutor made a
direct comment on Sykes’s decision not to testify and
the circuit court failed to take prompt curative action.
Because I do not believe the prosecutor made a direct
comment on Sykes’s decision not to testify, I
respectfully dissent.
During rebuttal closing arguments, the prosecutor
stated: “There’s only two people in the world that
know what happened in that house. One of them’s
dead, and the other one is sitting right over there at
the end of that table. (Indicating).” (R. 1619.) The
main opinion, relying on the opinions of the Alabama
Supreme Court in Whitt v. State, 370 So. 2d 736 (Ala.
1979) and Ex parte Wilson, 571 So. 2d 1251 (Ala.
1990), holds that the foregoing was a direct comment
on Sykes’s decision not to testify.
The remark by the prosecutor was admittedly
similar to the remarks made by the prosecutors in
Whitt and Wilson, as well as a remark made by the
prosecutor in Powell v. State, 631 So. 2d 289 (Ala.
Crim. App. 1993), which is also cited by the main
opinion. In all three cases, as in this case, the
prosecutor referenced the defendant’s being the only
remaining eyewitness to the crime. Even so, I do not
believe a reversal of Sykes’s convictions and sentence
is warranted under the circumstances here.
What distinguishes the remark at issue from the
remarks made in Whitt, Wilson, and Powell is the
context in which it was made. The State has assumed
this position in its brief on appeal, asserting that,
when viewed in context, the argument of the State in
34a
rebuttal was merely a reply in kind to the argument
of defense counsel during his closing argument that
there were gaps in the State’s evidence. Indeed, “[a]
challenged comment of a prosecutor made during
closing arguments must be viewed in the context of
the evidence presented in the case and the entire
closing arguments made to the jury – both defense
counsel’s and the prosecutor’s.” Ex parte Brooks, 695
So. 2d 184, 189 (Ala. 1997).5
I believe Ex parte Musgrove, 638 So. 2d 1360 (Ala.
1993), and Ex parte Brooks, 695 So. 2d 184 (Ala.
1997), are instructive. In Musgrove, the Alabama
Supreme Court examined the following rhetorical
questions posed to the jury by the prosecutor during
rebuttal closing arguments: “What did you hear from
the defense?” and “What did you hear from the
Defendant?” The appellants objected, asserting that
the questions were comments on their right not to
testify. The appellants’ objections to the questions
5
The State relies in its brief on the reply-in-kind doctrine.
Sykes counters that the reply-in-kind doctrine is inapplicable
here because he made no illegal argument. On this point, I agree
with Sykes. "The reply-in-kind doctrine is designed to restore an
equal playing field in the courtroom when one party violates the
rules." Allstate Ins. Co. v. Ogletree, 331 So. 3d 1150, 1156 (Ala.
2021) (emphasis added); see Minor v. State, 914 So. 2d 372, 430
(Ala. Crim. App. 2004) ("It is a misapplication of this rule,
however, to uphold an illegal argument under the guise of 'reply
in kind,' where the initial argument, to which the purported reply
is addressed, is itself a legally permissible comment to the jury.").
Because Sykes's arguments in closing about the gaps in the
State's evidence were entirely appropriate, the State cannot now
avail itself of the reply-in-kind doctrine to excuse its remark on
rebuttal.
Nonetheless, the fact that the State's remark was made in
response to arguments raised by Sykes is relevant because it
provides context for the challenged remark.
35a
were overruled, and the circuit court gave no curative
instruction to the jury. Still, the Alabama Supreme
Court found no error that warranted reversal. After
reviewing the entirety of the closing arguments from
both parties, specifically noting that defense counsel
had “made repeated attacks upon the prosecution’s
presentation of its case and the prosecution’s motivation for obtaining a conviction,” Musgrove, 638 So.
2d at 1368, the Alabama Supreme Court endorsed
this Court’s holding with respect to the prosecutor’s
question, “What did you hear from the Defendant?”:
“‘[This comment,] when viewed in the
context of the entire argument, did not
refer to the appellants’ failure to testify,
but was rather the prosecutor’s opening
into a summary of the case presented by
the defense. The comment was clearly
not a direct reference to the appellants’
failure to testify because it was not
‘“manifestly intended to be, or was of
such a character that the jury would
naturally and necessarily take it to be, a
comment on the failure of the accused to
testify.”‘ [Citations omitted.] Nor was
this comment an indirect reference to
the appellants’ failure to testify and
there was no “close identification” of the
appellants as the exact people who did
not become witnesses. [Citation omitted.] This statement by the prosecutor
was merely a general opening statement
to a recapitulation of the defense’s case.’
“Musgrove and Rogers v. State, 638 So. 2d
1347, 1359 (Ala. Crim. App. 1992).
“We agree.”
36a
Ex parte Musgrove, 638 So. 2d at 1369 (emphasis
added in Ex parte Musgrove).
Similarly, in Ex parte Brooks, supra, the Alabama
Supreme Court considered the following argument,
which was allowed by the trial court over defense
counsel’s objection:
“‘In that connection I ask [defense
counsel], the last thing I said before I
sat down was to get up here and tell
these people what’s the reasonable hypothesis that’s consistent with his innocence? That says anything other than he
intentionally killed her while he raped
and robbed her in her apartment. Have
you heard it yet? Of course not.
“. . . .
“Well, have you heard one word in this
courtroom since Tuesday morning, one
word in this courtroom since Tuesday
morning, that causes you to believe
there’s a reasonable hypothesis of innocence, that is anything except compelling of his guilt from this evidence proposed to you by [defense counsel] in
argument or otherwise?”
Ex parte Brooks, 695 So. 2d at 187. Again, the
Alabama Supreme Court reviewed the entirety of the
parties’ closing arguments and recognized that
defense counsel had
“argued that the State’s evidence, because of
its circumstantial nature, was insufficient to
prove beyond a reasonable doubt that the
defendant had committed the crimes. Def-
37a
ense counsel insisted that the evidence
created a reasonable hypothesis of the
defendant’s innocence because there were
unidentified fingerprints, unidentified pubic
hair, and unidentified semen at the crime
scene, which, defense counsel contended,
suggested that another person had committed the crimes.”
Id. at 189. The Alabama Supreme Court held that “in
the context of the evidence and the closing arguments
of both the defense and the State, the statements at
issue were not a reference to the defendant’s failure
to testify, but rather were a reply to the insufficiency
argument made by defense counsel that the evidence
suggested a reasonable hypothesis of the defendant’s
innocence and that the State had failed to eliminate
that hypothesis.” Id.
