in re shonelle andre jackson v state of alabama cr04-0096 supreme court al - 2004.10.20 petition for...
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(Ala. Crim. App. 1993) (capital conviction and death sentence reversed in state
postconviction where petitioner presented evidence about a trial witness found in Taylor
Hardin medical records during Rule 32 proceedings).
C. Records from State Agencies Involved in the Investigationand Prosecution of Mr. Jackson
The State also objects to Mr. Jackson's request for records from Montgomery Fire
Department, Montgomery Violent Crimes Task Force, Alabama Department of Forensic
Sciences, and the Alabama Department of Pardons and Paroles, arguing that Mr. Jackson has
"not explained" what documents these agencies possess, that he has not alleged what the
records specifically reveal, or how these records relate to the remaining claims before the
court. This Court should reject the State's arguments.
Mr. Jackson has explained that these agencies each possess documents related to Mr.
Jackson's trial. Each of these agencies was involved in, and thus possesses information
about, the State's investigation of Shonelle Jackson, Eric Williams, Antonio Barnes and
Christopher Rudolph in the murder of LeFraich Moore. In his petition, Mr. Jackson has
alleged that the State has suppressed several items, including information obtained from
Patrick Stinson, Roderick Crawford and Latrice Walker, as well as the results of testing and
examination of the evidence. Upon information and belief, the files of these agencies will
likely contain the suppressed information, or lead to other discoverable information.
At this point, Mr. Jackson cannot, and indeed is not required. to articulate precisely
what is in the records in order to get discovery. As the Land Court recognized, "[i]f
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defendants were required to make a positive showing that sealed documents in fact contained
exculpatory material, Brady violations would come to the attention of appellate courts only
by the merest happenstance of confidential material falling into a defendant's hands." Land,
755 So. 2d at 854 (citing United States v. Streit, 962 F.2d 894, 900 (9"' Cir. 1992)). Without
access to the information contained in these files, Mr. Jackson will be unable to prove his
allegations.
D. Physical Evidence Introduced into the Record at Trial
Mr. Jackson has also alleged that his trial counsel were ineffective for failing to
challenge the State's ballistics evidence and obtain a firearm and projectile expert to assist
counsel in order to establish that the bullets that caused Mr. Moore's death could have been
fired by either the 9 mm or the .357 gun carried by the co-defendants, and thus that Mr.
Jackson was not responsible for Mr. Moore's death. Amended Petition, at 11-12, 24. This
discovery request is opposed by the State solely based on its argument that the claim is not
cognizable: "Because Jackson's claim is due to be dismissed, he has not and cannot show
"good cause" for access to the bullet and shell casing." State's Response, at 10.
As articulated in Petitioner's Response to the State's Motions to Dismiss, the State's
argument that this claim should be dismissed due to lack of a material issue of law or fact
because counsel elicited such testimony on cross-examination should be rejected as an
argument about the merits of the claim. Id. at 10-11, Mr. Jackson has alleged facts, which,
if proven true, would entitle him to relief. That the State believes he may not ultimately
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succeed on the merits is not relevant to whether has sufficiently pled the claim and shown
"good cause" for discovery. Without access to the bullet and shell casing - in order that it
may be evaluated and independently tested - Mr. Jackson will be unable to prove that trial
counsel were ineffective in this regard.
E. Court Records
Finally, Mr. Jackson has requested records from the Montgomery County Juvenile,
Family, District, Circuit and Municipal courts. In response, the State contends that Mr.
Jackson is not entitled to these documents because he has "not explained" what documents
these agencies possess, that he has not alleged what the records specifically reveal, or how
these records relate to the remaining claims before the court. State's Response, at 15.
However, Mr. Jackson has explained both what documents these agencies possess and how
these documents are related to claims before the Court.
In his petition, Mr. Jackson alleged that his trial counsel failed to file a timely
Youthful Offender Application and present evidence in support of this motion to the Court.
Amended Petition, at 15-16. Additionally, counsel failed to challenge the underlying
convictions which formed the basis for the aggravating circumstance against Mr. Jackson
that "the capital offense was committed by a person under sentence of imprisonment." (C.
174.) In order to prove these claims, Mr. Jackson needs access to all of his court files,
specifically including his juvenile records (which are not public records). These records are
in the possession of the Montgomery County Juvenile Court system. Thus. Mr. Jackson
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needs a court order directing the Montgomery County courts to allow him access to his files.
It is not true, as the State contends, that Mr. Jackson must show (even if he could)
specifically what these records reveal in order to show "good cause" for the records. Land,
775 So. 2d at 854. Without access to records from the Montgomery County Juvenile, Family,
Municipal, District and Circuit courts, Mr. Jackson will be unable to prove that trial counsel
were ineffective in this regard.
Discovery requests of prosecution files are routinely granted in death penalty Rule 32
cases across the state. See. e.g.. Land, 775 So.2d at 850 (trial court ordered discovery of
district attorney files); Hooks v. State, 822 So. 2d 476, 82 (Ala. Crim. App. 2000) (upholding
circuit court order granting Rule 32 petitioner discovery of prosecution's files). In a case
involving the Montgomery County District Attorney's office - an office with a history of
suppressing evidence in death penalty cases - discovery of such records is even more critical.
In this case, Mr. Jackson has alleged "good cause" for discovery of the prosecution files, and
therefore his motion for discovery should be granted in its entirety.
III. INSTITUTIONAL RECORDS
In his Motion for Discovery of Institutional Files, Mr. Jackson requested numerous
records that are necessary to prove that his trial counsel were ineffective at both the
guilt/innocence and penalty phases of the trial. These requested documents include not only
Shonelle Jackson's records, but records on his father, Louis Taylor, and his mother, Marilyn
Jackson as well. The State agrees that Mr. Jackson has established "good cause" for a
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number of these records, but.objects to discovery of the following records: 1) records from
the Alabama Board of Pardons and Paroles pertaining to Shonelle Jackson; 2) any and all
records pertaining to Louis Taylor, including records from the Department of Corrections,
the Montgomery County Detention Facility, the Montgomery County Jail, Alabama Board
of Pardons and Paroles, the Montgomery Police Department and the Montgomery County
Sheriff's Department; and 3) mental health records pertaining to Marilyn Jackson. Because
Mr. Jackson has shown "good cause" for these records, the State's motion should be denied.
A. Records of the Alabama Board of Pardons and Paroles
The State claims that Mr. Jackson is not entitled to records of the Alabama Board of
Pardons and Paroles because 1) he has not "explained" what documents this agency
possesses, 2) he has not alleged "what the records specifically reveal," or 3) how these
records are relevant to the claims in the petition. State ofAlabaina's Response to Jackson's
Motion for Discovery or Institutional Records, Files, and Information Necessary to a Fair
Rule 32 Evidentiary Hearing, at 10. This Court should reject the State's arguments. First,
upon information and belief, the Alabama Board of Pardons and Paroles has files on Mr.
Jackson. That this is true is evidenced by the fact that the Alabama Board of Pardons and
Paroles prepared the pre-sentence report in this case. (S.R. 1.) Second, the State's argument
that Mr. Jackson has not alleged "what the records specifically reveal," was explicitly
rejected by the Alabama Supreme Court in Land: "Until the documents are actually
produced, it is impossible to determine whether they contain evidence of mitigating
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circumstances." Land, 755 So. 2d at 854. Moreover, Mr. Jackson has asserted in his petition
that counsel were ineffective for failing to investigate and present mitigating evidence of Mr.
