Altonio Spencer v. State of Alabama (Appeal from Mobile Circuit Court: CC-18-287 and CC-18-288)

• Court: Court of Criminal Appeals of Alabama
• Decided: June 28, 2024
• Docket: CR-2022-1213
• Status: Published

Opinion

Rel: June 28, 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 36104-3741 ((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-2022-1213 _________________________

Altonio Spencer

v.

State of Alabama

Appeal from Mobile Circuit Court (CC-18-287 and CC-18-288)

McCOOL, Judge.

Altonio Spencer appeals his convictions for pharmacy robbery, see

§ 13A-8-51, Ala. Code 1975; and first-degree robbery, see § 13A-8-41, Ala.

Code 1975. The trial court sentenced Spencer to life imprisonment CR-2022-1213

without the possibility of parole for his pharmacy-robbery conviction and

to 240 months' imprisonment for his first-degree-robbery conviction.

Facts and Procedural History

On June 21, 2017, Misty Morton was working as the store manager

at a Walgreens drugstore in Mobile. The drugstore closed at 10:00 p.m.,

and by 10:30 p.m. Morton and another employee, Ivan Lockett, were

walking out of the drugstore when an armed intruder forced them back

inside at gunpoint. Once inside the drugstore, the armed intruder forced

Morton to give him the money from a safe and then made a telephone

call. Two other intruders entered the drugstore shortly thereafter, one

of whom, according to Morton, was Spencer. The armed intruder then

instructed Morton to open the pharmacy, but Morton told him that she

did not have a key to the pharmacy. Spencer and the intruder who had

entered the drugstore with him then "start[ed] trying to open [the

pharmacy] with [a] crowbar and [a] hammer" while the armed intruder

held Morton and Lockett at gunpoint. (R. 227.) When Spencer and his

accomplice were unable to break into the pharmacy, the armed intruder

told Lockett to "ram [his] body into" the door, and Lockett "kept running

at it until he" managed to break into the pharmacy. (R. 228.) The three

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intruders then took "all of the medicine out of the cabinet" and placed it

into a trash can, which they took with them when they fled the scene in

a Honda automobile. (R. 231.) During Morton's testimony, the State

played several videos recorded by the surveillance cameras in the

drugstore, and those videos show Spencer participating in the offenses.

Those videos also reveal that Spencer was armed with a handgun during

the offenses, though he was not the armed intruder who first entered the

drugstore and held Morton and Lockett at gunpoint.

According to Morton, "there were tracking devices inside of the

bottles" that the intruders took from the pharmacy (R. 235), and, shortly

after the intruders left the drugstore, police officers with the Mobile

Police Department were provided with tracking information that led

them to a house in Mobile, where they found the Honda automobile in

which the intruders had fled the scene. One person ran from the house

as the officers approached, but he was quickly apprehended and told the

officers that there were two other people inside the house. The officers

then set up a perimeter around the house, and, when the two occupants

of the house would not "voluntarily come out," "the SWAT team … forced

entry" and took the two occupants, including Spencer, into custody. (R.

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196.) Spencer was found "locked in a closet inside of [a] bedroom," where

he "was sitting on top of" a "large trash bag full of narcotics." (R. 395.)

In addition to those narcotics, the officers found "a lot" of other "narcotics

and controlled substances" throughout the house (R. 251), including one

bottle of "oxycodone" that contained "a tracker that had been put in there

by Walgreens." (R. 279.) The officers also found approximately $6,000

in United States currency, a "money wrapper" on which was printed the

name "Walgreens" (R. 315), and two handguns, one of which looked

similar to the handgun Spencer had in his possession while inside the

drugstore.

Chris Savage was employed as the pharmacy's asset-protection

manager at the time of trial, but he was not employed by the pharmacy

at the time of the offenses. Savage testified as follows regarding the

tracking devices used by the pharmacy:

"Q. Can you explain the mechanics about how the tracker works in a pill bottle?

"A. Inside of the pill bottle they have a tracker that sits on top of a magnet. When it pulls off the magnet, it triggers that as an alert to the corporate system where they track that. That begins the process of tracking that device.

"Q. When it begins tracking the device, does it generate any information or data?

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"A. Yes.

"Q. In what form?

"A. Basically it's a spreadsheet is what we will normally get. About every 10 or 15 seconds it will ping it using wifi. It tracks its location using longitude and latitude, time.

"Q. Who is that information sent to?

"A. In this case it will be -- Blue Tracks is the vendor that had that particular tracker. Then it's sent to our security operations center. They work in conjunction with local law enforcement where the tracker was activated.

"Q. The company that owns the tracker immediately sent it over to the Walgreens security team and then they relayed it to police?

"Q. When that information is generated, is it compiled into a report?

"Q. Is that done every time?

"A. It's always -- it's an electronic report. It's always being generated.

"Q. So that happens automatically; there is not some human being sitting behind a computer typing that information in?

"A. From the moment they activate the tracker.

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"Q. Is that record kept in the regular course of business of Walgreens?

"A. Yes."

(R. 352-353.) The State then proffered the tracking report for admission

into evidence, and the trial court admitted it over Spencer's objection.

Savage also testified, over Spencer's objection, as to the contents of

a "DEA report" that had been created at the pharmacy following the

offenses:

"Q. I want to talk about [the DEA report]. What is it that is reported on that list?

"A. Generally when there is a loss of a C II drug, a Schedule II drug --

"Q. Before you go on, what does the term 'Schedule II' drug mean?

"A. It's a narcotic of some sort that is highly regulated from the government.

"Q. C II, is that a law that lists what certain drugs are?

"Q. So this is listed in law as a controlled substance?

"Q. You said there was a list that generates C II drugs?

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"Q. What is that list?

"A. This is a DEA 106. It's a common practice for the pharmacies when they take an inventory of those C II drugs, if there is missing drugs they have to report it up on the 106 report to the government, the pharmacy, DEA. If drugs are stolen it's the same thing -- lost or stolen -- they have to generate that report which means if there is an event where a robbery occurred or a loss occurred, immediately they have to inventory those drugs in question and then report up any missing.

"Q. The way they do that, do they keep an inventory every time that a certain drug is sold or used at the store?

"A. It's a perpetual tracking type of device. Sold. Received. Then they will do periodic counts, or smart counts at Walgreens. When they do counts they keep a perpetual inventory electronically.

"Q. You are saying that at almost all times on a regular basis there is a list of what drugs are supposed to be at Walgreens?

"Q. Then after drugs are taken they compare what is left to the list of what is supposed to be there?

"Q. That's how the list of what was taken was generated?

"A. That's correct.

"….

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"Q. Were you able to make a comparison to any of the drugs that were recovered?

"Q. What were you comparing?

"A. The drugs listed on the DEA 106 to the pill bottles that were there.

"Q. What did that comparison show you?

"A. They were right on the money.

"Q. When you say 'right on the money,' what does that mean?

"A. As far as the drugs that were listed on the DEA 106 were basically present on the table there."