I believe the main opinion focuses too much on the
remark itself and ignored the context in which that
remark was made. After all, in isolation, it would be
difficult to craft an argument that more directly
comments on a defendant’s decision not to testify
than the remark in Ex parte Musgrove – “What did
you hear from the Defendant?” But, as in Ex parte
Musgrove and Ex parte Brooks, this Court should not
view the remark in isolation but rather should look to
the evidence offered at trial and the entirety of the
closing arguments to gather the context in which the
allegedly improper remark was made.
In this case, a primary theory of Sykes’s guiltphase defense was that law enforcement did not
know what had happened to Keshia Sykes and, in
fact, could not even be certain that she was dead.
Defense counsel harped on this theory during his
closing arguments:
38a
“I asked [Agent] Andy Jones [of the
Alabama Bureau of Investigation] right
here, ‘Is Keshia Sykes dead?’ He says, ‘I can’t
say for a fact.’
“Do you know why there’s a charge for
Kidnapping, one for Robbery and one for
Burglary? Because the State has no real
theory of what this case is about. They
figure, ‘If we just throw enough stuff up
against the wall, something will stick.’
“So is it Burglary? Did he come through
the window in the back? . . .
“. . . .
“So what’s the method of death? What did
he do with the body? When did he move the
body? . . .
“. . . .
“. . . And you remember if anybody sat on
this stand and said, ‘You know what? With
that amount of blood lost, you expect
somebody to be dead.’ This is the serious
physical injury.
“Did you hear him? No. And you know
why? Nobody knows. Nobody knows.
“. . . .
“And that’s what this is about. Someone
who is missing. Someone who told Clara
Hollis, ‘You think I’ll get my’ – ‘my disability
money? Because if not, I’m leaving in
February anyway.’
“What was the impetus for her to leave?
Think about the testimony of all of the
39a
things. Think about the Burglary, the
Robbery, the Kidnapping.
“You know, they are just saying it had to
be one of those. It had to be one of those. Is
there any evidence of that?
“. . . .
“So we have no idea of a time of death. We
think it’s sometime allegedly between 8:00
and 8:58. Old Highway 18 right in Vernon
just right off the road.
“You are going to tell me that Brandon
Sykes went inside, whether Robbery,
Burglary, Kidnapping, beat the hell out of
her, cleaned up, did something with the body
and was at his sister’s house by 9:00 o’clock?
“. . . .
“. . . Consider the fact they have no idea
how anything happened; but yet, they are
wanting you to find him guilty.
“Consider the facts just like Andy Jones
said, ‘I can’t say for a fact she’s dead,’ and
find him not guilty.
“Thank you.”
(R. 1598-1607.) The prosecutor responded to defense
counsel’s argument in his rebuttal:
“One thing [defense counsel] brought up is
what happened in the house. The State
doesn’t know it. The State doesn’t know. I’ll
concede some of that. We don’t know exactly
what happened in the house.
40a
“There’s only two people in the world that
know what happened in that house. One of
them’s dead, and the other one is sitting right
there at the end of that table. (Indicating.)
Those are the only two people that know
what happened in that house, but we can
look at the facts in evidence.”
(R. 1619) (emphasis added.) The prosecutor then
addressed the evidence that supported the State’s
theory of a brutal murder of Keshia. Viewed in
context, I do not believe the prosecutor’s challenged
remark, which is emphasized above, was “‘manifestly
intended or was of such a character that a jury would
naturally and necessarily take it to be a comment on
the failure of the accused to testify.’” Ex parte Brooks,
695 So. 2d at 188 (quoting United States v. Herring,
955 F.2d 703, 709 (11th Cir. 1992)).
In Whitt, the Alabama Supreme Court was precluded from considering the context of the challenged
remark because the record did not contain the closing
arguments. Whitt, 370 So. 2d at 738. In Wilson, the
prosecutor referenced the defendant’s being the only
eyewitness and added that “‘he ain’t going to tell
you’” what happened. Ex parte Wilson, 571 So. 2d at
1260. In Powell, the prosecutor specifically drew the
jury’s attention to the fact that the deceased victim
could not “come in and testify,” which left the
defendant as the only eyewitness who could have
taken the stand. Powell, 631 So. 2d at 290. In
contrast, in this case the prosecutor’s argument
followed a lengthy challenge to the evidence, or
purported lack thereof, made by defense counsel, and
the prosecutor even prefaced the challenged argument with a reference to the specific argument of
defense counsel that he intended to address.
41a
Additionally, I believe this Court must be mindful
that the jury was specifically instructed by the circuit
court that the burden of proof rested upon the State
and that Sykes was not required to prove his
innocence. (R. 1654.) The circuit court also gave the
following instruction:
“The Court charges the jury that the fact
that that the Defendant did not testify in
this case cannot be considered in determining the Defendant’s guilt or innocence.
“No inference or conclusion should be
drawn by the jury from the fact that the
Defendant was not sworn and put on the
witness stand as a witness in his own behalf,
nor should this fact have any weight with
the jury in reaching a verdict.”
(R. 1657.)
In sum, I believe that the jurors would have
perceived the remark not as a comment on Sykes’s
decision not to testify but rather for what it was – a
rebuttal to defense counsel’s closing argument. See
Thomas v. State, 824 So. 2d 1, 26 (Ala. Crim. App.
1999), overruled on other grounds, Ex parte Carter,
889 So. 2d 528, 533 (Ala. 2004) (“We reiterate that we
look at the impact of an allegedly improper comment
in the context of the entire proceeding, and that we
do not view the comment in the abstract.” (citing
McWhorter v. State, 781 So. 2d 257 (Ala. Crim. App.
1999))). It would seem, given the lack of an objection
or a curative instruction, that defense counsel for
Sykes and the circuit court perceived the remark in
the same way.
I do not believe the challenged remark constituted
a direct comment on Sykes’s decision not to testify;
42a
consequently, I do not believe the circuit court
committed plain error in failing to sua sponte provide
a curative instruction. Therefore, I respectfully
dissent from that portion of the main opinion.
I also disagree with the discussion in the main
opinion about the appropriate capital-sentencing
scheme to be applied should Sykes again be convicted
of capital murder.
Act No. 2017-131, Ala. Acts 2017, created a new
capital-sentencing scheme that placed the final
sentencing authority in capital cases with the jury. I
believe that by the express wording of the applicability statute – § 13A-5-47.1, Ala. Code 1975 – the
new capital-sentencing scheme applies to Sykes’s
charges for capital murder.