Jackson's "life of instability,""diminished mental capacity," and evidence that "he has always
been a hard worker who has done well in structured environments such as correctional
facilities."' Amended Petition, at 42, 44. Records of the Alabama Board of Pardons and
Paroles would "corroborate[] the testimony ... of family members and friends," regarding
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the mitigation in this case. Amended Petition, at 37. These records are not only relevant, but
essential to Mr. Jackson's ability to prove that his counsel were ineffective in this regard.
The State agrees that this portion of Mr. Jackson's ineffectiveness claim is sufficiently
pled. State ofAlabama's Answer to Jackson 's Amended Petition for Relieffrom Conviction
and Death Sentence, at 53. Mr. Jackson has shown "good cause" for these records because
he has alleged facts which, if proven true, would entitle him to relief. See Land, 775 So. 2d
at 855 (holding that petitioner was entitled to discovery of records of Board of Pardons and
Paroles to prove that counsel was ineffective at penalty phase of capital trial). Without
access to the records of the Alabama Board of Pardons and Paroles, Mr. Jackson will be
unable to prove his claim.
'Such evidence is undoubtedly mitigating. See Wiggins v. Smith, 123 S. Ct. 2527,2542 (2003) (ineffective assistance of counsel where counsel failed to investigate and presentevidence of client's "troubled history"); Williams v. Taylor, 529 U.S. 362, 395-96 (2000)(counsel ineffective for failing to uncover and present evidence of client's "nightmarishchildhood," borderline mental retardation, and good conduct in prison); Skipper v. SouthCarolina, 476 U.S. 1 (1986) (capital defendant must be permitted to introduce evidence ofgood behavior while incarcerated during penalty phase of trial).
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B. Louis Taylor's Records
The State argues that Mr . Jackson is not entitled to discovery of any of Louis Taylor's
records because Mr. Jackson "has other available means with which to prove his allegations,
concerning his father ," and thus such records are not necessary for Mr . Jackson to prove his
claims . State 's Response , at 7. There is no legal basis for the State's opposition to this
discovery request.
First , it is irrelevant whether the State can suggest a different method by which Mr.
Jackson can prove his claims . Because the State is not conceding the facts related to this part
of Mr . Jackson ' s infectiveness claim,' it is inappropriate for the State to dictate how it
believes Mr . Jackson should ultimately prove the truth of his allegations. More importantly,
the State ' s argument is' unsupported by law ; there is no rule or case that suggests that the
Court can deny a Rule 32 petitioner's discovery request simply because a lawyer for the State
thinks there are other ways to prove the claim.
In addition , the State's position about how Mr . Jackson should prove his claim is
based on a myopic view of how to investigate and prove mitigation . Mr. Jackson's father's
records are necessary not only to prove the claims in the petition , but also to discover
additional mitigation evidence that has yet to have been uncovered. See ABA Guidelines for
the A ointment and Performance of Defense Counsel in Death Penalty Cases, Commentary
to § 10.7 n.215 (Revised Ed. Feb. 2003) ( "Records may document events that neither the
'See State 's Answer, at 54 (`This claim is denied.").
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client nor family members remember."); see also Williams v. Taylor, 362 U.S. 362, 395 n. 19
(2000) (relying on social worker's descriptions of the Williams home that could not have
been provided by the client, who was too young, and the adult family members, who were
too intoxicated, to recall the scene).
Mr. Jackson's request is not unduly burdensome. Mr. Jackson has alleged that his
father has had interaction with all of the identified agencies. As the Alabama Supreme Court
recognized in Land: if these facilities have no documents that relate to Land's claims, they
can simply say so. Merely determining whether such documents exist would not unduly
burden the State." Land, 775 So. 2d at 855.
Finally, by suggesting that Mr. Jackson is entitled to prove the facts related to his
father (albeit by "other available means"), the State is conceding the relevancy of the
information Mr. Jackson is seeking, and thus the fact that Mr. Jackson has shown "good
cause" for these records. The State's argument to the contrary should be rejected.
C. Marilyn Jackson 's Mental Health Records
The State argues that Mr. Jackson is not entitled to discovery of his mother's mental
health records, maintained by the Alabama Department of Mental Health and Mental
Retardation and/or the Department of Rehabilitation because the request is overly broad, not
relevant to his claim of mental retardation, and can be provided by Ms. Jackson. State's
Response, at 9. This Court should reject the State's arguments.
First, Mr. Jackson has not made an "overly broad" request. Mr. Jackson has requested
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any mental health records pertaining to his mother in the possession of a state agency, such
as the Alabama Department of Mental Health and Mental Retardation, or a state psychologist
or psychiatrist. These records are relevant to his claim that he is mentally retarded and
therefore exempt from execution, see Atkins v. Vir inia, 526 U.S. 304 (2002). Amended
Petition, at 67-69, and his claims that trial counsel failed to present evidence about Mr.
Jackson's "diminished mental capacity," as well as evidence that "Ms. Jackson's own mental
impairments prevented her from providing appropriate and meaningful guidance to
Shonelle." Amended Petition at 42-43. Such files are routinely obtained in the course of a
mitigation investigation; consequently, without such files it will be "practically impossible"
for Mr. Jackson to show that his lawyers were ineffective for failing to obtain these records
and present the evidence contained therein. Land, 755 So. 2d at 855.
Moreover, the State's argument that Ms. Jackson's mental health records are "not
relevant to Jackson's claim of mental retardation," because "Jackson either meets the
standards for mental retardation or he doesn't," State's Response, at 9, bespeaks an utter lack
of understanding about what mental retardation is, or how a diagnosis of mental retardation
is reached. See, e.g., Mental Retardation: Definition. Classification, and Systems of
Supports, American Association on Mental Retardation, 10`h ed. 2002, at 123-41 (family
biomedical history is critical to etiology of mental retardation in particular individual).
Finally, to the extent that Mr. Jackson is able to obtain some of these records without
obtaining a court order, that will be done. However, upon information and belief, Ms.
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Jackson received training through a program run by the State Department of Mental Health
and/or the Department of Rehabilitation, both of which require a court order to obtain
records. Obviously, if these agencies do not have any mental health records on Ms. Jackson,
"they can simply say so. Merely determining whether such documents exist does not unduly
burden the State." Land, 775 So. 2d at 855.
Mr. Jackson has shown "good cause" for access to these records because he has
alleged facts, which, if prove true, entitle him to relief. See Land, 775 So. 2d at 852.
Without access to Marilyn Jackson's mental health records, Mr. Jackson will be unable to
prove both his Atkins claim, as well as his ineffectiveness claim.
FOR THESE REASONS, as well as the reasons articulated in his previously filed
motions, Mr. Jackson requests that this Court grant him the discovery to which he is entitled
and afford him the opportunity to prove his facially meritorious claims. If the Court denies
Mr. Jackson's discovery requests, he will be prevented from developing and proving the
claims in his petition.