(R. 357-62.) Although the trial court allowed Savage to provide that

testimony, it refused to admit the DEA report into evidence because it

found that the State had not timely provided the report to Spencer.

The jury found Spencer guilty of pharmacy robbery and first-degree

robbery. During the sentencing hearing, the State presented the trial

court with certified copies of Spencer's four prior convictions, which are

for the offenses of first-degree receipt of stolen property, see § 13A-8-17,

Ala. Code 1975; second-degree assault, see § 13A-6-21, Ala. Code 1975;

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breaking and entering a vehicle, see § 13A-8-11(b), Ala. Code 1975; and

unlawful possession of a firearm, see § 13A-11-72, Ala. Code 1975. The

State then argued that, given those four convictions, the Habitual Felony

Offender Act ("the HFOA"), see § 13A-5-9, Ala. Code 1975, required the

trial court to sentence Spencer to either life imprisonment without the

possibility of parole or life imprisonment for his pharmacy-robbery

conviction. The State noted, though, that § 13A-8-52, Ala. Code 1975,

provides that any person who is convicted of pharmacy robbery is not

eligible for parole. Thus, the State argued that, in this case, the trial

court was required to sentence Spencer to life imprisonment without the

possibility of parole for his pharmacy-robbery conviction. The trial court

agreed with the State and imposed that sentence, finding that it did not

"have the leeway to give [Spencer] any leniency" and was "required by

law, given [Spencer's] past history, to impose a sentence of life in prison

without the possibility of parole." (R. 593.) The trial court sentenced

Spencer to 240 months' imprisonment for his first-degree-robbery

conviction.

Discussion

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Spencer raises several claims on appeal that, he says, entitle him

to relief.

I.

Spencer argues that the trial court erred "in multiple evidentiary

rulings." (Spencer's brief, p. 24.) We address each evidentiary ruling in

turn, keeping in mind that " '[t]he question of admissibility of evidence is

generally left to the discretion of the trial court, and the trial court's

determination on that question will not be reversed except upon a clear

showing of abuse of discretion.' " Windsor v. State, 110 So. 3d 876, 880

(Ala. Crim. App. 2012) (quoting Ex parte Loggins, 771 So. 2d 1093, 1103

(Ala. 2000)). In addition, Rule 45, Ala. R. App. P., states:

"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of … improper admission or rejection of evidence, …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 should appear that the error complained of has probably injuriously affected substantial rights of the parties."

A.

Spencer argues that the trial court erred by allowing Savage "to

testify about the contents of the [DEA] report." (Spencer's brief, p. 25.)

As noted, the trial court allowed Savage to testify that the DEA report

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was a list of the controlled substances that were stolen from the

pharmacy on June 21, 2017; that he had compared the DEA report to the

substances found in the house where Spencer was arrested; and that his

comparison had revealed that the substances listed on the DEA report

were the substances found in that house.

Spencer first argues that Savage's testimony should have been

excluded from evidence because, he says, the State did not timely disclose

the DEA report and he therefore did not have an adequate opportunity

to review it before trial. However, the record indicates that the State

provided Spencer with the DEA report on April 6, 2022 -- five days before

Spencer's trial began -- and Spencer did not request a continuance so that

he could have additional time to review the report. 1 There is also no

indication in the record that the trial court would have refused to grant

a continuance had Spencer requested one.

"In Minnis v. State, 690 So. 2d 521 (Ala. Crim. App. 1996), this Court found that certain evidence should have been, but was not, disclosed to defense counsel before trial; however, this Court stated:

1The State claimed at trial that it did not receive the DEA report

until April 6, 2022, and that it provided Spencer with the report "within 10 minutes of … getting it." (R. 36.) 11 CR-2022-1213

" 'The appellant did not seek a continuance or request a recess. As we noted in McLemore v. State, 562 So. 2d 639, 645 (Ala. Cr. App. 1989):

" ' "Under the circumstances presented here, ... it appears 'that either a recess or continuance would have been sufficient to protect [the appellant's] interests and permit him to review and evaluate this particular evidence in the same manner as had he received this information prior to trial. Having failed to make any showing to the contrary and having failed to request either a continuance or recess, [the appellant] cannot claim error on the part of the trial court in denying his request to exclude the evidence. United States v. Bartle, [835 F.2d 646 (6th Cir. 1987)]; United States v. Kubiak, [704 F.2d 1545 (11th Cir.), cert. denied 464 U.S. 852, 104 S. Ct. 163, 78 L. Ed. 2d 149 (1983) ].' " '

"690 So. 2d at 527."

Jennings v. State, 965 So. 2d 1112, 1120 (Ala. Crim. App. 2006). Thus,

this Court will not hold the trial court in error for admitting Savage's

testimony regarding the DEA report because Spencer received the report

five days before trial and did not request a continuance so that he could

have additional time to review the report.

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Spencer also argues that Savage's testimony should have been

excluded from evidence because of his "lack of personal knowledge about

the content and creation of the DEA report." (Spencer's brief, p. 29.) In

support of that argument, Spencer cites Rule 602, Ala. R. Evid., which

provides that a witness "may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal

knowledge of the matter."

It is true that Savage did not have "personal knowledge about the

content and creation of the DEA report" because he was not employed by

the pharmacy at the time of the offenses. However, that fact simply

means that the DEA report was hearsay that could potentially be

admissible under the business-records exception to the rule against

hearsay. See Rule 803(6), Ala. R. Evid. (providing that business records

are admissible as an exception to the rule against hearsay if certain

foundational criteria are satisfied). As the Advisory Committee's Notes

to Rule 602 explain: "Nothing in Rule 602 prevents a witness, if

authorized under Rule 801 et seq., from relating a hearsay statement."

In Craft v. State, 90 So. 3d 197 (Ala. Crim. App. 2011), this Court

stated:

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" ' " '[A] properly authenticated business record is admissible in evidence when a foundation, as outlined in the Code, is laid by the proponent of the evidence. Section 12- 21-43[, Ala. Code 1975,] requires that it be shown (1) that the record or writing was made as a memorandum or record of an act, transaction, occurrence, or event; (2) that the record was made in the regular course of business; and (3) that it was the regular course of business to make such a memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. See also C. Gamble, McElroy's Alabama Evidence, § 254.01(3) (3d ed. 1977).' "

" 'McDonald v. State, 586 So. 2d 259, 262 (Ala. Cr. App. 1991) (quoting Ex parte Frith, 526 So. 2d 880 (Ala. 1987)).'

"Mester v. State, 755 So. 2d 66, 72-73 n.3 (Ala. Crim. App. 1999))."

Craft, 90 So. 3d at 212.

" ' " 'The [business records] rule does not require that the person who made the entry be the witness who lays the foundation for the introduction of the record into evidence .... Any witness who knows the method used in the business of making records of the kind in question and knows that it was the regular practice of the business to

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make such records at the time of the event in question or within a specified reasonable time thereafter is competent to lay the foundation by testifying that the exhibit is such a record.'