Section 13A-5-47.1 contains two provisions – one
that establishes to whom the new capital-sentencing
scheme applies and one that establishes to whom the
new capital-sentencing scheme does not. First, § 13A5-47.1 states that the new capital-sentencing scheme
“shall apply to any defendant who is charged with
capital murder after April 11, 2017.” As the main
opinion points out, Sykes was first indicted in May
2015 in case no. CC-15-208 on two counts of murder
made capital for intentionally killing Keshia Nicole
Sykes during the commission of a first-degree
burglary and for intentionally killing Keshia Nicole
Sykes during the commission of a first-degree
kidnapping. However, he was not tried on this
indictment. In April 2019, Sykes was reindicted in
CC-case no. 19-144 on three counts of murder made
capital for intentionally killing Keshia Nicole Sykes
during the commission of a first-degree burglary,
for intentionally killing Keshia Nicole Sykes during
the commission of a first-degree kidnapping, and for
43a
intentionally killing Keshia Nicole Sykes during the
commission of a first-degree robbery. It was on this
indictment that Sykes was tried and convicted. It
seems indisputable that Sykes was, in fact, “charged
with capital murder after April 11, 2017.” § 13A-547.1.6 Looking to the date on which Sykes was first
charged with capital murder appears to read into the
statute a qualifier that does not exist.
Next, § 13A-5-47.1 states that the new capitalsentencing scheme “shall not apply retroactively to
any defendant who has previously been convicted of
capital murder and sentenced to death prior to April
11, 2017.” Sykes was sentenced to death on April 5,
2022; thus, this provision of § 13A-5-47.1 clearly does
not exclude Sykes from being sentenced under the
new capital-sentencing scheme.
In light of the procedural history of Sykes’s case, I
believe the circuit court properly determined that the
new capital-sentencing scheme was applicable to
Sykes’s charges for capital murder. Therefore, I respectfully dissent from that portion of the main
opinion as well.
6
This Court has recognized that "an original charging
instrument is nullified by a subsequent indictment" and that "a
subsequent indictment that changes an offense of a previous
indictment is not an amendment to the previous indictment; it
is a new indictment that supersedes, nullifies, and replaces the
previous indictment." Hulsey v. State, 196 So. 3d 342, 353 (Ala.
Crim. App. 2015); Ex parte Russell, 643 So. 2d 963, 965 (Ala.
1994).
44a
APPENDIX B
ALABAMA COURT OF CRIMINAL APPEALS
————
June 21, 2024
————
CR-2022-0546
————
BRANDON DEWAYNE SYKES
v.
STATE OF ALABAMA
————
(Appeal from Lamar Circuit Court: CC-19-144).
————
NOTICE
You are hereby notified that on June 21, 2024, the
following action was taken in the above-referenced
cause by the Court of Criminal Appeals:
Application for Rehearing Overruled.
/s/ D. Scott Mitchell, Clerk_______
D. Scott Mitchell, Clerk
45a
APPENDIX C
IN THE SUPREME COURT OF ALABAMA
September 12, 2025
SC-2024-0395
Ex parte State of Alabama PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL
APPEALS (In re: Brandon Dewayne Syke v. State of
Alabama) (Lamar Circuit Court: CC-19-144; Criminal
Appeals CR-2022-0546).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the
above referenced cause has been duly submitted and
considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause
on September 12, 2025:
Writ Quashed. No Opinion. PER CURIAM. -Stewart, C.J., and Shaw, Wise, Bryan, Sellers,
Mendheim, and Cook, JJ., concur. Lewis, J., dissents.
McCool, J., recuses himself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R.
App. P., IT IS HEREBY ORDERED that this Court’s
judgment in this cause is certified on this date. IT IS
FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the
costs of this cause are hereby taxed as provided by
Rule 35, Ala. R. App. P.
I, Megan B. Rhodebeck, certify that this is the
record of the judgment of the Court, witness my hand
and seal.
/s/ Megan B. Rhodebeck__________
Clerk, Supreme Court of Alabama
46a
APPENDIX D
IN THE SUPREME COURT OF ALABAMA
February 20, 2025
————
SC-2024-0395
Ex parte State of Alabama PETITION FOR WRIT
OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS (In re: Brandon Dewayne Sykes v. State of
Alabama) (Lamar Circuit Court: CC-19-144; Criminal
Appeals: CR-2022-0546).
ORDER
The “State of Alabama’s Petition for Writ of
Certiorari” filed by on July 12, 2024, directed to the
Court of Criminal Appeals, having been submitted to
this Court,
IT IS ORDERED that the Petition is GRANTED.
Ala. R. App. P. 39(f).
IT IS FURTHER ORDERED as follows:
1. that Petitioner may file a brief in accordance
with Rule 39(g)(1);
2. that Respondent may then file a response brief
in accordance with Rule 39(g)(2);
3. that, should either Petitioner or Respondent
choose not to file a brief, such party shall instead
timely file a waiver of the right to file such brief in
accordance with Rule 39(g)(1)–(2);
4. that Petitioner may then file a reply brief in
accordance with Rule 39(g)(3); and
5. that requests for oral argument, if any, shall
be made in accordance with Rule 39(h).
47a
PER CURIAM. Stewart, C.J., and Shaw, Bryan,
Sellers, Mendheim, and Mitchell, JJ., concur.
Wise and Cook, JJ., dissent. McCool, J., recuses
himself.
Witness my hand and seal this 20th day of
February, 2025.
/s/ Megan B. Rhodebeck____
Clerk of Court,
Supreme Court of Alabama
FILED
February 20, 2025
Clerk of Court
Supreme Court of Alabama
48a
APPENDIX E
IN THE ALABAMA COURT OF
CRIMINAL APPEALS
————
No. CR-22-0546
————
STATE OF ALABAMA,
v.
BRANDON DEWAYNE SYKES,
————
On Appeal from the Circuit Court of Lamar County
No. CC-19-144
————
STATE’S APPLICATION AND
BRIEF FOR REHEARING
Steve Marshall
Attorney General
John C. Hensley
Assistant Attorney General
Counsel of Record*
State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130
Tel: (334) 242-7300
Fax: (334) 353-3637
E-mail: john.hensley@alabamaag.gov
May 17, 2024
49a
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
TABLE OF CONTENTS
STATEMENT REGARDING ORAL
ARGUMENT ....................................................
ii
TABLE OF AUTHORITIES ................................
iv
APPLICATION FOR REHEARING ...................
1
STATEMENT OF THE CASE AND FACTS ......
2
STATEMENT OF THE ISSUES.........................
2
ARGUMENT ........................................................
4
I. Error! Reference source not found Error!
Bookmark not defined.
II. This Court Erred When it Disregarded
the Caselaw as it Pertains to the
Harmless Error Rule ................................
4
CONCLUSION ....................................................