Respectfully Submitted,
((- 1,ji^ L^BryanjA. StevensonAngela L . SetzerEqual Justice Initiative of Alabama122 Commerce StreetMontgomery , AL 36104(334) 269-1803
1Dated : June 2 5, 2004 Counsel for Mr. Jackson
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CERTIFICATE OF SERVICE
I certify that on June 25, 2004, I served a copy of the attached motion by first class
mail, postage pre-paid, and properly addressed to:
Jeremy McIntireOffice of the Attorney GeneralAlabama State House11 South Union StreetMontgomery, AL 36130
Ang^la L. Setzer
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IN THE FIFTEENTH JUDICIAL CIRCUITIN AND FOR MONTGOMERY COUNTY
MONTGOMERY , ALABAMA
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SHONELLE JACKSON,
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PLAINTIFF,
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6vs.
STATE OF ALABAMA,7
DEFENDANT.8
CRIMINAL ACTION
CASE NO. CV-97-2300
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COURT REPORTER'S TRANSCRIPT OF PROCEEDINGSOCTOBER 13, 2004
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MONTGOMERY COUNTY COURTHOUSE
COURTROOM 3-B
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BEFORE: THE HONORABLE TRACY S. McCOOEYCIRCUIT JUDGE
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APPEARANCES
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ON BEHALF OF THE STATE:
JEREMY McINTIRE,.ESQUIREASSISTANT ATTORNEY GENERALMONTGOMERY, ALABAMA
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ON BEHALF OF MR. JACKSON:BRYAN A. STEVENSON, ESQUIREANGELA L. SETZER, ESQUIRE
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' Vicki H. ClarkOfficial Court Reporter
(334) 832-1365
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PROCEEDINGS
THE COURT: Mr. Jackson, how are you?
MR. JACKSON: Okay.
THE COURT: Okay. This is Shonelle Andre
Jackson versus State of Alabama, CC-97-2300. If
I could get the attorneys -- before we get
started, we have Mr. Jackson in the courtroom,
but if I could get the lawyers to stand up and
state their name and who they represent for the
Record.
MR. McINTIRE: Jeremy McIntire with the
Attorney General's office, Your Honor.
THE COURT: Thank you.
MS. SETZER: Angie Setzer on behalf of
Shonelle Jackson.
MR. STEVENSON: Bryan Stevenson on behalf of
Shonelle Jackson.
THE COURT: Okay. All right. I know we've
got a couple of things we've got to do. The
first thing, I think that we had an amended
petition on a Rule 32 that had been filed and
then responses to that. So I guess that's what
we need to take up first. And I know there were
all kinds of things with it about discovery and
whether we were going to have a hearing,
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et cetera, et cetera.
So I guess let me -- Jeremy, do you want
to start for us?
MR. McINTIRE: Your Honor, in response to
Mr. Jackson' s amended petition, the State filed
three motions to dismiss, a motion to dismiss to
procedurally barred claims, a motion to dismiss
insufficient claims filed and a motion to
dismiss claims under 32.7(d). And the State
would be happy to address any of the individual
arguments within those motions. If the Court
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wants to ask about -12
THE COURT: Okay.
MR. McINTIRE: I think the motions
themselves are pretty clear ---
THE COURT: Right. And I've read --
MR. McINTIRE: -- as to why those motions
should be barred or dismissed.
THE COURT: -- all of those that you've
filed. I guess probably the easiest way is,
Bryan -- and I've read y'all's response. I
assume that's what we need to take up first.
I know there's also a motion to have a
mental evaluation done. There's discovery
requests. There's a bunch of stuff. So I don't
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know where we need to start. But I guess we need
to start with that rule -- Amended Rule 32
Petition.
MS. SETZER: Your Honor, we have discovery
motions pending as well which --
THE COURT: And there's a lot of discovery
motions that y'all had that you had filed. And I
think y'all's position was, hey, we're not even
ready to argue and hear this because we still
have a lot of discovery that we have to get done
is what I got from g'all's motion.
MS. SETZER : Right.
THE COURT: Is that correct?
MS. SETZER : We filed motions for discovery
on records and files that are necessary for
Mr. Jackson to prove the claims in his petition.
So -
THE COURT: Yes. I mean , I think there were
all kinds of things, like records y'all need from
corrections and different mental health records,
et cetera.
MS. SETZER : Correct, correct.
THE COURT: So let's take up first --
MR. McINTIRE : Your Honor, if I might.
THE COURT: Yes.
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MR. McINTIRE: I think that the motions for
discovery will rest largely on what claims this
Court ultimately dismisses or decides from the
hearing --
THE COURT: Right.
MR. McINTIRE: I think it would be best to
handle the motions -- the State's motions to
dismiss first so that then we can understand what
claims are going to be before this Court for any
evidentiary hearing and then move to discovery
motions.
THE COURT: And I know ---- I mean, the only
hearing this Court's done -- I mean, we had the
hearing about the statement that was given to the
officer, you know, that the Supreme Court or the
Court of Criminal Appeals remanded back for us to
have a hearing; which we've done that. That's
the only hearing that I've actually had on this
case regarding Mr. Jackson. And so, anyway --
all right. Let's start there because, like I
said, I am -- you know, I'm not the trial judge
that tried this case, so I'm not familiar with
this case except for the transcript. But I
wasn't the actual trial judge.
So, anyway, why don't we start there?
Vicki H. Clark
Official Court Reporter(334) 832-1365
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Jeremy, let's start with the first one that y'all
have and let you make your argument, and then
I'll let y'all respond.
MR. McINTIRE: The first motion to dismiss
is the State's motion to dismiss procedurally
barred claims. As this Court is aware, under
Rule 32.2(a), certain claims that could have been
raised or were raised at trial or could have been
raised or were raised on appeal are barred from
the proceedings. The State has an extensive list
of claims in the amended petition that are
subject to the usual bars of Rule 32.2(a), and we
would simply submit that these claims fit under
that category; that they either could have been
raised on appeal or were raised on appeal or they
could have been raised at trial or they were
raised at trial and, therefore, are not properly
before this Court and are due to be procedurally
barred.
THE COURT: Okay. And, Bryan, what's
y'all's problem with the ones that Jeremy is
saying need to go because they could have been
raised and weren't?
MS. SETZER: Well, Your Honor, first, I
think we'd like to -- I'd just like to mention
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that we believe that before that Your Honor
dismisses any of these claims or decides whether
to hear them, we would need to obtain discovery
and fully develop the evidence in that -- in the
case before Your Honor decides to dismiss any of
the claims.
With regards to Mr. Mclntire's position
that these claims are procedurally barred,
specifically -- well, many of the claims were
raised on direct appeal, and we believe that this
Court should not dismiss them. Although they
were raised on direct appeal, it's necessary for
this Court to look at those claims when assessing
trial counsel's effectiveness and whether
Mr. Jackson's rights were violated in this case.
Two claims, specifically, the juror misconduct
claim, which is grounds two on page two of the
motion, and the Brady claim, they are contending
that both of those claims should be procedurally
barred because they could have been but were not
raised at trial and on appeal. Mr. Jackson
objects to that.
With regard to the juror misconduct
claim, Alabama case law is clear, Rule -- that
juror misconduct claims are cognizable in Rule 32
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proceedings, in this particular proceeding.
There was no reason -- no way that trial counsel
or co-counsel could have raised it at trial or on
appeal and, therefore, it is appropriate for this
Court to hear evidence on Mr. Jackson's claims
that jurors engaged in misconduct.