" ' "Ikner v. Miller, 477 So. 2d 387, 390 (Ala. 1985)."

" 'Parker v. State, 587 So. 2d 1072, 1091-92 (Ala. Cr. App. 1991), aff'd, 610 So. 2d 1181 (Ala. 1992) (citations omitted).' "

Craft, 90 So. 3d at 212 (emphasis added).

In this case, Savage testified that he had approximately 20 years'

experience as an "asset protection specialist" (R. 351), that it is the

"common practice" of pharmacies to create and maintain DEA reports as

a "perpetual tracking type of device" for "what drugs are supposed to be"

at the pharmacy, and that pharmacies "have to generate that report … if

there is an event where a robbery occurred." That testimony tended to

demonstrate that Savage "knows the method used in the business of

making records of the kind in question and knows that it was the regular

practice of the business to make such records at the time of the event in

question or within a specified reasonable time thereafter." Craft, 90 So.

3d at 212 (citations omitted). Thus, Savage's testimony was sufficient to

authenticate the DEA report under the business-records exception to the

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rule against hearsay; the fact that he did not create the DEA report

himself was a fact that went to the weight to be afforded his testimony

regarding the contents of the report, not its admissibility. Accordingly,

the trial court did not err by allowing Savage to testify that the DEA

report was a list of the controlled substances that were stolen from the

pharmacy on June 21, 2017.

B.

Spencer argues that the trial court erred by admitting the tracking

report. As noted, the tracking report detailed the longitude and latitude

of a tracking device in one of the pharmacy's pill bottles as that device

traveled from the pharmacy to the house where Spencer was arrested.

However, Spencer fails to explain how he was prejudiced by the tracking

report. Instead, Spencer merely makes the cursory allegation that he did

not have "a reasonable opportunity to review and investigate the

[tracking report] to prepare and present a complete defense" (Spencer's

brief, p. 30), without explaining how additional time to review the report

would have aided his defense. Spencer's failure to explain how he was

prejudiced by the tracking report provides a basis, in and of itself, for

denying him relief on this claim. See Kemp v. State, 314 So. 3d 230, 239-

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40 (Ala. Crim. App. 2019) ("Kemp's failure to argue that he was

prejudiced by the admission of the allegedly inadmissible hearsay is

sufficient in and of itself to deny Kemp relief on this issue.").

Moreover, we fail to see how Spencer was prejudiced by the tracking

report. The tracking report indicated nothing more than that a bottle of

pills had been taken from the pharmacy to the house where Spencer was

arrested on the date the offenses occurred. However, the actual tracking

device was admitted into evidence, and the State provided a witness who

testified that the device had been found in the house where Spencer was

arrested. Furthermore, the evidence indicating that Spencer stole

controlled substances from the pharmacy was overwhelming and

virtually ironclad. Thus, it is clear to this Court that Spencer's

substantial rights were not affected, nor was he otherwise prejudiced, by

a report that merely detailed the route the tracking device had traveled

on its way from the pharmacy to the house where Spencer was arrested.

For that reason as well, Spencer is not entitled to relief on this claim.

C.

Spencer argues that the trial court erred by admitting the videos

recorded by the surveillance cameras in the drugstore. In support of that

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argument, Spencer claims that "the State provided a working file of the

videos less than a week before trial" and that, as a result, he "had

minimal time to review the videos presented at trial." (Spencer's brief,

p. 32.) Spencer also argues that he "receiv[ed] a working copy of only a

few of the … videos." (Id., p. 33.) However, Spencer did not request a

continuance so that he could have additional time to review the videos,

and, as we have already noted, there is no indication in the record that

the trial court would have refused to grant a continuance had Spencer

requested one. Thus, Spencer is not entitled to relief on this claim. See

Jennings, 965 So. 2d at 1120 (holding that, because the defendant had

"failed to request either a continuance or recess, [he] [could not] claim

error on the part of the trial court in denying his request to exclude ...

evidence" that had not been timely disclosed to him (citations omitted)).

II.

Spencer argues that his convictions violate the Double Jeopardy

Clause of the Fifth Amendment to the United States Constitution

because, he says, first-degree robbery is a lesser-included offense of

pharmacy robbery. Spencer did not raise this claim below. However,

"[m]ultiple convictions in a single proceeding for both a greater- and a

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lesser-included offense has been recognized as a double-jeopardy claim

that implicates the trial court's jurisdiction," and jurisdictional claims

may be raised for the first time on appeal. T.D.F. v. State, 264 So. 3d

108, 118 (Ala. Crim. App. 2018) (citing Ex parte Benefield, 932 So. 2d 92

(Ala. 2005)).

"[T]he Double Jeopardy Clause prohibits convictions for 'both a

greater offense and a lesser offense included within the greater offense.' "

Tice v. State, 367 So. 3d 1168, 1170 (Ala. Crim. App. 2022) (quoting

Williams v. State, 104 So. 3d 254, 265 (Ala. Crim. App. 2012)).

"In Ford v. State, 612 So. 2d 1317 (Ala. Crim. App. 1992), this Court explained:

" ' " '[T]o be a lesser included offense of one charged in an indictment, the lesser offense must be one that is necessarily included, in all of its essential elements, in the greater offense charged[,]' Payne v. State, 391 So. 2d 140, 143 (Ala. Cr. App.), writ denied, 391 So. 2d 146 (Ala. 1980), ... unless it is so declared by statute."

" 'James v. State, 549 So. 2d 562, 564 (Ala. Cr. App. 1989). "Whether a crime constitutes a lesser- included offense is to be determined on a case-by- case basis." Aucoin v. State, 548 So. 2d 1053, 1057 (Ala. Cr. App. 1989). "In determining whether one offense is a lesser included offense of the charged offense, the potential relationship of the two

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offenses must be considered not only in the abstract terms of the defining statutes but … also ... in light of the particular facts of each case." Ingram v. State, 570 So. 2d 835, 837 (Ala. Cr. App. 1990) (citing Ex parte Jordan, 486 So. 2d 485, 488 (Ala. 1986); emphasis in original). See also Farmer v. State, 565 So. 2d 1238 (Ala. Cr. App. 1990).'

"612 So. 2d at 1318. The 'particular facts' of each case are those facts alleged in the indictment. Thus, 'the statutory elements of the offenses and facts alleged in an indictment -- not the evidence presented at trial or the factual basis provided at the guilty-plea colloquy -- are the factors that determine whether one offense is included in another.' Johnson v. State, 922 So. 2d 137, 143 (Ala. Crim. App. 2005)."

Williams v. State, 104 So. 3d 254, 264 (Ala. Crim. App. 2012). Thus, to

determine whether first-degree robbery is a lesser-included offense of

pharmacy robbery in this case, we begin by looking at the statutory

elements of those offenses.

