Broderick Darnell McCoy v. State of Alabama

Rel: February 10, 2023
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,
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________
CR-20-0821
_________________________
Broderick Darnell McCoy
v.
State of Alabama
Appeal from Russell Circuit Court
(CC-15-614.60)
On Return to Remand
McCOOL, Judge. 1
1This
case was originally assigned to another judge on this Court.
It was reassigned to Judge McCool on September 28, 2022.
CR-20-0821
In December 2018, Broderick Darnell McCoy was convicted of first-
degree assault, a violation of § 13A-6-20, Ala. Code 1975, and was
sentenced, as a habitual felony offender, to 99 years' imprisonment. On
March 6, 2020, this Court affirmed McCoy's conviction and sentence in
an unpublished memorandum, see McCoy v. State (No. CR-18-0559), 322
So. 3d 1074 (Ala. Crim. App. 2020) (table), and the certificate of judgment
issued on September 11, 2020, following the Alabama Supreme Court's
denial of certiorari review. In March 2021, McCoy filed a petition for
postconviction relief pursuant to Rule 32, Ala. R. Crim. P. The Russell
Circuit Court denied that petition, and McCoy has appealed the circuit
court's judgment.
Facts and Procedural History
While driving in Phenix City on February 16, 2013, McCoy struck
a pedestrian with his vehicle, causing significant injuries to the
pedestrian. At the scene of the accident, Sgt. Anthony Roberts of the
Phenix City Police Department spoke with McCoy, who initially claimed
that he did not need medical treatment. However, when Sgt. Roberts
found an open can of beer in McCoy's vehicle, McCoy asked to be taken
to a hospital for medical treatment. As McCoy was being loaded into an
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ambulance, Sgt. Roberts asked him to consent to a blood test, but McCoy
refused.
Once he was in the ambulance, McCoy provided the attending
paramedic with only "minor complaints" (Record on Direct Appeal
("RDA"), R. 21), and he admitted to the paramedic that he had asked to
be taken to a hospital because "he was afraid that he was going to go [to]
jail" (RDA, R. 36), not because he needed medical treatment. Although
McCoy admitted that he did not need or desire medical treatment, he
consented to the paramedic's request for blood samples to be used "for
medical treatment purposes." (RDA, R. 23.) However, when McCoy
arrived at the hospital, he became "disruptive" (RDA, R. 42) and,
according to the circuit court, refused medical treatment and left the
hospital. The vials of McCoy's blood that had been drawn in the
ambulance were then discarded into a locked hazardous-waste container
without any tests having been conducted on the blood.
A little more than two hours after McCoy left the hospital, Sgt.
Roberts went to the hospital and asked a nurse if McCoy's blood had been
drawn, and the nurse informed him that the vials containing McCoy's
blood had been discarded into the hazardous-waste container. The nurse
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then showed Sgt. Roberts where the hazardous-waste container was
located, and, without obtaining a warrant, Sgt. Roberts "broke open the
container" (RDA, R. 132), retrieved the vials of McCoy's blood, and
submitted the blood to the Department of Forensic Sciences, which tested
the blood to determine McCoy's blood-alcohol content ("BAC"). That test
revealed that McCoy's BAC was 0.29 percent, which is more than three
times the legal limit for the driver of a vehicle. See § 32-5A-191(a)(1),
Ala. Code 1975. McCoy was subsequently arrested and charged with
first-degree assault pursuant to § 13A-6-20(a)(5), which provides, in
pertinent part, that a person commits first-degree assault if, "[w]hile
driving under the influence of alcohol … in violation of Section 32-5A-191
…, he or she causes serious physical injury to the person of another with
a vehicle or vessel."
Before trial, McCoy's counsel moved to suppress the BAC test
results, arguing (1) that the State could not establish a proper chain of
custody for McCoy's blood; (2) that, because McCoy had not been arrested
before the BAC test was conducted, Alabama's implied-consent statute
did not operate to provide his consent to the BAC test, see § 32-5-192,
Ala. Code 1975; and (3) that the blood "was not contained in conformance
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with the required and accepted standards enumerated in [§ 32-5A-
194(a)(2), Ala. Code 1975]" (RDA, C. 55), which, at the time of McCoy's
offense, provided that "only a physician or a registered nurse (or other
qualified person) may withdraw blood for the purpose of determining the
alcoholic content therein." The trial court denied that motion, and McCoy
was subsequently convicted of first-degree assault.