With regard to the Brady claim or the
Giglio claim, what we are alleging is that the
State, the prosecutor's office, suppressed
evidence. Mr. Jackson's trial counsel requested
the evidence. The State said we've given you
everything we have. And what we are now saying
is, well, they didn't give us everything. That
couldn't have been raised at trial. It couldn't
have been raised on direct appeal, and
Mr. Jackson should be allowed the opportunity to
present the evidence to show that, in fact, the
DA did suppress .certain pieces of evidence and
that would have -- that undermines the outcome of
his trial.
THE COURT: Now, let me ask y'all this, too,
because I know this case, it was tried, what, in
'97? Is that when --
MR. McINTIRE: Yes, Your Honor.
THE COURT: -- they tried it? And, I mean,
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it's kind of an interesting, I guess, little
twist on it in light of what is -- I mean, now we
know that you have to do extensive mitigation,
hire experts. You know, that's no longer an
option. I mean, you know, you're basically
you know, you're going to be incompetent as a
lawyer if you don't do that on a capital case.
And we know that. That's required now, and then,
I mean, you've got to do extensive mitigation,
have your mitigation experts. You know, they
need to be on board from the get-go.
But, obviously, that wasn't the law when
this case came about, but the -- the interesting
twist on it is the jury, you know, they're the
ones who recommended 12 and 0 life without
parole. So, I mean, with only 25 minutes of, I
think, mitigation argument, I mean, obviously,
that convinced them, hey, life without parole.
But the judge, who has a right to do it,
overruled that and gave him the death penalty.
So I'm sitting here thinking last night and I'm
going, well, you know, whether they did extensive
mitigation, you know, investigation, had the
experts, did all the things they should have, it
didn't matter in this case because, I mean, the
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jury, they said life without parole. I mean, it
would have been different, I think, obviously if
they had recommended the death penalty and then
the judge had upheld it. I don't know. I mean,
I'm just asking y'all.
This case is kind of -- it's got a
little bit of a different twist. And I assume -
I.don't know. I mean, Bryan, is Wiggins, does it
-- does it go back to old cases? I assume it
does.
MR. STEVENSON: Well, Your Honor --
MR. McINTIRE : Your Honor , may I --
MR. STEVENSON : -- just on that point, it
actually does -- the Wiggins case was actually
tried about the same time this case was tried.
THE COURT: It's retroactive on this stuff;
right?
MR. STEVENSON : It is. And, of course
and I'll let Ms. Setzer speak to this, but our
point, of course , is that it was the presentation
in front of the judge that made all of the
difference in this case . If you don't present
that mitigating evidence in front of that judge,
then, obviously , you're not effective.
THE COURT: Right . You're still thinking it
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did matter.
MR. STEVENSON : Oh, absolutely. If he
hadn't -
THE COURT: That the judge needed the
benefit -
MR. STEVENSON : Absolutely.
THE COURT: -- of hearing all of that as
well.
MR. STEVENSON : Absolutely, Your Honor.
THE COURT: What do you guys say about that?
Because that really --- out of everything about
this, the thing that's just been sticking with me
is that. We know if it was tried right now,
obviously, it would be tried totally different.
MR. McINTIRE : Well, every case can be tried
totally different.
THE COURT: Well, no -- but in light of
Wiggins, I mean, life has changed as far as
capital cases. We know that. It's no longer -
you know, we just did a CLE on it in this
courthouse about why you've got to hire a
mitigation expert from the jump. Right when you
get that case, you need to get them on board;
which speaking of that -- and that -- I'm just
going off the Record.
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(Off-the-Record discussion.)
THE COURT: But, you know, I guess what I'm
saying is the Court -- for the Court to sit here
and just ignore Wiggins, to just close my eyes
and say, well, you know, 25 minutes with no
mitigation, no experts, nothing, that's okay,
well, I know that isn't okay because that's not
what the law says now.
MR. McINTIRE: Your Honor, first of all, I
would respectfully disagree with your
interpretation of Wiggins. I don't think Wiggins
has any clear mandate that you have to hire a
mitigation expert, that you have to hire an
investigator. I think Wiggins stands for the
proposition that you have to do a reasonable
investigation, a competent investigation, and
that --
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THE COURT: But then what is competent?18
MR. McINTIRE: -- and that investigation is19
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THE COURT: No. I'm just saying I agree
with you, but you're not competent unless you
hire the mitigation experts, because lawyers,
they don't have the training, the expertise, to
be able to do that. I mean, that's insane to
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think that we do. We don't.
MR. McINTIRE : Well, I strongly disagree
with that , too, Your Honor . I don't think that's
the case.
THE COURT: I do.
MR. McINTIRE: And furthermore -
THE COURT: I mean, I could be wrong, but I
think that is the case based on --- I think
Justice O'Connor was pretty clear in her opinion.
I mean, I think it tells lawyers you better have
the necessary experts. We're talking about
someone's life, and you better have them, and you
better jump through all the hoops or it's not
correct.
MR. McINTIRE: I'm going to respectfully
disagree with Your Honor, and I think that
focusing on the Wiggins is really on the actions
that the lawyer takes. When you look at the
lawyer's -- from the lawyer's perspective, under
the circumstances of the case, the circumstances
of his client, and actually look at what did he
do to prepare for the mitigation phase and was it
reasonable in light of the total circumstances -
THE COURT: But do you know what? Nothing
was done in this case.
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MR. McINTIRE: Your Honor, he got -
THE COURT: 25 minutes. Come on.
MR. McINTIRE: Your Honor, he got a 12/0
verdict, so he obviously did something right in
this case. And, furthermore, the State has not
__ the State has not -- the State has already
conceded the fact that there should be a hearing
on their claims that counsel was ineffective
during the penalty and sentencing phases and also
as to Jackson's claim that he's mentally
retarded. The State has already conceded that
there should be a hearing on those claims. So I
really don't think that's the focus of today's
hearing. I think the focus -
THE COURT: And I'm not -- and I'm not
saying the lawyers weren't effective by only
doing 25 minutes, what they did. I mean, they
didn't have the benefit of what we now have. So
I'm not being critical of them, but I'm just
looking at it from the standpoint of the case law
that we have now and what the United States
Supreme Court is saying has to be done in capital
cases. And, I mean, maybe I am wrong, but I
think that if you read the Wiggins -- I think if
you do not get experts from the get-go on board,
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I think you' ve got real problems . I really do.
I mean, I could be completely off base, but I
I just think that that's what they're telling us,
you know.
MR. McINTIRE : Well, I would respectfully
disagree with Your Honor on that point.
Obviously, we'll get to that at a later date when
we both make our arguments as to those claims.
Just going back briefly to the
procedurally barred claims , I'd just like to
point out to the Court that under 32.3, Rule11
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32.3 -
THE COURT: Hold on for just a second,
Jeremy. Let me stop you there. Angela is
saying, hey, we've got to be able to do discovery
first, Judge, before we can even address these.
This is premature at this point. You can't
really rule on them and we can't address them
until we get proper discovery. Why is she wrong
on that?
MR. McINTIRE : She's wrong , Your Honor,
because Rule 32.2 is clear that procedural bars
apply to all cases, even death penalty cases.