Section 13A-8-41 provides that a person commits first-degree

robbery if he uses or threatens the use of force against another person

during the course of committing a theft and is either armed with a deadly

weapon or dangerous instrument or causes serious physical injury to

another person. Section 13A-8-51(2) provides that a person commits

pharmacy robbery if he commits a theft of a controlled substance from a

"pharmacy," as that term is defined by § 13A-8-51(1), and, in the course

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of committing that theft, "violates Section 13A-8-41." (Emphasis added.)

Thus, first-degree robbery is "necessarily included, in all of its essential

elements, in [pharmacy robbery]." Williams, 104 So. 3d at 264 (citations

omitted). However, that fact alone does not mean that first-degree

robbery is a lesser-included offense of pharmacy robbery in this

particular case. Rather, as noted, to make that determination we must

look at the specific facts of the case as alleged in the indictments.

The indictment charging Spencer with first-degree robbery states:

"The GRAND JURY of said county charge, that, before the finding of this indictment Altonio Spencer whose name is to the Grand Jury otherwise unknown than as stated, did, on or about June 23, 2017, in the course of committing or attempting to commit a theft of property to-wit: United States Currency and/or Narcotics, the property of Walgreens, use or threaten the imminent use of force against the person of Misty Morton and/or Ivan Lockett, with intent to compel acquiescence to the taking of or escaping with the property, while the said Altonio Spencer or another participant was armed with a deadly weapon or dangerous instrument, to-wit: a gun, in violation of § 13A-8-41(a)(1) of the Code of Alabama, against the peace and dignity of the State of Alabama."

(C. 21.)

The indictment charging Spencer with pharmacy robbery states:

"The GRAND JURY of said county charge, that, before the finding of this indictment Altonio Spencer whose name is to the Grand Jury otherwise unknown than as stated, did, on or about June 23, 2017, in the course of committing or

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attempting to commit a theft of property to-wit: Hydrocodone and/or other assorted controlled substance, the property of Walgreens, use or threaten the imminent use of force against the person of Misty Morton and/or Ivan Lockett, with intent to compel acquiescence to the taking of or escaping with the property, while the said Altonio Spencer or another participant was armed with a deadly weapon or dangerous instrument, to-wit: a gun, in violation of § 13A-8-41(a)(1) and 13A-8-51 of the Code of Alabama, against the peace and dignity of the State of Alabama."

(C. 17.)

The State argues that first-degree robbery is not a lesser-included

offense of pharmacy robbery in this particular case because the first-

degree-robbery indictment charged Spencer with the theft of "United

States Currency and/or Narcotics," whereas the pharmacy-robbery

indictment charged him with the theft of "Hydrocodone and/or other

assorted controlled substance." Thus, the State argues, "Spencer could

commit one offense, e.g., stealing over $6,000 from Walgreens, without

committing the other, e.g., stealing a slew of controlled substances."

(State's brief, p. 16.) Based on this Court's holding in Gholston v. State,

57 So. 3d 178 (Ala. Crim. App. 2010), we are not persuaded by the State's

argument.

In Gholston, Ronnie Lee Gholston was convicted of both first-degree

theft of property and first-degree robbery. On appeal, Gholston argued

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that his convictions violated the Double Jeopardy Clause because, he

said, the theft offense was included in the robbery offense. In addressing

that claim, this Court first noted that the theft indictment had charged

Gholston with the theft of a 2003 Ford Taurus automobile owned by A.C.,

and the robbery indictment had charged Gholston with robbing A.C.

during the course of committing a theft of "Lawful United States

Currency and/or a 2003 Ford Taurus." Gholston, 57 So. 3d at 185. Then,

after setting forth the statutory elements of first-degree theft of property

and first-degree robbery, the Court stated:

"Gholston was charged with first-degree theft for stealing A.C.'s 2003 Ford Taurus automobile. Gholston was also charged with first-degree robbery for threatening the use of force while armed with a deadly weapon while committing a theft of 'Lawful United States Currency and/or a 2003 Ford Taurus' (C.R. 13) (emphasis added). The circuit court instructed the jury that it could find Gholston guilty of first- degree robbery based on the underlying theft of A.C.'s 2003 Ford Taurus. (R. 776.) Therefore, the jury could have found Gholston guilty of first-degree theft and first-degree robbery based on the unlawful taking of the same property, i.e., a 2003 Ford Taurus.

"Accordingly, '[b]ased on the statutory elements of the crimes and the facts alleged in the indictments, it is clear that the theft forming the basis for the theft [conviction could have been] the same theft underlying the robbery [conviction].' Crayton v. State, 949 So. 2d 976, 978 (Ala. Crim. App. 2006); see also Deardorff v. State, 6 So. 3d 1205, 1215 (Ala. Crim. App. 2004) (holding that first-degree theft of property was a

23 CR-2022-1213

lesser-included offense of robbery; therefore, Deardorff's convictions for first-degree theft of property and murder made capital because it was committed during the course of a robbery violated double-jeopardy principles). Consequently, the first-degree theft of property offense, as alleged in the indictment, was a lesser-included offense of the first-degree robbery offense, and Gholston's convictions for both crimes violate the Double Jeopardy Clause of the Fifth Amendment."

Gholston, 57 So. 3d at 185-86.

In this case, the pharmacy-robbery indictment charged Spencer

with committing robbery "against the person of Misty Morton and/or Ivan

Lockett" while committing a theft of "Hydrocodone and/or other assorted

controlled substance." The first-degree-robbery indictment charged

Spencer with committing robbery "against the person of Misty Morton

and/or Ivan Lockett" while committing a theft of "United States Currency

and/or Narcotics." (Emphasis added.) Consistent with that indictment,

the trial court instructed the jury that, to convict Spencer of first-degree

robbery, it had to find, among other facts, that Spencer had "committed

or attempted to commit the theft of U.S. currency and/or narcotics." (R.

554 (emphasis added).)

Thus, as was the case in Gholston, "it is clear that the theft forming

the basis for the [first-degree-robbery] [conviction could have been] the

same theft underlying the [pharmacy-]robbery [conviction]." Gholston,

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57 So. 3d at 185 (citation omitted). In other words, the jury could have

found that Spencer committed pharmacy robbery because he threatened

the use of force against Morton and Lockett while he was armed with a

deadly weapon and was committing a theft of substances from the

pharmacy, and the jury could have also found that Spencer committed

first-degree robbery based on those same facts, i.e., that he threatened

the use of force against Morton and Lockett while he was armed with a

deadly weapon and was committing a theft of substances from the

pharmacy. 2 Therefore, Spencer's "first-degree [robbery] offense, as

alleged in the indictment, was a lesser-included offense of the [pharmacy]

robbery offense, and [Spencer's] convictions for both crimes violate the

Double Jeopardy Clause of the Fifth Amendment." Gholston, 57 So. 3d

at 185.

"The proper remedy when a defendant is convicted of both a greater

and a lesser-included offense is to vacate the conviction and the sentence

for the lesser-included offense." Williams, 104 So. 3d at 265. Accordingly,

2The fact that one indictment alleged the theft of "Hydrocodone and/or other assorted controlled substance" and that the other alleged the theft of "Narcotics" does not salvage the first-degree-robbery conviction. It is clear that the substances at issue were the substances in the pharmacy. 25 CR-2022-1213

we remand this case to the trial court with instructions for that court to

vacate Spencer's first-degree-robbery conviction.