In March 2021, McCoy filed the instant Rule 32 petition, in which
he argued that his counsel had rendered ineffective assistance by failing
to assert the Fourth Amendment to the United States Constitution as a
basis for suppressing the BAC test results. In support of that claim,
McCoy argued that the State's warrantless seizure and testing of his
blood violated the Fourth Amendment, which prohibits unreasonable
seizures and searches by the State, State v. Harris, 159 So. 3d 86, 90 (Ala.
Crim. App. 2014), and that the BAC test results were "without question
… the most compelling evidence against [him] at trial." (C. 12.) Thus,
according to McCoy, his counsel rendered "clearly deficient" assistance
by failing to raise a Fourth Amendment claim. (C. 15.)
The circuit court summarily dismissed McCoy's ineffective-
assistance-of-counsel claim based on its finding that the admissibility of
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the BAC test results had been "addressed at a pretrial suppression
hearing" and that, as a result, McCoy's counsel had "t[aken] the action
which she allegedly failed to take." (C. 22.) McCoy appealed, arguing
that, although his counsel had indeed moved to suppress the BAC test
results, she had not raised a Fourth Amendment claim in doing so and,
thus, contrary to the circuit court's finding, had not "t[aken] the action
which she allegedly failed to take." This Court agreed with McCoy,
noting that it had refused to consider his Fourth Amendment claim on
direct appeal because the claim had not been raised at trial and therefore
had not been preserved for appellate review. Thus, on December 7, 2021,
this Court remanded the case to the circuit court for that court to consider
McCoy's ineffective-assistance-of-counsel claim.
On February 24, 2022, the circuit court denied McCoy's ineffective-
assistance-of-counsel claim on the basis that it would have denied the
motion to suppress the BAC test results even if McCoy's counsel had
raised a Fourth Amendment claim. In support of that ruling, the circuit
court stated:
"This court finds that [McCoy] abandoned his blood samples
when he left the hospital after refusing treatment. Law
enforcement obtained the abandoned samples from a 'Sharps
container,' [i.e., the hazardous-waste container,] which was
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also referred to at a suppression hearing as a 'garbage can.'
The Fourth Amendment does not extend protections to
abandoned properties discarded into a 'garbage can' in a
public location."
(Record on Return to Remand, C. 17.) This Court then allowed the
parties to submit supplemental briefs on return to remand.
Standard of Review
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the United
States Supreme Court set forth a two-prong test that a defendant must
satisfy in order to prevail on an ineffective-assistance-of-counsel claim:
the defendant must show (1) that his "counsel's performance was
deficient" and (2) that "the deficient performance prejudiced the defense."
To satisfy the first prong of the Strickland test, the defendant "must show
that his counsel's representation fell below an objective standard of
reasonableness." Ex parte Lawley, 512 So. 2d 1370, 1372 (Ala. 1987).
Discussion
On appeal, McCoy argues that the circuit court erred by denying
his ineffective-assistance-of-counsel claim. In support of that argument,
McCoy continues to allege that the State's warrantless seizure and
testing of his blood violated the Fourth Amendment and that the BAC
test results were "without question … the most compelling evidence
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against [him] at trial." (McCoy's brief, p. 15.) Thus, according to McCoy,
his counsel rendered clearly ineffective assistance by failing to raise a
Fourth Amendment claim. Because McCoy's ineffective-assistance-of-
counsel claim is based on his counsel's failure to raise a specific claim at
trial, we begin our analysis by looking at the substance of the underlying
claim because, if that claim lacks merit, then McCoy's ineffective-
assistance-of-counsel claim fails. See Lee v. State, 44 So. 3d 1145, 1173
(Ala. Crim. App. 2009) ("Because the substantive claim underlying the
claim of ineffective assistance of counsel has no merit, counsel could not
be ineffective for failing to raise this issue.").