Rule 32.3 states that once the State has pled
procedurally barred, the burden shifts back to
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the other side to disprove that bar -- to prove
the existence of that bar. They haven't done
that in this case. You don't need discovery to
do that. Either it could have been raised or it
couldn't have been raised. It's pretty clear
when you look at these claims that -- it's
obvious just from reading the petition of the
claims that they could've been raised or they
couldn't have been raised and that they're barred
because of that.
Also, in ex parte State -- in reference
to Hooks v. State, the Alabama Court of Criminal
Appeals held that there's no discovery -- there
is no right to discovery on a procedurally barred
claim, which is what they're attempting to do is
get discovery on a procedurally barred claim by
saying, well, we need discovery to see if they're
procedurally barred. Well, the Court of Criminal
Appeals has said, no, that is not right; there is
no discovery on procedurally barred claims. You
can look at the claims themselves and decide
whether or not they're procedurally barred.
The State has pled these bars. The
burden is now on Mr. Jackson to prove that they
do not exist.
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THE COURT: Okay.
MS. SETZER: Your Honor, with regard to
that, I think Mr. McIntire just stated that it's
our burden now to disprove the procedural bars.
Well, in order to do that, we need to obtain
discovery to ascertain whether or not these
claims could have been raised on direct appeal or
could have been raised at trial. We can't do
that without discovery, and so our position
would be that we do need discovery in order to
disprove --
THE COURT: You're saying at this point I
don't even know, Judge, if we could have or
couldn't have because I don't have sufficient
information to be able to even make that, you
know, statement. I mean, I've got to have some
more information is what y'all are saying.
MS. SETZER: Right.
THE COURT: Well, what about that, Jeremy?
They're saying, hey, we don't even know.
MR. McINTIRE : Judge -
THE COURT: I mean, I know you're saying
they should know and they know based on the trial
and what they've got, that there isn't anything
new they need; they can tell is what you guys are
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saying.
MR. McINTIRE: I think it's clear from the
claims themselves, Your Honor. Just as an
example, claim six in the petition is that the
trial court committed reversible error for
failing to instruct the jury on the lesser
included offense of robbery. Now, that was
raised on appeal, on his direct appeal. Now,
what discovery do they need to determine whether
or not that claim is procedurally barred?
THE COURT: No. I agree with you. I think
some of them probably are procedurally barred,
but I bet some of them, they might need some more
information. I mean, I agree with you. I think
there's some of them that -- like that, yes,
there isn't anything else you need on that. But
I bet there's some that they are going to need
some more. I don't know, I mean, but I bet there
is.
MS. SETZER : Your Honor, I think -- I mean,
I agree with you. I mean, I think that we would
say, you know, we are likely --- we may concede
that some of them, in fact, are procedurally
barred.
THE COURT: Right.
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MS. SETZER : But at this point our position
would be that we do need discovery in order to
ascertain that and that it would be premature for
this Court to dismiss these claims before
discovery has taken place and before we're able
to get all of that information.
THE COURT: And what exact discovery do you
guys want?
MS. SETZER : Well, we have --
THE COURT: And I know you listed a number
of things.
MS. SETZER : Right. We have -- there are
two motions currently pending before this Court,
discovery with relation to prosecution files and
then discovery with relation to institutional
files, Department of Correction files, and the
files that you mentioned earlier. The State has
agreed that we are entitled to some of these
discovery items, in particular, the District
Attorney's file with regard to Mr. Jackson, some
of the institutional files that relate to
Mr. Jackson.
The things that they are objecting to
and that we contend we need, in particular, for
example, they are saying that we do not -- that
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we're not entitled to the DA files with regard to
the prosecution of the co-defendants in this
case. We have alleged that both the State
suppressed evidence of deals or agreements that
were entered into with the co-defendants and also
that trial counsel was ineffective during the
guilt phase, during the guilt and innocence phase
of the trial by failing to investigate, by
failing to challenge the State's presentation of
its case. We need the District Attorney's files
with regard to the co-defendants, with regard to
prior prosecutions of both the co-defendants and
Mr. Jackson in order to prove our claims, in
order to show that, in fact, the District
Attorney suppressed evidence or that trial
counsel was ineffective, that they performed
deficiently, and, you know, this is what would
have happened had --
THE COURT: So, Jeremy, y'all are saying we
don't have a problem with turning over the DA's
files on this case with Mr. Jackson, but we do
have a problem with giving them the DA's files on
the co-defendants?
MR. McINTIRE: That's correct, Your Honor,
because the claims are procedurally barred. The
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Court of Criminal Appeals has stated that there
is no right to discovery of procedurally barred
claims.
THE COURT: But what about their argument
that they think that they can prove maybe that
there was some bargains that they should have
investigated, but they won't know unless they see
the file? I don't know. I'm just asking. That
they need them because they don't know these
things yet.
MR. McINTIRE: First, Your Honor, those
claims are procedurally barred. Also, those
Brady claims are also due to be dismissed as
insufficiently pled. I think we're getting into
kind of a circular argument here that's not
really going anywhere, and I think you just have
to -- the burden is on them under Rule 32.3 to
prove that these claims are not procedurally
barred. They have to do something in their
amended petition that states why we couldn't have
discovered this, why counsel couldn't have
discovered this, when did this all happen.
There's none of that in their petition, Your
Honor. They don't plead any facts that tend to
say these claims could not have been raised at
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trial because of this; these claims could not
have been raised on appeal because of this.
There's nothing in their petition that states any
of that; therefore, these claims are procedurally
barred.
THE COURT: What about that? Do you guys
have specifics?
MS. SETZER: Well, with regard to the
ineffective assistance of counsel claims that I
mentioned earlier, those are not procedurally
barred. You know, the State has conceded that
IAC -- of course, that some of the allegations
are cognizable, but we contend that all of the
IAC allegations, ineffective assistance, are
cognizable.
With regard to the Brady claim or
suppression of evidence, we have alleged that
trial counsel made motions. They asked for the
stuff from the prosecutor, and the prosecutor
said we've given you everything that we have or
we will give you everything that we have.
Without the evidence of this suppression, without
the suppressed evidence, we will never be able to
show that, in fact, the prosecutor withheld the
-- I mean, we'll never be able to prove our
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claim. It's not a procedurally barred claim. It
is cognizable under Rule 32.
A case out of this county, Montgomery
County, Martin v. State, recently, the Court of
Criminal Appeals granted relief in the case where
the DA suppressed evidence and this evidence was
discovered after several rounds of discovery.
Okay. So this is an example of these claims
being cognizable under Rule 32 and that we do
need discovery in order to prove our claim.
THE COURT: Well, Jeremy, what's wrong with
giving them the discovery?
MR. McINTIRE: Your Honor, with all due
respect, they're on a fishing expedition. They
don't plead any facts, any specific facts, that
there was a deal. They're -
THE COURT: Well --
MR. McINTIRE: They're basically on a
fishing expedition trying to get all of this
discovery information to see if there was. Rule
32 is a means for vindicating actual claims.
It's not a means for investigating --
THE COURT: Well, I -
MR. McINTIRE : -- possible claims. And what
they're wanting to do -
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THE COURT: I hear what you're saying, but,
I mean, we're talking about, you know, someone's
life. Okay. So, I mean, the stakes are as high
as they can get. You know, we're not talking
about someone who is just going to prison for a
number of years or whatever. I mean, we're -
you know, the stakes are as high as they can get.