III.

Spencer argues that he was "improperly sentenced" for his

pharmacy-robbery conviction. (Spencer's brief, p. 39.) Specifically,

Spencer argues that the trial court, relying on § 13A-8-52(b), "believe[ed]

the only legal punishment it could impose was life [imprisonment]

without parole." (Spencer's brief, p. 39.) According to Spencer, § 13A-8-

52(b) is not applicable in this case, and he argues that the trial court was

instead required to sentence him under the HFOA, which, he says, would

have resulted in a sentence of either life imprisonment without the

possibility of parole or life imprisonment.

Section 13A-8-52 states:

"(a) Upon conviction of the criminal offense of 'pharmacy robbery' as defined in Section 13A-8-51(2), the offender shall be imprisoned at hard labor for not less than 10 years nor more than 99 years and shall be ineligible for consideration for parole, probation or suspension of sentence.

"(b) On a second or subsequent conviction under this article, the offender shall be imprisoned for the remainder of his natural life and shall be ineligible for consideration for parole, probation or suspension of sentence."

26 CR-2022-1213

(Emphasis added.) Thus, a defendant who is convicted of pharmacy

robbery is not to be sentenced under § 13A-8-52(b) unless he also has a

prior conviction for pharmacy robbery. See Hannah v. State, 627 So. 2d

1090, 1093 (Ala. Crim. App. 1992) ("If any of the appellant's prior

convictions were for pharmacy robbery, he should have been sentenced

under § 13A-8-52(b), Code of Alabama 1975. On the other hand, if none

of the appellant's prior convictions were for pharmacy robbery, the trial

court must apply the enhancement provisions of § 13A-5-9.").

As noted, the four prior convictions that the State proved at

Spencer's sentencing hearing are for the offenses of first-degree receipt

of stolen property, second-degree assault, breaking and entering a

vehicle, and unlawful possession of a firearm. Thus, because none of

Spencer's prior convictions are for pharmacy robbery, he correctly argues

that the mandatory sentence of life imprisonment without the possibility

of parole required by § 13A-8-52(b) is inapplicable in this case. Instead,

the trial court was required to apply the HFOA to Spencer's pharmacy-

robbery conviction. Hannah, supra. However, contrary to Spencer's

belief, it appears that the trial court did apply the HFOA to that

conviction but recognized that the only sentence it could impose under

27 CR-2022-1213

the HFOA was life imprisonment without the possibility of parole. Given

the specific facts of this case, that conclusion was correct.

Spencer's four prior convictions are for Class B and Class C felony

offenses. 3 The HFOA provides that, when a defendant has at least three

prior felony convictions but no prior convictions for a Class A felony, then

upon conviction of a Class A felony (such as pharmacy robbery) "he or she

must be punished by imprisonment for life or life without the possibility

of parole, in the discretion of the trial court." § 13A-5-9(c)(3). Thus, the

minimum sentence Spencer could receive for his pharmacy-robbery

conviction is life imprisonment -- a fact he concedes. That fact is

significant because § 13A-8-51(a) and (b) both provide that a person who

is convicted of pharmacy robbery "shall be ineligible for consideration for

parole, probation or suspension of sentence." (Emphasis added.) In other

words, the trial court correctly recognized that a sentence of life

imprisonment under the HFOA would effectively be a sentence of life

imprisonment without the possibility of parole because no person who is

convicted of pharmacy robbery is eligible for parole. Therefore, the trial

3First-degree receipt of stolen property is a Class B felony. Second- degree assault, breaking and entering a vehicle, and unlawful possession of a firearm are Class C felonies. 28 CR-2022-1213

court did not "improperly sentence" Spencer for his pharmacy-robbery

IV.

Spencer argues that the trial court "erred in failing to conduct even

a preliminary inquiry into [his] competency prior to sentencing."

(Spencer's brief, p. 34.) According to Spencer, "reasonable grounds

existed to doubt [his] competency to proceed with sentencing," which, he

says, required the trial court to order "a mental evaluation … prior to

sentencing, and to order a competency hearing if necessary." (Id., p. 38.)

Some procedural history is necessary for a clear understanding of this

claim.

The sentencing hearing was scheduled for August 11, 2022. On

August 8, 2022, defense counsel filed a "Motion for Rule 11[, Ala. R. Crim.

P.,] Evaluation." (C. 116.) That motion, which noted that Spencer still

had four charges pending against him, stated:

"These cases originated in 2017.

"Spencer has previously appeared before this court.

"Upon information and belief, he has never had a Rule 11 completed or mental evaluation ordered.

29 CR-2022-1213

"Counsel and [Spencer] have completed the trial on the first two counts. Spencer was convicted.

"Upon receipt of the pre-sentence investigation, it was noted that Spencer is being treated and receiving prescription medication for a serious mental illness.

"Counsel of record did not have knowledge of the diagnosis during the preparation of the prior cases.

"Counsel respectfully requests that this court order a mental evaluation for [Spencer] in the instant case.

"As a precautionary measure, counsel … respectfully requests that the evaluation encompass a time-of-offense evaluation for [Spencer's] remaining charges.

"Counsel is requesting a lawyer's continuance of the hearing due to a personal conflict on August 11, 2022."

(Id.) The trial court granted defense counsel's request for a continuance

and scheduled a hearing for August 15, 2022.

At the August 15, 2022, hearing, the following colloquy occurred:

"THE COURT: This is State of Alabama versus Altonio Spencer, CC-18-287, 288, 289, 286, 291, and 292. Now, the first two cases, Mr. Spencer has stood trial for and been convicted for. What is before the court is to impose sentence on those cases. In the meantime, with regard to the other cases the defendant has filed a motion for a Rule 11 evaluation and a motion to reset these cases for disposition for the court to determine that a Rule 11 evaluation is called for.

"Let the record reflect that Mr. Spencer is here in court with [defense counsel]. Let's talk about your motion that Mr.

30 CR-2022-1213

Spencer be evaluated pursuant to Rule 11 of the Alabama Rules of Criminal Procedure.

"[DEFENSE COUNSEL]: I think maybe in the case there may have been some lost in translation. My prayer for relief just asks for a continuance of the hearing. On the last hearing that we had I received the [presentence investigative report]. I received the information about the diagnosis, medication, all those things. Your Honor said I should take some investigation and try to find out what is there. I have not completed that investigation which is why I didn't ask that you rule on the motion. I just ask that you continue the hearing.

".….

"THE COURT: I understand. [State,] do you have any difficulty with us resetting this …?

"[THE STATE]: Yes, I do. If I can explain that, the test for a Rule 11 evaluation is not does the defendant have a mental disease or defect and what are the records relating to it. It's that the defendant lacks sufficient present ability to assist his or her counsel by consulting with a reasonable degree of rational understanding of the facts and legal proceedings against the defendant.