25
TABLE OF AUTHORITIES
CASES
Ex parte Brooks,
695 So. 2d 184 (Ala. 1997) ........ 11-12, 14, 18-20
Ex parte Loggins,
771 So. 2d 1093 (Ala. 2000) .............................. 7
Ex parte McWilliams,
640 So. 2d 1015 (Ala. 1993) ............................ 19
Ex parte Musgrove,
638 So. 2d 1360 (Ala. 1993) ............................ 19
Ex parte Wilson,
571 So. 2d 1251 (Ala. 1990) ........................ 8, 13
50a
Gavin v. State,
891 So. 2d 907 (Ala. Crim. App. 2003) . 7, 21, 24
Hannah v. State,
518 So. 2d 182 (Ala. Crim. App. 1987) ............. 7
Henderson v. State,
No. CR-21-0044, 2024 WL 1946585 (Ala.
Crim. App. May 3, 2024)................................... 5
Jackson v. State,
629 So. 2d 748 (Ala. Crim. App. 1993) ............. 8
J.E. v. State,
997 So. 2d 335 (Ala. Crim. App. 2007) ............. 8
Minor v. State,
914 So. 2d 372 (Ala. Crim. App. 2004) 10, 15-16
Mitchell v. United States,
526 U.S. 314 (1999) ........................................... 7
Smith v. State,
2022 WL 4007496
(Ala. Crim. App. September, 2 2022) ........... 6, 9
State v. Sykes,
No. CR-22-0546, 2024 WL 1947829
(Ala. Crim. App. May 3, 2024) ........ 1-2, 4, 10-11
.............................................. 14-15, 19-20, 22-23
Thompson v. State,
132 So. 2d 386 (Ala. Crim. App. 1961) ............. 9
Warren v. State,
288 So. 2d 826 (Ala. 1973) ................................ 8
Whitt v. State,
370 So. 2d 736 (Ala. 1979) ......................... 13-14
Woodward v. State,
123 So. 2d 989 (Ala. Crim. App. 2011) ............. 6
Other Sources
Ala. R. App. P. 45A ............................................... 4
51a
APPLICATION FOR REHEARING
The State of Alabama respectfully moves this
Court for a rehearing under Rule 40 of the Alabama
Rules of Appellate Procedure. The State requests
that this Court’s opinion entered on May 3, 2024,
be withdrawn. 1 The Court should affirm Brandon
Sykes’s conviction and sentence of death.
Specifically, the State believes that this Court overlooked or misapprehended the following points of law
and fact:
1. The State respectfully asserts that this Court
misapprehended the applicable standard of review
concerning prosecutorial comments on a defendant’s right not to testify, including the determination of whether a comment is a “direct” or
“indirect” comment.2 The Court also erred in its
determination that the trial court failed “to take
prompt curative action.”3
2. This Court misapprehended that the harmless
error rule applies to comments on a defendant’s
right not to testify.
STATEMENT OF THE CASE AND FACTS
Brandon Sykes was convicted of capital murder
and sentenced to death in February 2022. Sykes
appealed, and he filed his brief on March 23, 2023.
On May 3, 2024, this Court reversed and remanded
Sykes’s conviction and death sentence, finding that
the prosecutor made “a direct comment on Sykes’s
1
State v. Sykes, No. CR-22-0546, 2024 WL 1947829 (Ala.
Crim. App. May 3, 2024).
2
Id. at *9.
3
Id.
52a
decision not to testify.” 4 Presiding Judge Windom
wrote a dissenting opinion.5 Judge McCool recused.
The State adopts Judge Windom’s statement of facts
along with the main opinion’s statement of facts. The
State now seeks rehearing and requests that the
Court withdraw its opinion and affirm Sykes’s
capital-murder conviction and death sentence.
STATEMENT OF THE ISSUES
1. Did this Court misapply Alabama caselaw in
regards to, not only whether the prosecutor’s
statement during closing argument was “a direct
comment on Sykes’s decision not to testify,”6 but
whether the trial court erred in failing “to take
prompt curative action?”7
2. Did this Court disregard the case law as it
pertains to the harmless error rule?
ARGUMENT8
I. This Court erred when it misapplied Alabama
caselaw in regard to the prosecutor’s statement
during closing argument.
This Court erred by finding that the prosecutor
made a direct comment on Sykes’s decision not to
testify in violation of Alabama law.9 Because Sykes
4
Id. at *9.
5
Id. at *13-*17.
6
Id. at *9.
7
Id.
8
Citations to the record are as follows:
R. Reporter’s transcript from trial
C. Clerk’s record on appeal
9
See Sykes, No. CR-22-0546, 2024 WL 1947829 at *5-9.
53a
did not object to the prosecutor’s statement, the
standard of review for these issues is plain error.10
This Court has explained that
The standard of review in reviewing a claim
under the plain-error doctrine is stricter
than the standard used in reviewing an
issue that was properly raised in the trial
court or on appeal. Hall v. State, 820 So. 2d
113, 121 (Ala. Crim. App. 1999), aff’d, 820
So. 2d 152 (Ala. 2001). Plain error is “error
that is so obvious that the failure to notice it
would seriously affect the fairness or
integrity of the judicial proceedings.” Ex
parte Trawick, 698 So. 2d 162, 167 (Ala.
1997), modified on other grounds, Ex parte
Wood, 715 So. 2d 819 (Ala. 1998). To rise to
the level of plain error, the claimed error
must not only seriously affect a defendant’s
‘substantial rights,’ but it must also have an
unfair prejudicial impact on the jury’s
deliberations. Hyde v. State, 778 So. 2d 199,
209 (Ala. Crim. App. 1998), aff’d, 778 So. 2d
237 (Ala. 2000). The plain error standard
applies only where a particularly egregious
error occurred at trial and that error has or
probably has substantially prejudiced the
defendant. Ex parte Trawick, 698 So. 2d at
167. [P]lain error must be obvious on the
10
See Ala. R. App. P. 45A (“In all cases in which the death
penalty has been imposed, the Court of Criminal Appeals may,
but shall not be obligated to, notice any plain error or defect in
the proceedings under review, whether or not brought to the
attention of the trial court, and take appropriate appellate
action by reason thereof, whenever such error has or probably
has adversely affected the substantial right of the appellant.”).
54a
face of the record. A silent record, that is a
record that on its face contains no evidence
to support the alleged error, does not
establish an obvious error. Ex parte Walker,
972 So. 2d 737, 753 (Ala. 2007). Thus,
“[u]nder the plain-error standard, the appellant must establish that an obvious, indisputable error occurred, and he must
establish that the error adversely affected
the outcome of the trial.” Wilson v. State, 142
So. 3d 732, 751 (Ala. Crim. App. 2010). [T]he
plain error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in which
a miscarriage of justice would otherwise
result.” United States v. Young, 470 U.S. 1,
15, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985)
(quoting United States v. Frady, 456 U.S.