What is wrong with letting them have the
discovery? If they are on a fishing expedition,
then they're not going to be able to prove it
anyway. Okay. I mean, they can't create things
that aren't there. But if, in fact, they're
right -- I mean, I don't know if they are or not.
But if they are right, doesn't that need to come
to light?
MR. McINTIRE: Your Honor, that -- Rule 32
is not the opportunity for them to try to retry
the whole case and go on a large fishing
expedition and try to raise every conceivable
thing --
THE COURT: Well, I don't think they're
retrying the case . I think they're just -
MR. McINTIRE: If you read their petition,
they are, Your Honor.
THE COURT: -- saying they need their
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information to be able to argue these motions
adequately to the Court, which is what they need
to do.
MR. McINTIRE : I would also point out, Your
Honor, that in a recent case by the Court of
Criminal Appeals, Wood v. State, 2004 Westlaw
1909291, the Court of Criminal Appeals again
reiterated that a_Brady claim raising a Rule 32
petition is procedurally barred under Rules
32.(a)(3) and (a)(5) where the petitioner fails
to instruct a claim was based on newly discovered
evidence. In their petition they do not say it
was based on newly discovered evidence. They
offer no basis to support an inference or -- that
a deal existed and they offered no facts as to
what that deal was, when it came about, anything.
MS. SETZER : Mr. McIntire ' s is relating to
newly discovered evidence which is a specific
provision of Rule 32.3(e) and constitutional
violations which is another specific provision of
Rule 32, Rule 32.2(a). What we have alleged is
not because of newly discovered evidence
necessarily but that this is a constitutional
violation. The whole idea of a Brady claim, of a
suppression of evidence claim, is that Mr.
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Jackson could not have -- I mean, the State's
suppressed it. They kept it from him. That's
part of the requirement for getting relief under
a Brady claim. He could not -- his trial counsel
could not have done anything at trial. What
we're saying is we believe based on our
investigation that the DA entered into deals or
agreements with the co-defendants in exchange for
their testimony. We now need an opportunity to
prove that. Rule 32 is precisely the arena for
these types of claims. It's an opportunity for
us to bring in new evidence and show this Court
how Mr. Jackson's constitutional rights were
violated.
MR. McINTIRE: Your Honor, they're just
assuming that the State violated Brady, that the
State would just willy nilly break the law and do
all of this. There's no facts in their petition
to support any of their allegations. All they do
is make a bare allegation and a conclusion
without any supporting facts whatsoever. They
state that in their investigation they found this
or this that would support that. Well, what is
it? They don't put it in their petition, raise
those facts in their petition to support their
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allegations. Instead, they just make a bare
allegation that they believe, that they believe,
not even that there was, that there may have been
a deal. Well, why? They don't state that in
their petition. They don't offer any facts or
any evidence to support their allegation.
MS. SETZER: Your Honor, Mr. Jackson is an
eighteen-year-old -- at the time of the crime was
an eighteen-year-old young man. There were four
individuals who were charged with capital murder
of this crime. He is the only person that's on
death row. All three of the codefendants are now
serving lesser sentences, 21 years, 27 years,
life. We believe based on our investigation that
there were deals entered into for exchange for
their testimony. It's sufficiently pled. It's a
cognizable claim before this Court, and we would
ask that this Court grant discovery so we can
prove it.
MR. McINTIRE: Your Honor, I would again
just urge you to look at the petition itself and
look at the claim itself. They --
THE COURT: You know, I think they get
discovery. I really do. Like I said, you know,
y'all -- you know, mandamus me, take me up.
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Maybe the Court will agree with y'all and say no.
But I just -- I mean, I think they are entitled
to it. I think that by not letting them do it,
there would be a problem . I mean, I think
they're entitled to it.
And, also, I'll put it this way.
There's no harm in letting the discovery be done,
but there is big harm in not letting it be done.
That's for sure. And maybe it shows nothing and
maybe there is nothing, and that's fine. I mean,
I don't know. But I think that they're entitled
to it. I mean, I read their amended petition.
They're making some arguments about some things
that they think -- I think they're entitled to
it. They get it. I'm going to give it to them.
Well, with that, I mean, y'all are going
to have to get the discovery first before we can
argue any of this; right?
MS. SETZER: Yes, ma'am.
THE COURT: How long is that going to take?
And, I mean, Jeremy, like I said, mandamus me. I
mean, maybe the Court will agree with you and
say, hey, Judge McCooey is wrong, and then we'll
come back and go from there. If they say I'm
right, then we'll just proceed onward.
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MS. SETZER: Your Honor, I don't know how
long. A couple of months? I don't know exactly
what the time -
THE COURT: Well, that's fine. Well, let's
do this. Get me an order -- y'all draw it and
make sure Jeremy looks at it -- saying that I'm
letting y'all have the discovery. And then,
Jeremy, y'all mandamus me. We'll see what the
Courts say. If they agree with y'all, then, like
I said, we'll come back and just go from there.
If they don't, then we'll set this at a later
date when we've done the discovery and we can
proceed forward.
MR. McINTIRE: Your Honor, just two quick
points.
THE COURT: Yes.
MR. McINTIRE: For the Record, could you
explicitly state what discovery requests you are
granting? And, also, we would also state that we
do not wish to see the order just so the Court of
Criminal Appeals doesn't think that in some way
we conceded to it.
THE COURT: Oh, okay. Well, that's fine. I
mean, I just let both sides look at it.
I am granting all of the discovery that
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they are requesting in both -- and I had y'all's
two motions that y'all had filed.
MS. SETZER : They're the motion for
discovery of prosecution files and motion for
discovery of institutional files.
THE COURT: Right. And I'm granting it on
both of those, Jeremy. Is that clear?
MR. McINTIRE : So you're granting all
discovery in both motions for discovery?
THE COURT: Yes. Those two motions that
were before this Court, I am granting discovery
in both of those.
MR. McINTIRE : Your Honor, when will this
order take place? In terms of there was a case
Jason Sharp, ex parte Sharp , that the Supreme
Court said you have seven days or whatever the
time limit is to appeal from the Court's order,
I'd like to know if the Court is going to make it
effective today or -
THE COURT: Can y'all get it to me today?
MS. SETZER: Sure.
THE COURT: I'll sign it today.
MR. McINTIRE : I would just request to make
sure we get a copy as soon as possible.
THE COURT: Yes. I will sign it today, let
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y'all tile it downstairs , so y'all can go from
today.
MS. SETZER : I'll get it to you.
THE COURT: Okay. Anything else?
MS. SETZER : I think that's it.
THE COURT: All right. Mr. Jackson, we'll
be in touch. And, Jeremy, y'all do what you've
got to do.
MR. McINTIRE : Yes, Your Honor.
THE COURT: And we'll just wait to hear from
the Courts, and we'll proceed forward.
Okay. Thank you very much. Y'all have
a nice day.
