Lindsay v. State

326 So.3d 1

Stephon LINDSAY

v.STATE of Alabama

CR-15-1061

Court of Criminal Appeals of Alabama.

March 8, 2019

Opinion Issued on Return on Second Remand February 7, 2020

Rehearing Denied May 15, 2020

Certiorari Denied October 23, 2020

Alabama Supreme Court 1190668

Angela L. Setzer and Alison N. Mollman of Equal Justice Initiative, Montgomery; Paul R. Roberts II, Gadsden; and Scott F. Stewart, Gadsden, for appellant.

Steve Marshall, atty. gen., and Stephen M. Frisby (withdrew 01/11/2019) and Chrstopher R. Reader (on remand), asst. attys. gen., for appellee.

KELLUM, Judge.

The appellant, Stephon Lindsay, was convicted of murdering his 21-month-old daughter, Maliyah Lindsay, an offense defined as capital by § 13A-5-40(a)(15), Ala. Code 1975, because Maliyah was less than 14 years of age. The jury unanimously recommended that Lindsay be sentenced to death. The circuit court followed the jury's recommendation and sentenced Lindsay to death.¹ This appeal, which is automatic in a case involving the death penalty, followed. See § 13A-5-55, Ala. Code 1975.

The State's evidence tended to show that on March 12, 2013, police discovered Maliyah's body in a wooded area after Lindsay confessed to murdering her and told police where he had taken her body. Dr. Valerie Green, medical examiner with the Alabama Department of Forensic Sciences, testified that Maliyah died of "multiple sharp force injuries" to her neck and that the cuts severed her jugular vein and carotid artery. (R. 1811.) The cuts were so deep, Dr. Green said, that Maliyah's spinal cord was visible. Maliyah also had cuts on her chest and chin, defensive wounds on her hands, and bruising around her mouth, which was consistent with someone holding his hand over Maliyah's mouth. (R. 1786.)

Tasmine Thomas, Maliyah's mother, testified that she and Lindsay had two children together and that Maliyah was born in June 2011. She testified that at the time Maliyah was murdered she and Lindsay and the children lived in a two-story apartment on White Avenue in Gadsden. On March 5, 2013, she said, she stayed in the apartment all day and went to the grocery store that evening. When she got back from the store she started feeling sick and went to bed. Lindsay told her that his sister was going to take Maliyah to go stay with her so that Thomas could have a break. Thomas testified:

"[Prosecutor]: Was there anything unusual about the way that [Lindsay] was acting between the time that you last saw Maliyah and when you wanted to go get her?

"[Thomas]: No. He was -– He did what he normally does. Like, he was cleaning a lot downstairs. He was cleaning a lot.

"[Prosecutor]: Was that unusual?

"[Thomas]: No. He cleaned a lot already. But he was doing it a little bit too much.

"[Prosecutor]: Why do you say a little bit too much?

"[Thomas]: Because I smelled a lot of bleach. It was strong.

"[Prosecutor]: Did you ask him about it?

"[Thomas]: I asked him why was he using so much bleach.

"[Prosecutor]: What did he tell you?

"[Thomas]: He said because he liked the smell of bleach when he cleans. Like, he was using bleach Pine-sol."

(R. 1569-70.) Thomas said that on March 11, 2013, she asked Lindsay when he was going to bring Maliyah home. She said that Lindsay left their apartment early that morning and told her that he was going to get Maliyah. She waited for Lindsay about three hours and then telephoned Lindsay's sister. His sister told her that Maliyah had not been with them and that she had not seen Maliyah since March 5. Thomas then telephoned emergency 911.

Det. Thomas Hammonds with the City of Gadsden Police Department testified that he was assigned to investigate the case and that police tried to locate Lindsay and tracked his cellular telephone to an address in Clayton. When Lindsay came out of the door of the residence he asked Lindsay if Maliyah was okay and Lindsay responded, "No, she's not okay" ... "She is not alive." (R. 1600.) He took Lindsay back to the police station and advised him of his Miranda ² rights. Lindsay confessed that he killed Maliyah by cutting her neck, and he told police that he put her body in a bag and took the body to a wooded area. He also said that he took several weapons, an axe and several swords, and disposed of them near the body.