"There has been mention that after the [presentence investigative report] [defense counsel] learned that [Spencer] had a disorder that he receives treatment for. There has been no showing whatsoever that from when this originated in 2017 to any pre-trial issues, during the trial, and now during sentencing, the defendant has ever shown a lack of rational understanding of the facts, lack of rational understanding of the proceeding against him, or lack of ability to assist his counsel in any of the matters associated with this case.

31 CR-2022-1213

"THE COURT: I think what may be a little confusing -- [defense counsel], correct me if I am wrong. I don't know with regard to the two cases where Mr. Spencer has been convicted of that that is an issue. I think that [defense counsel] is referring to the cases that are yet to come that are set for disposition today. Since there may be an offer that could potentially resolve all of his cases, he is asking that the sentence be postponed along with the disposition. I don't think there is an issue with the two cases that he has been convicted on. I could proceed on and sentence him today in those cases. I'm hearing you say, let me have an opportunity to look at the mental status and to take all of this into consideration along with a global offer.

"[DEFENSE COUNSEL]: Correct. Whether you sentence him separately on that or not, I think right now I'm at a lack of information to do that. With respect to the State's response, quite frankly, I asked specifically for a reset. I did not ask to argue the merits of the motion. If I were to proffer to the court, my concern would be the outstanding cases and them trailing the current cases. Just at the outset, number one, I don't think myself or the State is in a position to presume what a person suffers from bipolar or schizophrenia present as. Myself being a person that has practiced extensively in the probate court, there are some high functioning people who suffer from bipolar schizophrenia at any given time and my ability to assess to their rational appreciation or their rational decision making process, that's beyond my -- not the scope of my responsibility.

"With respect to the remaining decision, even if we were to take just the hearings, without getting into conversations with my client about specific pieces of evidence that we reviewed, specific pieces of evidence we have had to go through, the appreciation of whether or not those things going forward would impact his decision on making a global offer or not. Just for what has been before the court, we sat here and had a 30-minute hearing on a telephone call which was

32 CR-2022-1213

recorded about certain things. My client to this day has been fixated and maintained even with several conversations in court about the sentencing ranges and all those things that there are certain outcomes that just are not present before the court in these cases.

"THE COURT: I understand. I'm inclined to give you some leeway to get all that done. I think we need to bring it to a head.

"[DEFENSE COUNSEL]: Sure. If you want to put them all on the same day, we can do that.

"I understand it is a blind plea. What is important here, if I'm in a conversation with my client and my client does not appreciate the ramifications of, say, accepting and trying each one of those cases --

"THE COURT: We may have to deal with that. I'm going to give you some extra time to do what you feel like you need to do to get information. We will set it for October 6[, 2022]."

(Supp. R. 3-9.)

At the October 6, 2022, hearing, the following colloquy occurred:

"THE COURT: State of Alabama versus Altonio Spencer, CC 18-287 and 288. The purpose of the hearing today is to impose sentence on Mr. Spencer. By way of reference, the jury found Mr. Spencer guilty by unanimous verdict on April 14, 2022. The court ordered a [presentence investigative report]. It was received by the court on July 6 of this year. At that point in time prior to sentencing, [defense counsel] requested that the court reset the sentencing to allow him to make an inquiry into certain matters including the mental status of Mr. Spencer. That was filed by [defense

33 CR-2022-1213

counsel] on April 8 of this year. Have we gotten the report back?

"[DEFENSE COUNSEL]: We don't have a mental evaluation. There was an objection filed by the State. Well, I asked for additional time to inquire whether or not there were any current records regarding the mental status. I was able to secure some records from the metro jail which would confirm that Mr. Spencer has been receiving, in fact, mental- health treatment since his initial admission to the metro jail, including mental-health treatment from the Department of Corrections. The diagnoses that are listed in the [presentence investigative report] at least one of which I believe by statute would be considered serious mental illness. I'm not obviously a psychiatric physician or psychologist who is capable of determining whether or not Mr. Spencer at different times or even at times during our representation was suffering from any symptoms of a bipolar disorder or the manic disorders that are listed.

"That end, he does have the remaining decision to be made on cases in which -- I don't know what the status of the State's offer would be -- I have had interactions with him. At the very least a person suffering from bipolar disorder or schizophrenia do[es] at some time hold fixed delusions about certain things. I would not be capable of assessing whether or not he was impacted by that.

"THE COURT: What are you asking me to do at this point? It looks to me as though -- I don't know what Mr. Spencer's mental condition was at any time prior to and including the trial of these two cases and the jury's guilty verdict in these two cases and the court setting it down for sentencing. I don't know of any legal precedent that would allow me to go back and inquire as to his mental state after these cases have been submitted to the jury, the jury determined their verdict, and I set it for sentencing. If you have some legal authority for me to look at that gives me

34 CR-2022-1213

authority to consider that, I would be happy to do that. I suspect that the law is that it would be mandatory for the court to proceed on with the sentencing in these two cases and perhaps look at the mental condition of Mr. Spencer as it applies in the other cases. I don't have any legal authority that says that either.

"I guess, I'm looking to you to see if you have any legal precedence that addresses the situation. It's a bit unusual that we get a request for a mental evaluation between the jury's verdict of guilty and the court's adjudication of guilty and the imposition of sentence. If there is such a case out there I would like to read it.

"[DEFENSE COUNSEL]: I don't have a specific case cite on that. You know, obviously I understand the State's challenge. With respect to this I do think he would definitely be entitled to the Rule 11 on the remaining cases.

"THE COURT: I appreciate that. I will order that on the remaining cases for sure. I just don't know that I can do anything that would slow the sentencing process down here in these two cases.

"[DEFENSE COUNSEL]: If anything, I think at this stage if Your Honor is inclined to proceed with sentencing if I could go on record and note for purposes of appeal that I have given notice to the court. I received notice of conditions that to some degree I think -- I can look back toward certain interactions. Without a full appreciation of what the picture may have been I might not have had an understanding of what the decisions being made could have reflected. With that said, I would like to preserve the issue of the request for Rule 11 at this time for appeal in the event that on a future review, it is found that he should have been entitled to that in the previous cases.

35 CR-2022-1213

"THE COURT: So noted. I'm happy to note that for the record. I have no problem with that for the record. Other than that, … is there any reason why the court should not proceed on with the sentencing? Would you like a week or so to look at that? I don't have a problem with that. I want you to have your best foot forward.

"I'm looking for legal authority. He has been found guilty, determined to be guilty by a jury. I have adjudicated him guilty and the only reason he has not been sentenced is that you have raised this issue about his mental competency. I don't think you are going to find a case, but I don't want you to be unable to push forward. I will give you until Tuesday to find a case.

"[DEFENSE COUNSEL]: In all candor to the court, I did some research following the State's response. I did not find anything that would be pinpoint on this issue. Frankly, I have not had it happen before. If we were to give a date, can I file a written response and come back? I'm set to start a case … on Tuesday. If you set me on Tuesday morning maybe I can check in there first and then come here.