To prevail on a claim that the State's warrantless seizure and
search of an item violated the Fourth Amendment, the claimant must
show that he had "a subjective expectation of privacy" in the item and
that this expectation is one "that society accepts as objectively
reasonable." California v. Greenwood, 486 U.S. 35, 39 (1988). See also
Minnesota v. Carter, 525 U.S. 83, 88 (1998) (" '[C]apacity to claim the
protection of the Fourth Amendment depends ... upon whether the person
who claims the protection of the Amendment has a legitimate expectation
of privacy in the invaded place.' " (quoting Rakas v. Illinois, 439 U.S. 128,
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143 (1978))); Calhoun v. State, 932 So. 2d 923, 938 (Ala. Crim. App. 2005)
(" 'The Fourth Amendment protects only reasonable expectations of
privacy.' " (quoting Ex parte Hilley, 484 So. 2d 485, 489 (Ala. 1985))); and
United States v. Stokes, 829 F.3d 47, 51 (1st Cir. 2016) (holding that the
defendant's "inability to demonstrate a reasonable expectation of privacy
in the items searched and seized [was] fatal to his [Fourth Amendment]
claim"). Thus, the threshold legal question in McCoy's Fourth
Amendment claim is whether he had an objectively reasonable
expectation of privacy in the blood that the State seized from the hospital
and tested for BAC. 2 McCoy argues that he did and, in support of that
argument, cites Schmerber v. California, 384 U.S. 757 (1966), Skinner v.
Railway Labor Executives' Ass'n, 489 U.S. 602 (1989), State v. Funk, 177
Ohio App. 3d 814, 896 N.E.2d 203 (2008), and State v. Martinez, 570
S.W.3d 278 (Tex. Crim. App. 2019).
2Whether McCoy had a subjective expectation of privacy in the
blood is a question of fact; whether that subjective expectation is one that
society accepts as objectively reasonable is a question of law. United
States v. Douglas, 744 F.3d 1065, 1069 (8th Cir. 2014); United States v.
Vasquez-Padilla, 330 F. App'x 883, 887 (11th Cir. 2009) (not selected for
publication in the Federal Reporter).
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In Schmerber, the defendant was arrested for driving under the
influence of alcohol while he was receiving treatment at a hospital
following an automobile accident. At the direction of a law enforcement
officer who did not have a warrant, hospital personnel drew the
defendant's blood, which, when tested, indicated that he was intoxicated.
At trial, the defendant objected to the admission of the BAC test results,
arguing that he had not consented to the drawing of his blood and that,
as a result, the State's warrantless seizure and testing of the blood
constituted an unlawful search in violation of the Fourth Amendment.
The United States Supreme Court ultimately held that the State had not
violated the Fourth Amendment because exigent circumstances justified
the warrantless search. However, the Court reached that conclusion only
after noting that the State's "compelled intrusion[ ] into the human body
for blood to be analyzed for alcohol content," 384 U.S. at 768, is an act
that "plainly involves the broadly conceived reach of a search and seizure
under the Fourth Amendment." Id. at 767.
In Skinner, the United States Supreme Court considered whether
the Federal Railroad Administration had violated the Fourth
Amendment when it promulgated a regulation that required railroad
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companies to collect blood and urine samples from any employees who
were involved in certain train accidents. The Court ultimately upheld
the regulation under the "special needs" exception to the warrant
requirement, 489 U.S. at 619, but, in doing so, the Court reiterated that
"a 'compelled' … physical intrusion, penetrating beneath the skin,
infringes an expectation of privacy that society is prepared to recognize
as reasonable." Id. at 616.
In short, both Schmerber and Skinner acknowledged the
reasonable expectation of privacy a person has in his blood, but, at the
same time, both cases were concerned with the State's warrantless
"intrusions into the human body" to obtain the blood. Schmerber, 384
U.S. at 767 (emphasis added). In this case, there was no State or State-
ordered intrusion into McCoy's body because he voluntarily provided his
blood to medical personnel for the purpose of medical treatment.