152, 163 n.14, 102 S. Ct. 1584, 71 L. Ed. 2d
816 (1982)).11
Furthermore, “[w]hile th[e] failure to object does not
preclude review in a capital case, it does weigh
11
Henderson v. State, No. CR-21-0044, 2024 WL 1946585, at
*4 (Ala. Crim. App. May 3, 2024); See United States v. Daniels,
91 F.4th 1083, 1095 (11th Cir. 2024) (“Plain error review is
different from harmless error review in several respects.
[Citation omitted]. First, ‘relief under plain error review is
discretionary, meaning that, even if a defendant establishes
prejudice, her convictions might still be affirmed.’ [Citation
omitted]. Second, ‘unlike harmless error—where the government carries the burdern—the onus of establishing prejudice
under plain error rests with the defendant.’ [Citation omitted].
Third, ‘[t]he measure of prejudice under plain error review—the
third prong of the plain error test—requires that an error have
affected substantial rights, which almost always requires that
the error must have affected the outcome of the [trial].”).
55a
against any claims of prejudice. [Citation omitted].
This court has concluded that the failure to object to
improper prosecutorial arguments . . . should be
weighed as part of our evaluation of the claim on the
merits because of its suggestion that the defense did
not consider the comments in question to be particularly harmful.”12
In past cases, this Court has addressed prosecutors’ comments about the evidence by stating
Questions about the propriety of counsel’s
statements in closing argument are matters
for the broad discretion of the trial court.
See, e.g., Gobble v. State, 104 So. 3d 920, 947
(Ala. Crim. App. 2010) (quoting Acklin v.
State, 790 So. 2d 975, 1002 (Ala. Crim. App.
2000)). A prosecutor may argue every legitimate inference from the evidence ‘and may
examine, collate, shift and treat the evidence
in his own way.’ Taylor v. State, 666 So. 2d
36, 64 (Ala. Crim. App. 1994). A prosecutor’s
arguments are to be examined in the context
of the evidence as a whole. The standard of
review is not whether the defendant was
prejudiced by a comment, but whether the
comment ‘so infected the trial with unfairness as to make the resulting conviction
12
Smith v. State, 2022 WL 4007496, at *18 (Ala. Crim. App.
September 2, 2022) (In Smith, the prosecutor discussed the
defendant’s “testimony” and suggested that the defendant would
“testify” in the prosecutor’s opening statement. The defendant
did not testify. This Court, examining the statements in context
of the entire trial, found that the prosecutor’s statements about
the defendant testifying were not a direct or indirect comment
on the defendant’s failure to testify and that “the State
committed no error, plain or otherwise.”).
56a
a denial of due process.’ Darden v. Wainwright, 477 U.S. 168, 169, 106 S. Ct. 2464,
91 L. Ed. 2d 144 (1986).13
Because the trial court is in the best position to
“determine when discussion by counsel is legitimate
and when it degenerates into abuse,” 14 “[w]ide
discretion is allowed the trial court in regulating the
arguments of counsel.” 15 Lastly, Alabama courts
apply harmless-error analysis to claims regarding
improper comments on a defendant’s failure to take
the stand.16
First, the Court misapprehended that an actual
“direct” comment is one that directly refers to the
defendant’s failure to take the stand. 17 A direct
13
Woodward v. State, 123 So. 3d 989, 1028 (Ala. Crim. App.
2011).
14
Hannah v. State, 518 So. 2d 182, 185 (Ala. Crim. App. 1987)
(quoting Saffold v. State, 485 So. 2d 806, 808 (Ala. Crim. App.
1986)).
15
Ex parte Loggins, 771 So. 2d 1093, 1101 Ala. 2000) (quoting
Lloyd v. State, 629 So. 2d 662, 663–64 (Ala. Crim. App. 1993)).
16
See Gavin v. State, 891 So. 2d 907, 983 (Ala. Crim. App.
2003); Ex parte Brooks, 695 So. 2d 184, 190 (Ala. 1997)).
17
The Court’s analysis improperly relies on the direct/indirect
distinction to reach the wrong conclusion. In effect, the Court
has replaced a highly context-focused standard of review with a
magic-words test. To the extent the direct/indirect test is
controlling, the State reserves the right to challenge it before the
Alabama Supreme Court. Additionally, the State preserves the
argument that—whether arising under the federal or Alabama
Constitutions—the extent of a criminal defendant’s right to be
free from comment on his failure to testify goes far beyond the
original meaning of the relevant constitutional provisions. See,
e.g., Mitchell v. United States, 526 U.S. 314, 331–41 (1999)
(Scalia, J., dissenting) (“[I]t is implausible that the Americans of
1791, who were subject to adverse inferences for failing to give
57a
comment on a defendant’s failure to testify includes
comments such as “The defendant did not take the
stand and deny the accusation against him,”18 or “The
defendant can testify and he knows if he chooses to
do so,”19 or “Now, if he had wanted to testify, that
would be fine, but he did not.”20
Indirect comments include: “‘The defendant did not
deny,’ ‘Why didn’t he tell about it,’ ‘Whether he will
ever state it or not, I don’t know,’ ‘He did not deny he
was at the still,’ ‘You have not heard the testimony of
the defendant yet,’ ‘He hasn’t explained it,’ ‘There is
not one iota of testimony that he has denied this
testimony,’ ‘If I had been him I would have * * * said,
‘I quit right now,” ‘He don’t say he didn’t do it,’
unsworn testimony, would have viewed an adverse inference for
failing to give sworn testimony as a violation of the Fifth
Amendment”).
Even if the Court’s characterization of the comment in Ex
parte Wilson as a “direct” comment were controlling, a distinction must be made between the comment in that case and the
comment in this case. In Ex parte Wilson, 571 So. 2d at 1259,
the Court found that the prosecutor’s comment, “I can’t tell you
what that women went through during that night, because
there is only one eyewitness, and he ain’t going to tell you,” was
improper, in part, because, contrary to the State’s argument
that the comment constituted a reasonable inference from the
evidence, “the comment was not made in the context of a
discussion of the [defendant’s] taped statement.” Id. at 1264. A
prosecutor’s statement that the defendant will not tell the jury
something is obviously different than a statement that the
defendant has knowledge of something.
18
Warren v. State, 288 So. 2d 826, 828 (Ala. 1973).
19
J.E. v. State, 997 So. 2d 335, 338 (Ala. Crim. App. 2007).
20
Jackson v. State, 629 So. 2d 748, 753 (Ala. Crim. App.