Vicki H. ClarkOfficial Court Reporter
(334) 832-1365
32
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CERTIFICATE
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STATE OF ALABAMA3
COUNTY OF MONTGOMERY4
I, VICKI H. CLARK, OFFICIAL COURT REPORTER IN AND
FOR THE FIFTEENTH JUDICIAL CIRCUIT, MONTGOMERY
COUNTY, ALABAMA, DO HEREBY CERTIFY THAT I
REPORTED IN MACHINE SHORTHAND THE FOREGOING
HEARING AS STATED IN THE CAPTION HEREOF; THAT MY
SHORTHAND NOTES WERE LATER TRANSCRIBED BY ME OR
UNDER MY SUPERVISION, AND THAT THE FOREGOING
PAGES NUMBERED 2 THROUGH 31, BOTH INCLUSIVE,
REPRESENT A FULL, TRUE AND CORRECT TRANSCRIPT OF
SAID PROCEEDINGS; THAT I AM NEITHER KIN NOR OF
COUNSEL TO ANY PARTIES IN THIS PROCEEDING NOR IN
ANY WAY INTERESTED IN THE RESULTS THEREOF.
6
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DATED THIS THE 15TH DAY OF OCTOBER, 2004.19
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22CKI H. CLARK
OFFICIAL COURT REPORTER
24
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Vicki H. ClarkOfficial Court Reporter
(334) 832-1365
1IN THE FIFTEENTH JUDICIAL CIRCUIT COURT,
MONTGOMERY COUNTY, ALABAMA
111
1111111I
1L1I
SHONELLE ANDRE JACKSON,
Petitioner,*
V.
STATE OF ALABAMA,
Respondent.
* Case No. 97-2300.60* p31 -14'?
^h' ^ c* <
COURT ORDER
On October 13, 2004 , the parties appeared before this Court for argument on several
pending motions . After hearing arguments from counsel for Petitioner Shonelle Jackson and
counsel for the State of Alabama and upon review and consideration of the motions and the
responsive pleadings , as well as the Petitioner 's amended petition , the State ' s answer, the
trial transcript and other pleadings , this Court hereby ORDERS that the Petitioner 's Motion
for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32
Evidentiary Hearing and Petitioner ' s Motion for Discovery of Institutional Records, Files,
and Information Necessary to a Fair Rule 32 Evntiary Hearing are hereby GRANTED.
(e w. A A ( , )vfh , A t r r 1 G^liewl- CI
( ^IILe, ) 'V-("v1 L
APO -1 5NO.
IN THE SUPREME COURT OF ALABAMA
EX PARTE SHONELLE ANDRE JACKSON
(In re : Ex parte State of Alabama
(In re : Shonelle Andre Jackson,
Petitioner
V.
State of Alabama,Respondent))
Alabama Court of CriminalAppeals No. CR-04-0096
Montgomery County CircuitCourt No. CC-97 2300.60
FILED
APR -1 2005
CLERKALA COURT CRIMINAL APPEALS
PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OF
CRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY,CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT
Bryan A. StevensonAngela L. SetzerEqual Justice .. Initiative ofAlabama122 Commerce Street
Montgomery , AL 36104
Ph: (334 ) 269-1803
Fax: (334 ) 269-1806
Counsel for Shonelle Jackson
April 1, 2005
NO.
IN THE SUPREME COURT OF ALABAMA
EX PARTE SHONELLE ANDRE JACKSON
(In re : Ex parts State of Alabama
(In re : Shonelle Andre Jackson,
Petitioner
V.
State of Alabama,Respondent))
Alabama Court of Criminal
Appeals No . CR-04-0096
Montgomery County CircuitCourt No. CC-97 2300.60
PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OF
CRIMINAL APPEALS AND THE HONORABLE TRACY S . MCCOOEY,
CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT
Bryan A. StevensonAngola L. Setzer
Equal Justice.- Initiative of
Alabama
122 Commerce StreetMontgomery, AL 36104
Ph: (334) 269-1803
Fax: (334 ) 269-1806
Counsel for Shonelle Jackson
April 1, 2005
TABLE OF CONTENTS
TABLE OF AUTHORITIES . .
PETITION FOR WRIT OF MANDAMUS . . . . . . . . . . .
STATEMENT OF THE CASE AND FACTS NECESSARY TO AN
UNDERSTANDING OF THE ISSUES PRESENTED . . . .
v
1
I
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . 5
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . 5
STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . 6
SUMMARY OF REASONS WHY WRIT SHOULD ISSUE . . . . .
STATEMENT WHY WRIT SHOULD ISSUE . . . . . . . . . .
6
7
I. THE ALABAMA COURT OF CRIMINAL APPEALS ERRED IN
GRANTING THE STATE ' S PETITION FOR A WRIT OF MANDAMUS
BECAUSE NO EXCEPTIONAL CIRCUMSTANCES ARE PRESENT IN
THIS CASE . . . . . . . . . . . . . . . . . . . . . 7
A. The Alabama Court of Criminal Appeals Erred
in Granting the Writ of Mandamus Because
the State had an Adequate Remedy by Appeal
. . . . . . . . . . . . . . . . . . . . . . . 8
B. The Alabama Court of Criminal Appeals Erred
in Granting the Writ of Mandamus Because
the Trial Court Did not Abuse its
Discretion as Mr. Jackson has Shown "Good
Cause" for His Discovery Requests . . . . . . . 12
1. Prosecution Files . . . . . . . . 15
a. Files Relating to the
Co-Defendants and Prior
Prosecutions . . . . . . . . . . . . . 16
b. Jail Visitor Sign-In
' Sheets . . . . . . . . . . . . . . 19
i
Y
c. Documents Relating toState Witnesses . . . . . . . . . . . 20
d. Physical Evidence
Introduced into the
Record at Trial . . . . . . . . . . . 22
e. Juror Questionnaires
and Materials . . . . . . . . . . . . 24
2. Records of Louis Taylor . . . . . . . . . . 25
3. Records of the Department of
Human Resources and the Alabama
Board of Pardons and Paroles . . . . . . . 29
II. CONCLUSION . . . . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . 31
APPENDIX OF EXHIBITS
TAB 1 Opinion of the Alabama Court of Criminal
Appeals dated March 18, 2005
TAB 2 Order of Honorable Judge Tracy S. McCooey datedMarch 23, 2005
TAB 3 State of Alabama's Petition for Writ of
Mandamus to Honorable Tracy S. McCooey, Circuit
Judge, Fifteenth Judicial Circuit
Exhibit A Shonelle Jackson's Amended Rule
32 Petition
Exhibit B State's Answer to Shonelle
Jackson's Amended Rule 32
Petition
Exhibit C State 's Motion to Dismiss
Procedurally Barred Claims
Exhibit D State's Motion to Dismiss
ii
Insufficiently Plead Claims
Exhibit E State's Motion to Dismiss ClaimsPursuant to Rule 32.7 (d)
Exhibit F Mr. Jackson's Motion for
Discovery of Institutional
Records, Files, and Information
Necessary to a Fair Rule 32
Evidentiary Hearing
Exhibit G Mr. Jackson's Motion for
Discovery of Prosecution Files,
Records and Information Necessary
to a Fair Rule 32 Evidentiary
Hearing
Exhibit H State's Response to Mr. Jackson's
Motion for Discovery of
Institutional Records, Files, and
Information Necessary to a Fair