Whether a person has a reasonable expectation of privacy in blood that
he voluntarily provides to another is a question not answered by either
Schmerber or Skinner, and we have not found any case from the United
States Supreme Court, the Alabama Supreme Court, or this Court that
answers the question. Funk and Martinez arguably answer that
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question in McCoy's favor, although we note that Martinez did not
involve the defendant's voluntary relinquishment of his blood, but those
cases from Ohio and Texas, respectively, are not binding authority in
Alabama. Simcala, Inc. v. American Coal Trade, Inc., 821 So. 2d 197, 202
(Ala. 2001). And, although some might find the answer unquestionably
to be 'yes,' at least two other courts have reached the opposite conclusion,
thus indicating that the issue has not been uniformly settled among other
jurisdictions. See People v. Dolan, 95 Misc. 2d 470, 474, 408 N.Y.S.2d
249, 252 (N.Y. Sup. Ct. 1978) (holding that the defendant had no
reasonable expectation of privacy in blood that he had voluntarily
provided to hospital personnel for the purpose of medical treatment and
noting that "[t]he precise question as to who owns the blood upon
extraction from an individual raises a novel point without apparent
judicial precedent" or "a definitive rule"); and State v. Bazinet, 170 N.H.
680, 184 A.3d 448 (2018) (holding that the defendant had no reasonable
expectation of privacy in blood that had been drawn by hospital personnel
for the purpose of medical treatment).
In other words, whether McCoy had an objectively reasonable
expectation of privacy in blood that he voluntarily provided to medical
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personnel for the purpose of medical treatment is a legal question of first
impression in Alabama. That fact is important because it must be
remembered that the issue before this Court is not simply whether the
State violated the Fourth Amendment. Instead, the issue is whether
McCoy's counsel rendered ineffective assistance by failing to assert the
Fourth Amendment as a basis for suppressing the BAC test results.
Thus, because Strickland requires that counsel's representation meet
only "an objective standard of reasonableness," Ex parte Lawley, 512 So.
2d at 1372, the dispositive question in this case is whether it was
objectively unreasonable for McCoy's counsel to fail to raise a Fourth
Amendment claim that hinges on a legal question of first impression.
We have not found an Alabama case that expressly answers this
question. However, this Court has acknowledged that a defendant's
counsel " 'cannot be deemed ineffective for failing to forecast changes in
the law,' " State v. Mitchell, [Ms. CR-18-0739, Feb. 11, 2022] ___ So. 3d
___, ___ (Ala. Crim. App. 2022) (quoting State v. Tarver, 629 So. 2d 14,
18-19 (Ala. Crim. App. 1993)), which suggests that the reasonableness of
counsel's failure to raise a particular claim must be evaluated in light of
the settled law that existed at the time the claim allegedly should have
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been raised. And other jurisdictions, both federal and state, have
expressly held that counsel cannot be deemed ineffective for failing to
raise a claim that hinges on a legal question of first impression or, stated
differently, for failing to raise a claim that would have necessarily
required counsel to advance novel arguments based on unsettled
questions of law. See Ragland v. United States, 756 F.3d 597, 601 (8th
Cir. 2014) ("Ragland's 'counsel's failure to anticipate a rule of law that
has yet to be articulated by the governing courts,' Fields [v. United
States], 201 F.3d [1025,] 1028 [(8th Cir. 2000)], and failure to raise a
'novel argument' based on admittedly unsettled legal questions 'does not
render his performance constitutionally ineffective,' Anderson v. United
States, 393 F.3d 749, 754 (8th Cir. 2005)."); United States v. Glover, 872
F.3d 625, 631 (D.C. Cir. 2017) ("[C]ounsel was not ineffective for failing
to raise a challenge of uncertain merit based on unsettled law."); United
States v. Morris, 917 F.3d 818, 823 (4th Cir. 2019) ("A lawyer does not
perform deficiently by failing to raise novel arguments that are
unsupported by then-existing precedent. See United States v. Mason,
774 F.3d 824, 830 (4th Cir. 2014) ('We have consistently made clear that
we do not penalize attorneys for failing to bring novel or long-shot
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contentions.'). Nor does counsel fall below Strickland's standard of
reasonableness by failing … to argue for an extension of precedent.");
United States v. Slape, 44 F.4th 356, 360 (5th Cir. 2022) ("Because no …