1993).
58a
‘Sitting here holding his mouth,’ and ‘We asked him
in court and he hasn’t explained it.’”21
In this case, the prosecutor’s comment did not
directly refer to Sykes’s failure to take the stand, so
the conclusion that error arose from that comment
rests upon a faulty premise. In reviewing these
statements by prosecutors, this Court has explained
that it will determine whether the statement was “(1)
manifestly intended to be a comment on [the defendant’s] failure to testify or (2) that it was of such
character that the jury would have naturally and
necessarily taken it to be a comment on [the
defendant’s] failure to testify.” 22 Sykes “bears the
burden of establishing the existence of one of the two
criteria.”23 Absent a showing of either of those two
criteria, “the State committed no error, plain or
otherwise.”24
The State’s argument “must be viewed in the
context of all of the evidence presented and in the
context of the complete closing arguments to the
jury.”25 Furthermore, the prosecutor’s “comment must
be examined in context, in order to evaluate the
prosecutor’s motive and to discern the impact of the
statement.”26
21
Thompson v. State, 132 So. 2d 386, 389 (Ala. Ct. App. 1961).
22
Smith, 2022 WL 4007496 at *19.
23
Id. (quoting United States v. Muscatell, 42 F.3d 627, 632
(11th Cir. 1995)).
24
Id. at *22.
25
Minor v. State, 914 So. 2d 372, 418 (Ala. Crim. App.
2004)(quoting Roberts v. State, 735 So. 2d 1244, 1253 (Ala.
Crim. App. 1997)).
26
Id.
59a
As Presiding Judge Windom pointed out in her
dissent, Ex parte Musgrove is illuminating for the
present case.27
In Musgrove, the Alabama Supreme Court
examined the following rhetorical questions
posed to the jury by the prosecutor during
rebuttal closing arguments: “What did you
hear from the defense?” and “What did you
hear from the Defendant?” The appellants
objected, asserting that the questions were
comments on their right not to testify. The
appellants’ objections to the questions were
overruled, and the circuit court gave no
curative instruction to the jury. Still, the
Alabama Supreme Court found no error that
warranted reversal. After reviewing the
entirety of the closing arguments from both
parties, specifically noting that the defense
counsel had “made repeated attacks upon
the prosecution’s presentation of its case and
the prosecution’s motivation for obtaining a
conviction,” Musgrove, 638 So. 2d at 1368,
the Alabama Supreme Court endorsed this
Court’s holding to the prosecutor’s question,
“What did you hear from the Defendant?”:
“[This comment,] when viewed in the context
of the entire argument, did not refer to the
appellants’ failure to testify, but was rather
the prosecutor’s opening into a summary of
the case presented by the defense. The
comment was clearly not a direct reference
to the appellants’ failure to testify because it
27
See Sykes, 2024 WL 1947829 at *14 (citing Ex parte
Musgrove, 638 So. 2d 1360 (Ala. 1993)).
60a
was not ‘“manifestly intended to be, or was
of such a character that the jury would
naturally and necessarily take it to be, a
comment on the failure of the accused to
testify.”‘ [Citations omitted.] Nor was this
comment an indirect reference to the
appellants’ failure to testify and there was
no “close identification” of the appellants as
the exact people who did not become witnesses. [Citation omitted.] This statement by
the prosecutor was merely a general opening
statement to a recapitulation of the defense’s
case.’
“Musgrove and Rogers v. State, 638 So. 2d
1347, 1359 (Ala. Crim. App. 1992).
“We agree.”28
Additionally, in Ex Parte Brooks, the Supreme
Court of Alabama held that the State did not violate
the defendant’s Fifth Amendment right to not testify
after the prosecutor’s closing argument statements
asking the jury if they had heard a “reasonable hypothesis that’s consistent with [the defendant’s] innocence”:29
[I]n the context of the evidence and the
closing arguments of both the defense and
the State, the statements at issue were not a
reference to the defendant’s failure to testify,
but rather were a reply to the insufficiency
argument made by defense counsel that the
evidence suggested a reasonable hypothesis
28
29
Id.
Ex parte Brooks, 695 So. 2d 184, 187 (Ala. Crim. App.
1997).
61a
of the defendant’s innocence and that the
State had failed to eliminate that hypothesis. Accordingly, we find no reversible
error.”30
During the State’s closing argument, in rebuttal to
Sykes’s closing argument, the prosecutor stated that,
“[t]here’s only two people in the world that know
what happened in that house. One of them is dead,
and the other one is sitting right over there at the
end of the table. (Indicating).”31 Sykes did not object
or ask for a curative instruction, so the trial court did
not give one. However, the trial court did instruct the
jury that the State was required to prove Sykes’s
guilt beyond a reasonable doubt. 32 The trial court
instructed the jury that Sykes was presumed innocent and was “not required to prove his innocence.”33
Additionally, the jury was instructed that
The Court charges the jury that the fact that
the Defendant did not testify in this case
cannot be considered in determining the
Defendant’s guilt or innocence.
No inference or conclusion should be drawn
by the jury form the fact that the Defendant
was not sworn and put on the the witness
stand as a witness in his own behalf, nor
should this fact have any weight with the
jury in reaching its verdict.34
30
Id. at 189-90.
31
R. 1619.
32
R. 1654.
33
Id.
34
R. 1657.
62a
This Court, relying on Whitt v. State35 and Ex parte
Wilson,36 decided that the prosecutor’s statement was
a direct comment on Sykes’s decision not to testify.
This Court based its decision on the premise that the
prosecutor’s statement in the present case was
similar to the statements made by the prosecutors in
the Whitt and Wilson cases, which conflicts with the
highly context-focused standard of review in this
area.37 The Court also erred in its determination that
the comment at issue was a forbidden “direct” comment.
Instead of examining the circumstances of other
cases to determine whether the comment in this case
was a direct or indirect comment, the Court should
have assessed the context of this case. In the present
case, unlike Whitt,38 there is a complete record, which
includes the evidence admitted at trial along with
transcripts of the direct and cross examinations and
the closing arguments. There is ample evidence for
this Court to have viewed the prosecutor’s statement
in context, not only of the closing arguments, but of
the trial as a whole. Yet this Court reviewed the
35
Whitt v. State, 370 So. 2d 736 (Ala. 1979).
36
Ex parte Wilson, 571 So. 2d 1251 (Ala. 1990).
37
Sykes, No. CR-22-0546, 2024 WL 1947829 at *9 (“The
remark in the instant case ... closely parallels the remarks in
Whitt and Wilson.”).