In the circuit court's sentencing order, the court set out the following facts surrounding Lindsay's confession:

"The videotape of [Lindsay's] statement to police was admitted into evidence at trial, in which [Lindsay] talked at length about his religion, Yahweh ben Yahweh, and how he came to be a believer. He said that he was told by Yahweh to kill his daughter. He said that the reason he had to kill Maliyah was because she had become like an idol to him because of her beauty and innocence, and because he loved her too much. Lindsay described how he murdered his daughter, cutting her throat and nearly decapitating the child. He told Hammonds that he used an axe or hatchet to kill the child on the evening of March 5, 2013, at the apartment on White Avenue, while Tasmine and their infant daughter were sleeping upstairs. He said the murder took place in the room beside the kitchen. Lindsay told detectives that during the murder, Maliyah tried to scream but he held his hand over her mouth.

"Lindsay said that he placed Maliyah's body in a tote bag, and put it on the front seat of his car when he left the apartment. He said that he waited until very late to leave with the body, then just started driving. He said he left her body in the bag in the woods off the side of the road. He took the hatchet and his swords to another street and threw them into the woods. He then used Clorox and washing powders to clean up the blood in the apartment. He left the apartment on March 11, 2013, after telling Tasmine he was going to pick up Maliyah at this sister's house. He said that he sold his car, but that he never intended to run away, he just needed the money. Lindsay said he always intended to tell the truth about what he had done to Maliyah.

"Following the directions Lindsay gave, Gadsden police officers went to a wooded area off Plainview Street and began to search. They found Maliyah's body near a bucket in the woods containing a dead puppy. After searching that area, officers brought Lindsay to the scene. He directed them to an area on the side of the mountain off Brentwood Avenue, where he said he threw the hatchet and the swords into the woods. Investigators from Gadsden Police Department, the Etowah County Sheriff's Department, the Etowah County Drug Enforcement Unit, and agents from the Center for Applied Forensics at Jacksonville State University conducted an extensive search of the heavily wooded hillside that went on throughout the night and the following day. Officers found two knives or swords that had belonged to Lindsay, but the hatchet was not recovered, due to the steep terrain and dense woods. On the other side of the road, in a ravine, officers recovered several torn pieces of paper and/or cardboard containing [Lindsay's] religious writings, as well as an empty Clorox bottle."

(C. 115-16.)

In his defense, Lindsay presented the testimony of Dr. Robert Bare, a psychologist at Taylor Hardin Secure Medical Facility ("Taylor Hardin"). Dr. Bare testified that he evaluated Lindsay and that it was his opinion that Lindsay suffered from paranoid schizophrenia with a personality disorder.

"[Dr. Bare]: [W]hen [Lindsay] initially came to [Taylor Hardin] he had -– Mr. Lindsay had exhibited delusions of grandiose delusions that he was the son of Yahweh, that he had been -– that some of the acts that we will talk about in a minute were prompted by his belief in Yahweh and essentially commanded to him by Yahweh."

(R. 1856.) Lindsay was placed on medication and improved, Dr. Bare said.

On cross-examination, Dr. Bare stated that he spoke with many of Lindsay's family members.

"[Prosecutor]: So based upon your conversations with all these family members, none of them were able to tell you about any bizarre or overtly psychotic behavior by Mr. Lindsay before he killed this little girl, right?

"[Dr. Bare]: Correct.

"[Prosecutor]: So all of a sudden he gets down to Taylor Hardin and he walks in the door hallucinating?

"[Dr. Bare]: Apparently. That was in his report, yes.

"....

"[Prosecutor]: And people do sometimes feign, fake, or exaggerate psychotic symptoms in order to get a certain result, do they not?

"[Dr. Bare]: Yes, sir."

(R. 1901-02.) Dr. Bare also testified that he had not seen Lindsay experience any hallucinations but relied on what the staff at Taylor Hardin and Lindsay had told him. He further stated that before Lindsay was brought to Taylor Hardin and while he was incarcerated at the county jail he exhibited no "overt sign of any kind of psychotic behavior." (R. 1903.) He could not say if the hallucinations were caused by Lindsay's mental-health issues or by Lindsay's substance abuse.

The jury found Lindsay guilty of murdering Maliyah. A presentence report was prepared and a sentencing hearing was held before the same jury. The jury unanimously recommended a sentence of death after it found two aggravating circumstances: (1) that Lindsay had previously been convicted of a felony involving the use or threat of violence to the person, § 13A-5-49(2), Ala. Code 1975; and (2) that the murder was especially heinous, atrocious, or cruel as compared to other capital murders, § 13A-5-49(8), Ala. Code 1975.³ The circuit court issued an order sentencing Lindsay to death. This appeal followed.

Standard of Review

Because Lindsay has been sentenced to death, this Court must search the record of the trial proceedings for "plain error." See Rule 45A, Ala. R. App. P. Rule 45A, states:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall 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

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