'directly controlling precedents' were available to Slape's trial counsel
here, he could not have flunked [the Strickland] test. As we've
consistently observed, the Sixth Amendment's reasonableness standard
does not require counsel to guess correctly on questions of first
impression, but merely to present 'directly controlling precedents' in
support of meritorious arguments their clients might beneficially
advance." (footnote and citation omitted)); Anderson v. United States,
633 F. App'x 520, 523 (11th Cir. 2015) (not selected for publication in the
Federal Reporter) ("An … attorney may render objectively unreasonable
performance by ignoring a well-defined legal principle, but an error in
judgment concerning an unsettled principle generally will not be
considered deficient performance."); Smith v. Singletary, 170 F.3d 1051,
1054 (11th Cir. 1999) (noting that "[i]gnorance of well-defined legal
principles is nearly inexcusable" but that " 'the rule that an attorney is
not liable for an error of judgment on an unsettled proposition of law is
universally recognized' " (quoting 2 Ronald E. Mallen & Jeffrey M. Smith,
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Legal Malpractice § 17.1, at 497)); State v. Breitzman, 378 Wis. 2d 431,
457, 904 N.W.2d 93, 105-06 (2017) ("[F]or trial counsel's performance to
have been deficient, Breitzman would need to demonstrate that counsel
failed to raise an issue of settled law."); Ex parte Chandler, 182 S.W.3d
350, 359 (Tex. Crim. App. 2005) ("[C]ounsel's performance will be
measured against the state of the law in effect during the time of trial
and we will not find counsel ineffective where the claimed error is based
upon unsettled law." (citation omitted)); Olsen v. State, 852 N.W.2d 372,
376-77 (N.D. 2014) (holding that counsel was not ineffective for failing to
raise an issue of first impression in that jurisdiction); and Ross v. State,
16 So. 3d 47, 60 (Miss. Ct. App. 2009) (holding that counsel could not be
deemed ineffective for failing to raise a claim that hinged on "clearly
unsettled" law).
We likewise hold that a defendant's counsel cannot be deemed
ineffective for failing to raise a novel claim that hinges on a legal question
of first impression. Although a particularly creative and adept attorney
might raise such a claim, the Strickland test "has nothing to do with what
the best lawyers would have done" or "even what most good lawyers
would have done." Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir.
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2001) (citation omitted). Instead, Strickland requires "only a
' "reasonably competent attorney," ' " which is to say that it "does not
guarantee perfect representation," Harrington v. Richter, 562 U.S. 86,
110 (2011) (quoting Strickland, 466 U.S. at 687), or even "ideal"
representation. Mickens v. Taylor, 240 F.3d 348, 363 (4th Cir. 2001). See
also United States v. Valas, 40 F.4th 253, 260 (5th Cir. 2022) ("[T]he
Sixth Amendment entitles a criminal defendant to reasonable, but not
perfect, representation of counsel." (citation omitted)). To hold that a
defendant's counsel renders ineffective assistance by failing to raise a
novel claim that hinges on a legal question of first impression would be
to require representation that goes beyond that which is reasonable and
to require representation that begins to approach perfection.
In this case, the Fourth Amendment claim that McCoy argues his
counsel should have raised might ultimately prove to have merit. To be
clear, we need not and do not express an opinion on that claim at this
time. For our purposes in this case, it is sufficient to note that the
threshold legal question upon which that claim hinges has not been
answered by any controlling authority. Thus, McCoy's counsel cannot be
deemed ineffective for failing to raise that Fourth Amendment claim, and
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his counsel did raise reasonable arguments in support of suppressing the
BAC test results. See United States v. Conner, 456 F. App'x 300, 307
(4th Cir. 2011) (noting, in rejecting an ineffective-assistance-of-counsel
claim alleging that counsel had failed to raise a specific argument with
respect to a certain issue, that "there were many good [arguments] that
[counsel] did make" with respect to that issue). Accordingly, the circuit
court did not err by denying McCoy's ineffective-assistance-of-counsel
claim. Although the circuit court denied that claim for a different reason,
we may affirm that court's ruling if it is correct for any reason. Taylor v.
State, 157 So. 3d 131, 146 (Ala. Crim. App. 2010).
Conclusion
Based upon the foregoing, the judgment of the circuit court is
affirmed.