"[THE STATE]: Before we make the decision to reset can I just be heard on these grounds?

"THE COURT: Yes.

"[THE STATE]: The written response that I filed to their request for Rule 11 lays out the … law that is relevant to the issue of whether or not a defendant is even entitled to an evaluation for the competency.

"THE COURT: At this stage of the sentencing?

"[THE STATE]: At any stage, period, regardless of what is happening. It's whether or not they are entitled to the

36 CR-2022-1213

evaluation at all. In everything that [defense counsel] has said there has been no direct statement that [Spencer] has been unable to assist his counsel or present any issues that would lead him to believe he is not able to assist counsel. The only allegation that has been made is … [Spencer] has a mental disease. The caselaw says -- and I will quote it exactly -- 'Proof of the incompetency of an accused to stand trial involves more than simply a mere showing that they have mental problems for psychological difficulties. The competency of an accused to stand trial is determined by whether at the time of the trial' -- again, now we are talking about sentencing, so replace 'trial' to 'sentencing' -- 'he has sufficient present ability to consult his attorney with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.

"Even if we take at face value that [Spencer] has bipolar schizophrenia, unless [defense counsel] is able to say definitively that there have been issues that have presented during his representation … that leads him as counsel to raise a question as to whether or not [Spencer] has a rational and factual understanding of the proceedings against him and has presented some difficulties in assisting [defense counsel] in preparing for this sentencing hearing, then that Rule 11 evaluation should not be granted. There has been no representation of that; just that I have discovered that he has a mental disease.

"THE COURT: I think you are probably 100 percent correct in your argument. I don't think [defense counsel] is going to find caselaw to the contrary. [Defense counsel], your response is due by Tuesday. At that point in time, if I think we need oral argument I will set it down."

(Supp. R. 10-17.) There is no indication in the record that defense counsel

ever provided the trial court with any caselaw or other legal authority.

37 CR-2022-1213

The trial court held the sentencing hearing on October 13, 2022,

and, before sentencing Spencer, allowed defense counsel to make a final

argument regarding the request for a mental-competency examination.

Defense counsel argued that he had "proceeded to trial in the face of

significant information that may call a rational understanding of the

defendant into question," and he disagreed with the State's argument

that the trial court was not "authorized … to entertain a mental

evaluation at this time." (R. 577.) The trial court then asked defense

counsel how the sentencing hearing would be affected by "information

that … perhaps is out there" regarding Spencer's mental competency (R.

581), and counsel replied that "it might impact the [court's] ruling on

whether or not [Spencer] is to be housed at a certain type of facility." (R.

582.) After the trial court stated that it had "no control over that,"

defense counsel stated:

"All I'm saying is, I am merely offering it for the court's discretion and information as well as preservation of the record. I do think that as to the specific question of whether or not it could be reviewed at the sentencing phase, I believe that there is no actual authority for preclusion."

38 CR-2022-1213

(Id.) The trial court then proceeded to sentence Spencer and, at the

conclusion of the hearing, granted defense counsel's "motion for a mental

evaluation … in the other cases." (R. 594.)

As noted, Spencer argues that "reasonable grounds existed to doubt

[his] competency to proceed with sentencing," which, he says, required

the trial court to order "a mental evaluation … prior to sentencing, and

to order a competency hearing if necessary." Initially, we conclude that

this issue was not preserved for appellate review.

It is well settled that, to preserve an issue for appellate review, the

issue must be specifically presented to the trial court. Collier v. State,

293 So. 3d 961, 965 (Ala. Crim. App. 2019). " ' "The purpose of requiring

a specific objection to preserve an issue for appellate review is to put the

trial judge on notice of the alleged error," ' " thereby giving that court an

opportunity to correct the alleged error at trial. Id. (quoting Ex parte

Coulliette, 857 So.2d 793, 795 (Ala. 2003), quoting in turn Ex parte

Works, 640 So.2d 1056, 1058 (Ala. 1994)). Thus, a trial court will not be

held in error on grounds not assigned at trial, Downey v. State, 370 So.

3d 626, 634 (Ala. Crim. App. 2022), and it is the objecting party's duty to

provide the court with an objection specific enough to ensure that the

39 CR-2022-1213

court understands exactly what it is being asked to do. See Thomas v.

State, 142 So. 3d 1264, 1268 (Ala. Crim. App. 2013) (noting that an

objection "must be specific enough to put the trial court on notice of any

alleged error" (citation omitted)). Of course, " 'magic words' are not

required" to preserve an issue for appellate review, but it must be "clear

from the record that the trial court was aware of the basis of the

objection." Nash v. State, 229 So. 3d 1112, 1114 (Ala. Crim. App. 2017).

As evidenced by the foregoing procedural history, defense counsel

made extensive arguments to the trial court regarding the need for a

mental-competency examination for Spencer. However, nowhere in those

arguments or in his written motion did defense counsel ever argue that

Spencer was not mentally competent to proceed with the sentencing

hearing. Rather, although defense counsel's arguments are far from a

model of clarity, it appears that counsel attempted to raise a belated

argument that Spencer was entitled to a mental examination to

determine whether he had been competent to stand trial and/or to

determine his mental state at the time of the offenses. In fact, at the

August 15, 2022, hearing, the trial court expressly stated that it "[did

not] know with regard to the two cases Spencer has been convicted on

40 CR-2022-1213

that [his mental competency] is an issue," that it "th[ought] [defense

counsel] [was] referring to the cases that are yet to come," and that it

"could proceed on and sentence [Spencer]" at that time for his pharmacy-

robbery and first-degree-robbery convictions, and the court asked defense

counsel to "correct [the court] if [it was] wrong." It is clear, then, that the

trial court did not believe defense counsel was challenging Spencer's

mental competency to proceed with the sentencing hearing, and counsel

did not attempt to correct the court's belief at that time, despite being

given an express opportunity to do so, or at any subsequent time. Thus,

we conclude that this issue was not preserved for appellate review. To

hold otherwise would be to hold the trial court in error for an issue that

the court clearly did not believe had been presented to it, and it was

Spencer's duty to ensure that the trial court understood the nature of his

request.

Moreover, even if it can be said that Spencer raised this claim

below, we find it to be without merit. Rule 11.1, Ala. R. Crim. P., states:

"A defendant is mentally incompetent to stand trial or to be sentenced for an offense if that defendant lacks sufficient present ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant."