38
Whitt is not controlling. In Whitt, the State argued that the
prosecutor’s comment, “The only person alive today that knows
what happened out there that night is sitting right there,” was
“argument in kind” in response to the defendant’s closing argument. Whitt, 370 So. 2d at 738. The Alabama Supreme Court,
only having the prosecutor’s comment as part of the record and
not the defendant’s closing argument, could not give context to
the prosecutor’s statement, so the Court reversed. Id.
63a
statement in a vacuum and failed to examine the
prosecutor’s statement in the context of the trial and
closing arguments. Furthermore, as will be explained
below, this Court failed to even mention the context
of the prosecutor’s statement in its opinion.
This Court went through an extensive examination
of the overwhelming evidence presented in this case
in its statement of facts. 39 This includes: the significant amount of the Keshia’s blood left at Keshia’s
house;40 the testimony of Ben Scott that he dropped
Sykes off near Keshia’s house shortly before she
disappeared and when Scott spoke to Sykes on the
phone later that morning he heard the sound of a
child crying;41 that Sykes dropped Keshia’s daughter,
Brooklyn, off at his sister’s house and convinced her
to lie for him; 42 that Sykes took Keshia’s car to
Mississippi and burned it;43 that Keshia’s blood was
found in the bed of Sykes’s pick-up truck; 44 that
Sykes had Keshia’s missing cell phone;45 that Sykes
confessed to Jacob Wiley that he “beat [Keshia] up
and threw her in his truck” and that “he took her and
dumped her. . .where [they] used to go fishing.”46
While justifying reversing the jury’s verdict, this
Court completely ignored the facts that it should
have examined.
39
Sykes, 2024 WL 1947829 at *1-*5.
40
Id. at *1.
41
Id. at *2.
42
Id. at *3.
43
Id.
44
Id. at *2.
45
Id. at *3.
46
Id. at *5.
64a
When reviewing a potentially improper statement
made by the prosecutor, the State’s argument “must
be viewed in the context of all of the evidence
presented and in the context of the complete closing
arguments to the jury.” 47 Furthermore, the prosecutor’s “comment must be examined in context, in
order to evaluate the prosecutor’s motive and to
discern the impact of the statement.”48 There is not
one mention of the context of the prosecutor’s
statement in this Court’s decision.
The Court’s opinion in the present case failed to
examine the prosecutor’s statement in the context of
the trial and the closing arguments. Indeed, the
Court’s opinion does not consider the statements of
defense counsel at all. But during the trial, defense
counsel suggested multiple times that law enforcement had no idea what happened inside the house of
the victim—Keshia Sykes—the day Sykes murdered
her. They argued that the State failed to meet its
burden of proof because Keshia’s body was never
found. The defense questioned law enforcement about
what happened inside Keshia’s house: “But no idea of
manner it happened or, in fact, you don’t know that
she’s dead, do you?”49 Additionally, during guilt-phase
closing arguments, counsel stated:
“Do you know why there’s a charge for Kidnapping, one for Robbery and one for Burglary?
47
Minor v. State, 914 So. 2d 372, 418 (Ala. Crim. App.
2004)(quoting Roberts v. State, 735 So. 2d 1244, 1253 (Ala.
Crim. App. 1997)).
48
Id.
49
R. 1459.
65a
Because the State has no real theory of what
this case is about.”50
“So what’s the method of death? What did he do
with the body? When did he move the body?”51
“And you remember if anybody sat on this stand
and said, ‘You know, what? With that amount of
blood lost, you expect somebody to be dead.’
This is the serious physical injury. Did you hear
him? No. And you know why? Nobody knows.
Nobody knows.”52
“What was the impetus for her to leave? Think
about the testimony of all the things. Think
about the Burglary, the Robbery, the Kidnapping. You know, they are just saying it had to be
one of those. It had to be one of those. Is there
any evidence of that?”53
“So we have no idea of a time of death. We think
it’s sometime allegedly between 8:00 and 8:58.
Old Highway 18 right in Vernon just right off
the road. You are going to tell me that Brandon
Sykes went inside, whether Robbery, Burglary,
Kidnapping, beat the hell out of her, cleaned up,
did something with the body and was at his
sister’s house by 9:00 o’clock?”54
“Are you so set in your mind based on the
limited evidence the State has given you right
this moment that you can say beyond a
50
R. 1598.
51
R. 1599.
52
R. 1600-01.
53
R. 1602.
54
R. 1603-04.
66a
reasonable doubt she’s dead? No. Their own
investigator can’t say it. He can’t say it. So
without that, all the charges fail.”55
“Consider the fact they have no idea how
anything happened; but yet, they are wanting
you to find him guilty. Consider the facts that
just like Andy Jones said: ‘I can’t say for a fact
she’s dead’, and find him not guilty.”56
The State responded in its final closing argument:
One thing [defense counsel] brought up is
what happened in the house. The State
doesn’t know it. The State doesn’t know. I’ll
concede some of that. We don’t know exactly
what happened in the house. There’s only
two people in the world that know what
happened in that house. One of them is dead,
and the other one is sitting right there at the
end of that table. (Indicating.) Those are the
only two people that know what happened in
that house, but we can look at the facts in
evidence.”57
When viewing the prosecutor’s statement in the
context of the trial and the closing arguments, the
prosecutor’s statement was “not a reference to the
defendant’s failure to testify”,58 whether directly or
indirectly. The prosecutor never mentioned anything
about Sykes’s decision not to testify. The prosecutor
was merely replying “to the insufficiency argument
made by defense counsel that the evidence suggested
55
R. 1606.
56
R. 1607.
57
R. 1619.
58
Ex parte Brooks, 695 So. 2d at 189.
67a
a reasonable hypothesis of the defendant’s innocence
and that the State had failed to eliminate that
hypothesis.”59 No reasonable observer would conclude
otherwise.
Further confirming this conclusion, Sykes (represented by counsel) did not object to the statement
at trial. Nor did the judge sua sponte intervene.
Alabama courts have “‘concluded that the failure to
object to improper prosecutorial arguments . . .
should be weighed as part of our evaluation of the
claim on the merits because of its suggestion that the
defense did not consider the comments in question to
be particularly harmful.’”60 Otherwise, the end result
is what we have here: Sykes arguing that the
comment obviously and substantially influenced the
jury’s verdict even though it was not perceived by any
lawyer participating in the trial. That’s implausible.
Moreover, this Court erred by finding that the trial
court failed “to take prompt curative action?” 61
Because Sykes did not object, and the statement was
not improper to begin with, there was no need for the
trial court “to take prompt curative action.”62 Even if
the statement was improper, it did not rise to the
level of plain error; and even if Sykes had preserved
this issue, it would have been harmless error. This
Court failed to apply the case law to the present case
and must reverse its decision.