AFFIRMED.
Windom, P.J., and Cole and Minor, JJ., concur. Kellum, J.,
dissents, with opinion.
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KELLUM, Judge, dissenting.
The fact that there is no binding precedent on a precise legal issue
does not, in my view, preclude a finding that counsel's performance was
deficient for not raising a claim involving that legal issue. I agree that
counsel " 'cannot be deemed ineffective for failing to forecast changes in
the law.' " State v. Mitchell, [Ms. CR-18-0739, February 11, 2022] ___ So.
3d ___, ___ (Ala. Crim. App. 2022) (quoting State v. Tarver, 629 So. 2d 14,
18-19 (Ala. Crim. App. 1993)). A lawyer cannot be faulted for not being
clairvoyant. However, I do not believe it necessarily follows that counsel
cannot be deemed ineffective for not raising an issue that, upon review of
the facts of the case and existing law, would lead a reasonable attorney
to believe the issue had merit. See, e.g., Reed v. State, 856 N.E.2d 1189(Ind. 2006), and State v. Westeen, 591 N.W.2d 203 (Iowa 1999) (both
holding that counsel was ineffective for not raising an issue of first
impression). A bright-line rule that counsel cannot be ineffective for not
raising an issue simply because neither the United States Supreme Court
nor an appellate court in the jurisdiction in which counsel is representing
his or her client has had the opportunity to address that precise issue is
ill-advised, runs counter to the reasonableness standard applicable to
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claims of ineffective assistance of counsel -- a standard that requires
consideration of all the circumstances, and "is not sufficiently protective
of a defendant's constitutional and statutory rights to effective counsel."
State v. Breitzman, 378 Wis.2d 431, 478, 904 N.W.2d 93, 116 (2017)
(Abrahamson, J., concurring).
That being said, because the Court today does not examine the
merits of the Fourth Amendment issue underlying Broderick Darnell
McCoy's claim of ineffective assistance of counsel in his Rule 32, Ala. R.
Crim. P., petition for postconviction relief, I find it unnecessary to write
in detail to that issue. Suffice it to say, after carefully reviewing the Rule
32 record and the record from McCoy's direct appeal, I believe that
McCoy's Fourth Amendment right to be free from unreasonable searches
and seizures was violated and that his counsel was ineffective for not
raising that issue in the pretrial motion to suppress. Had counsel done
so, the issue would have been preserved for this Court in McCoy's direct
appeal, 3 and I believe, or at least hope, that this Court would have
3McCoy raised the issue on direct appeal, but this Court held in our
unpublished memorandum that it had not been properly preserved for
review. McCoy v. State (No. CR-18-0559), 322 So. 3d 1074 (Ala. Crim.
App. 2020) (table).
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reached the conclusion that a person has an objectively reasonable
expectation of privacy in a blood sample provided for medical-treatment
purposes only and that a police officer cannot commit what is essentially
a theft of that person's blood sample from a locked biohazardous-waste
container at a hospital when that person expressly limits his consent to
providing the sample for medical-treatment purposes and has expressly
refused consent to law enforcement to collect a blood sample to test for
alcohol content. I believe that United States Supreme Court precedent
involving blood-alcohol testing -- including, but not limited to, Schmerber
v. California, 384 U.S. 757 (1966), Skinner v. Railway Labor Executives'
Ass'n, 489 U.S. 602 (1989), Ferguson v. City of Charleston, 532 U.S. 67,
78 (2001), Missouri v. McNeely, 569 U.S. 141 (2013), and Birchfield v.
North Carolina, 579 U.S. 438 (2016) -- invariably leads to this conclusion,
and I also find State v. Copeland, 680 S.W.2d 327 (Mo. Ct. App. 1984),
State v. Comeaux, 818 S.W.2d 46 (Tex. Crim. App. 1991), State v. Funk,
177 Ohio.App.3d 814 (2008), 896 N.E.2d 203, and State v. Martinez, 534
S.W.3d 97 (Tex. App. 2018), aff'd, 570 S.W.3d 278 (Tex. Crim. App. 2019),
to be highly persuasive on this issue.
Therefore, I respectfully dissent.
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