41 CR-2022-1213

Rule 11.2, Ala. R. Crim. P., provides that a defendant may petition the

trial court for a mental evaluation to assist the court in determining

whether he has the "present mental condition and competency" to stand

trial or to be sentenced. However,

" ' "[a] defendant does not have a right to a mental examination whenever he requests one, and, absent such a right, the trial court is the screening agent of such requests. Robinson v. State, 428 So. 2d 167 (Ala. Cr. App. 1982); Beauregard v. State, 372 So. 2d 37 (Ala. Cr. App.), cert. denied, 372 So. 2d 44 (Ala. 1979). The defendant bears the burden of persuading the court that a reasonable and bona fide doubt exists as to the defendant's mental competency, and this is a matter within the discretion of the trial court. Miles v. State, 408 So. 2d 158 (Ala. Cr. App. 1981), cert. denied, 408 So. 2d 163 (Ala. 1982). In determining whether an investigation into the defendant's [competency] is required, the trial court must determine if any factual data establish a reasonable ground to doubt the defendant's [competency]. Beauregard, 372 So. 2d at 43. Where the trial court finds that the evidence presents no reasonable grounds to doubt the defendant's [competency], the standard of appellate review is whether the trial court abused its discretion. Id." ' "

Harrison v. State, 905 So. 2d 858, 861 (Ala. Crim. App. 2005) (quoting

Ingram v. State, 779 So. 2d 1225, 1270-71 (Ala. Crim. App. 1999), quoting

in turn Cliff v. State, 518 So. 2d 786, 790 (Ala. Crim. App. 1987)).

" ' "In the absence of any evidence, the mere allegations by counsel that the defendant is incompetent to stand trial do not establish reasonable grounds to doubt the defendant's

42 CR-2022-1213

sanity and warrant an inquiry into his competency." ' [Tankersley v. State, 724 So. 2d 557, 565 (Ala. Crim. App. 1998)], quoting Cliff [v. State], 518 So. 2d [786,] 791 [(Ala. Crim. App. 1987)].

" ' "[N]ot every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges." [Card v. Singletary, 981 F.2d 481] at 487-88 [(11th Cir. 1992)] (quoting United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir.), cert. denied, 469 U.S. 1193, 105 S. Ct. 972, 83 L. Ed. 2d 975 (1985)). Similarly, neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial. McCune v. Estelle, 534 F.2d 611, 612 (5th Cir. 1976). The fact that a defendant has been treated with anti- psychotic drugs does not per se render him incompetent to stand trial. Fallada [v. Dugger], 819 F.2d [1564] at 1569 [(11th Cir. 1987)].'

"Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995)."

Hodges v. State, 926 So. 2d 1060, 1068-69 (Ala. Crim. App. 2005).

At no point during the proceedings below did defense counsel ever

allege, much less present evidence indicating, that Spencer " 'lack[ed]

sufficient present ability to assist in his … defense' " at the sentencing

hearing. Hodges, 926 So. 2d at 1068 (quoting Rule 11.1, Ala. R. Crim.

P.). Instead, defense counsel merely alleged that, following the trial, he

had learned that Spencer was "being treated and receiving prescription

43 CR-2022-1213

medication for a serious mental illness," and the presentence

investigative report merely notes that Spencer has been

"diagnosed/treated … for bipolar disorder, depression/anxiety, and

PTSD" and that his medications at that time included "Remeron (for

treatment of mood conditions/bipolar issues/depression)." (Supp. C. 28.)

However, the mere fact that Spencer has been diagnosed with mental

illness, without more, was not a sufficient basis upon which to question

his mental competency to proceed with the sentencing hearing. Hodges,

926 So. 2d at 1069. See also State v. Glass, 375 So. 2d 151, 157 (Ala.

Crim. App. 2022) ("[T]he law is clear that [p]roof of the incompetency of

an accused to stand trial [or to be sentenced] involves more than simply

showing that the accused has mental problems or psychological

difficulties." (citation omitted)).

In short, there was no evidence (or even an allegation) indicating

that Spencer lacked the mental competency to proceed with the

sentencing hearing. We also note that the trial court was able to observe

Spencer's behavior during the sentencing hearing, where he made an

articulate statement in which he accepted responsibility for his actions.

(R. 590-92.) Thus, in the absence of any evidence indicating that Spencer

44 CR-2022-1213

lacked the mental competency to proceed with the sentencing hearing,

there was no reason for the trial court to order a mental examination or

to conduct any competency proceedings. Accordingly, even if this claim

had been preserved for appellate review, it does not entitle Spencer to

relief. See Harrison, 905 So. 2d at 862 (holding that the trial court did

not err by denying the defendant's request for a psychiatric evaluation

because the evidence indicated only that he had a mental disability and

that "he needed help understanding business and legal affairs," which

was "not sufficient to raise a bona fide doubt as to his competency"); and

Grider v. State, 766 So. 2d 189, 192 (Ala. Crim. App. 1999) (holding that

"the trial court did not err in determining that there was no reasonable

basis shown for questioning or examining the defendant's competency"

because he had "produced no evidence that a mental illness rendered him

legally incompetent to assist in his defense or to understand the nature

of the charges against him").

We acknowledge Spencer's allegation that the trial court "did not

allow [him] an opportunity to present testimony or 'reports of

psychologists or psychiatrists' to support a claim for a competency

hearing." (Spencer's brief, p. 37.) That allegation is simply not true. The

45 CR-2022-1213

record contains no indication whatsoever that the trial court prohibited

Spencer from presenting evidence regarding his mental competency. To

the contrary, at the October 6, 2022, hearing, the trial court noted that it

had continued the sentencing hearing to allow defense counsel an

opportunity to "make an inquiry into certain matters regarding the

mental status of Spencer," and the court asked counsel if he had "gotten

the report back," which clearly reflects the court's willingness to consider

evidence regarding Spencer's mental competency. However, defense

counsel informed the trial court that he did not have any such evidence

to present.

We also acknowledge Spencer's argument that the "factual issue of

whether reasonable grounds existed to doubt [his] competency to proceed

with sentencing … is one for the trial court in the first instance," and,

according to Spencer, the court did not make that factual finding in this

case. (Spencer's brief, p. 38.) However, at the October 6, 2022, hearing,

the State argued that defense counsel had failed even to allege that

Spencer lacked the mental competency to proceed with the sentencing

hearing, much less present evidence to that effect, and the trial court

noted that the State was "probably 100 percent correct," which can be

46 CR-2022-1213

interpreted as the factual finding that Spencer argues the court was

required to make. Furthermore, to the extent that the trial court did not

make that factual finding, that omission is the result of defense counsel's

failure to challenge Spencer's mental competency to proceed with the

sentencing hearing.

Conclusion

Spencer's convictions for first-degree robbery and pharmacy

robbery violate the Double Jeopardy Clause because, given the specific

facts of this case, the former is a lesser-included offense of the latter.

Thus, we remand the case with instructions for the trial court to vacate

Spencer's first-degree-robbery conviction and accompanying sentence.

Spencer has not presented this Court with any basis for reversing his

pharmacy-robbery conviction or his sentence for that conviction, so that

conviction and sentence are affirmed. The trial court shall take all

necessary steps to ensure that the return to remand is filed within 28

days of the date of this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

WITH INSTRUCTIONS.

47 CR-2022-1213

Windom, P.J., and Cole and Minor, JJ., concur. Kellum, J., concurs

in the result.