59
Id. at 190.
60
Ex parte McWilliams, 640 So. 2d 1015, 1019 (Ala. 1993)
(quoting Johnson v. Wainwright, 778 F.2d 623, 629 n. 6 (11th
Cir. 1985)).
61
Sykes, 2024 WL 1947829 at *9.
62
Id.
68a
II. This Court Erred When it Disregarded the
Caselaw as it Pertains to the Harmless Error
Rule.
This Court erred when it ignored Alabama case law
involving the application of the harmless error rule to
comments on the defendant’s failure to testify.63 In
Gavin v. State, this Court explained how the harmless error rule applies to comments on the defendant’s failure to testify:
Moreover, even if the statement might have
been construed as an improper comment on
the appellant’s failure to testify, any error
would have been harmless in this case.
The United States Supreme Court has . . .
held . . . “that there may be some constitutional errors which in the setting of a
particular case are so unimportant and
insignificant that they may, consistent with
the Federal Constitution, be deemed harmless, not requiring the automatic reversal
of the conviction.” Chapman v. California,
386 U.S. 18, 22 [Citation omitted] (1967).
Chapman involved comments on the failure
of the defendants to testify at trial. . . .
In United States v. Hasting, 461 U.S. 499
[Citation omitted] (1983), the Court cited
“the interest in the prompt administration of
justice and the interests of the victims” in
reversing the judgment of a lower federal
63
See Ex parte Brooks, 695 So. 2d 184 (Ala. 1997); Simmons v.
State, 797 So. 2d 1134 (Ala. Crim. App. 1999); Hammonds v.
State, 777 So. 2d 750 (Ala. Crim. App. 1999); Baxter v. State, 723
So. 2d 810 (Ala. Crim. App. 1998); Long v. State, 668 So. 2d 56
(Ala. Crim. App. 1995).
69a
appellate court for not applying the harmless
error doctrine to a prosecutor’s comment on
a defendant’s failure to proffer evidence to
rebut testimony presented by the prosecution, when the defendant had elected not to
testify. [Citation omitted]. In so holding, the
Court observed that “[s]ince Chapman, the
Court has consistently made clear that it is
the duty of a reviewing court to consider the
trial record as a whole and to ignore errors
that are harmless, including most constitutional violations,” (citations omitted), and
stated that the proper question for a reviewing court to ask is: “[A]bsent the prosecutor’s
allusion to the failure of the defense to
proffer evidence to rebut the testimony of the
victims, is it clear beyond a reasonable doubt
that the jury would have returned a verdict
of guilty?” [Citation omitted].
Our harmless error rule provides in pertinent part:
No judgment may be reversed or set aside
. . . on the ground of misdirection of the jury
unless in the opinion of the court to which
the appeal is taken or application is made,
after an examination of the entire cause, it
would appear that the error complained of
has probably injuriously affected substantial
rights of the parties.” Chapman, 386 U.S. at
23 [Citations omitted].64
64
Gavin v. State, 891 So. 2d 907, 984 (Ala. Crim. App. 2003)
(citing Chapman v. California, 386 U.S. 18 (1967), United States
v. Hasting, 461 U.S. 499 (1983)).
70a
In the present case, as argued above, the prosecutor’s
comment was a response to the defense attorney’s
closing argument and not a comment, direct or indirect, on Sykes’s failure to testify. However, even if the
prosecutor’s comment violated Sykes’s constitutional
rights, it was harmless beyond a reasonable doubt
considering the overwhelming evidence of Sykes’s
guilt.
This Court went through an extensive examination
of the overwhelming evidence presented in this case
in its statement of facts. 65 This includes: the significant amount of the Keshia’s blood left at Keshia’s
house;66 the testimony of Ben Scott that he dropped
Sykes off near Keshia’s house shortly before she
disappeared and when Scott spoke to Sykes on the
phone later that morning he heard the sound of a
child crying;67 that Sykes dropped Keshia’s daughter,
Brooklyn, off at his sister’s house and convinced her
to lie for him; 68 that Sykes took Keshia’s car to
Mississippi and burned it;69 that Keshia’s blood was
found in the bed of Sykes’s pick-up truck; 70 that
Sykes had Keshia’s missing cell phone;71 that Sykes
confessed to Jacob Wiley that he “beat [Keshia] up
and threw her in his truck” and that “he took her and
dumped her. . .where [they] used to go fishing.”72 Not
only did the jury obviously find Sykes guilty by a
65
Sykes, 2024 WL 1947829 at *1-*5.
66
Id. at *1.
67
Id. at *2.
68
Id. at *3.
69
Id.
70
Id. at *2.
71
Id. at *3.
72
Id. at *5.
71a
unanimous vote, but they were also unanimous that
Sykes’s crimes warranted the death penalty.73
As the Supreme Court of the United States has
instructed, “it is the duty of a reviewing court to
consider the trial record as a whole and to ignore
errors that are harmless, including most constitutional violations.” 74 This Court failed to even
address the harmless error doctrine and therefore its
decision must be reversed.
CONCLUSION
For the foregoing reasons, this Court should grant
the State’s application for rehearing, withdraw its
opinion, and affirm Sykes’s conviction and sentence.
Respectfully submitted,
Steve Marshall
Attorney General
s/ John C. Hensley_______
John C. Hensley
Assistant Attorney General
Counsel of Record
73
R. 1734.
74
Gavin, 891 So. 2d at 984 (citing Hasting, 461 U.S. at 510-
11).
72a
CERTIFICATE OF COMPLIANCE
I certify that this brief in support of application for
rehearing complies with the word limitation set forth
in Ala. R. App. P. 40(g) & (f). According to the wordcount function of Microsoft Word, this brief contains
5,133 words from the beginning of the brief through
the conclusion. I further certify that this brief complies with the font requirements of Ala. R. App. P.
32(a)(7). This brief was prepared in the Century
Schoolbook font in 14-point type. See Ala. R. App. P.
32(d).
/s/ John C. Hensley
John C. Hensley
Assistant Attorney General
CERTIFICATE OF SERVICE
I certify that on May 17, 2024, I electronically filed
a copy of the foregoing brief with the clerk of the
court. I also served a copy upon counsel for the
appellant via the United States mail, first class
postage prepaid and addressed as follows:
Angela Setzer
asetzer@eji.org
Sofia Veronica McDonald
smcdonald@eji.org
s/ John C. Hensley
John C. Hensley
Assistant Attorney General
Counsel of Record
State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130-0152
Tel: (334) 353-1209 Fax: (334) 242-7300
E-mail: John.Hensley@alabamaag.gov
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.