Rule 32 Evidentiary Hearing
Exhibit I State's Response to Mr. Jackson's
Motion for Discovery of
Prosecution Files, Records, and
Information Necessary to a Fair
Rule 32 Evidentiary Hearing
Exhibit J Mr. Jackson's Response to the
State's Opposition to his
Discovery Reque$-ts
Exhibit K Transcript of the Hearing Held on
October 13, 2004 in the
Montgomery County Circuit Court
on the Parties' Motions
Exhibit L Circuit Court's Order of October
13, 2004
TAB 4 Shonelle Jackson's Answer in opposition to the
State of Alabama's Petition for Writ of
iii
Mandamus to Honorable Tracy S. McCooey, CircuitJudge, Fifteenth Judicial Circuit
Exhibit A Petitioner's Response to the
State's Motions to Dismiss
TAB 5 Brief of Amicus Curiae of the Alabama
Department to Human Resources
TAB 6 Petitioner's Objection to this Court's Signing
of the State's Proposed Orders Without
Modification
TAB 7 State's Response to Jackson's Objection to thisCourt's Signing of the State's Proposed Orderswithout Modification
iv
TABLE OF AUTHORITIES
FEDERAL CASES
Banks v. Dretke, 540 U.S. 668 . . . . . . . . . . . 17
Batson v. Kentucky, 476 U.S. 79 . . . . . . . . . . 24
Brady v. Maryland, 373 U.S. 83 . . . . . . . . . . 16
Davis v. Alaska, 415 U.S. 308 . . . . . . . . . . . 21
Giglio v. United States, 405 U.S. 150 . . . . . . . 16
J.E.B. v. Alabama, 511 U.S. 127 . . . . . . . . . . 24
Lewis v. Dretke, 355 F.3d 364 . . . . . . . . . . . 27
Napue v. Illinois, 360 U.S. 264 . . . . . . . . . . 17
Wiggins v. Smith, 539 U.S. 510 . . . . . . . . . . 26
Williams v. Taylor, 529 U.S. 362 . . . . . . . . . 27
STATE CASES
Ex parte Compass Bank, 686 So.2d 1135 . . . . . . . . 9
Ex parte Crawford Broadcasting Company, No. 1031094,2004 WL 2914 924 . . . . . . . . . . . . . . . . . . 7
DeBruce v. State, 890 So.2d 1068
Ex parte Dillard Department Stores, Inc.,
879 So . 2d 1134 . . . . . . . . . . . . . . . . . . . 9
Ex parte Dobyne, 805 So.2d 763 .
Ex parte ],pumas , 778 So . 2d 798 . . . . . . . . . . . 10
V
Ex part O'Leary, 438 So.2d 1372 . . . . . . . . . . 23
Hamilton v. State, 677 So.2d 1254 . . . . . . . 15, 17
Hardy v. State, 804 So.2d 247 . . . . . . . . . . . 20
Harris v. State, No. CR-01-1748, 2004 WL 2418073 . 26
Ex parte Hutcherson, 847 So.2d 386 . . . . . 5, 6, 10
Jefferson v. State, 645 So.2d 313 . . . . . . . . . 15
Ex parte Land, 775 So. 2d 847
. . . . . . . . . . . . 6, 13, 14, 18, 19, 22, 24, 27
Ex parte Lynn, 477 So.2d 1385 . . . . . . . . . . . 21
Ex parte Mack, No. CR-02-0431, 2003 WL 1950008 . . 13
Martin v. State, 839 So.2d 665 . . . . . . . . . . 15
McGahee v. State, 885 So.2d 191 . . . . . . . . . . 11
McMillian v. State, 616 So.2d 933 . . . . . . . . 20
Ex parte McNair, 653 So.2d 353 . . . . . . . . . . 10
Ex parte Norfolk Southern Rye Co., No. 1030476, 2004 WL
1950297 . . . . . . . . . . . . . . . . . . . . . . 9
Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 . . .
• . • . . . . . . . . . . . . . . ... . . 6, 7, 8, 9
Ex parte Pierce , 851 So.2d 606 . . . . . . . . . . 11
Ex parte State (In re: Shonelle Andre Jacksonv. State of Alabama), No. CR-04-0096, 2005 WL 628485. . . . . . 4, 8, 12, 15, 16, 17, 19, 21, 22, 25, 28
Sims v. State, 587 So.2d 1271 . . . . . . . . . . . 24
Ex parte Slaton , 680 So . 2d 909 . . . . . . . . . . 13
vi
PETITION FOR WRIT OF MANDAMUS
Petitioner Shonelle Jackson respectfully petitions this
Court, pursuant to Rule 21(e) of the Alabama Rules of
Appellate Procedure, to issue a writ of mandamus to the
Alabama Court of Criminal Appeals directing it to vacate its
opinion of March 18, 2005, ordering the Honorable Judge Tracy
McCooey of the Fifteenth Judicial Circuit to set aside her
orders granting discovery in this case. Petitioner also
requests this Court to direct Judge McCooey to vacate the
order she entered following the Court of Criminal Appeals'
opinion.'
STATEMENT OF THE CASE AND FACTS NECESSARY TO AN UNDERSTANDING
OF THE ISSUE PRESENTED
In 1998, Shonelle Jackson, who was eighteen years old at
the time of the crime, was convicted of capital murder and
sentenced to death, despite a unanimous 12-0 jury verdict of
life without the possibility of parole. Mr. Jackson is
currently before the Montgomery County Circuit Court seeking
1 On March 23, 2005, Judge McCooey complied with the Court
of Criminal Appeals' opinion (that is the subject of this
mandamus petition) by entering an order vacating her prior
rulings granting Mr. Jackson's discovery motions. See Appendix
to Petition for Writ of Mandamus to the Alabama Court of
Criminal Appeals and Circuit Judge Tracy S. McCooey of the
Fifteenth Judicial Circuit, Tab 2.
1
I
relief from his conviction and sentence pursuant to Rule 32 of
the Alabama Rules of Criminal Procedure.
Mr. Jackson filed a timely Rule 32 petition on July 30,
2003. The State filed an answer on October 28, 2003, and on
February 26, 2004, moved for dismissal of some of the claims
in Mr. Jackson's petition based on allegations of procedural
bar, or failure to satisfy pleading requirements. On March 1,
2004, Judge McCooey signed the State's proposed orders
dismissing a number of Mr. Jackson's claims.
Mr. Jackson subsequently filed an objection to the trial
court's order and a motion for reconsideration. See Tab 6.2
Mr. Jackson additionally filed an Amended Rule 32 petition,
and motions in which he moved the circuit court for discovery
of prosecution files and institutional records necessary to
prove these claims. See Motion for Discovery of Institutional
Records (Tab 3, Exh. F); Motion for Discovery of Prosecution
Files (Tab. 3, Exh. G).'
In response, the State argued that "Jackson has no
2 Exhibits contained in the appendix to this petition arereferenced as "Tab "
3 Exhibits filed with the State's petition for writ of
mandamus in the Alabama Court of Criminal Appeals will be
referenced as "Tab 3, Exh.
2
standing to complain about the orders regarding his original
petition, as they have no affect on his first amended
petition, which has superseded the original petition." (Tab
7 , at 5 . )
With respect to Mr. Jackson's amended petition, the State
asserted that most of the claims should be dismissed because
they were either insufficiently specific, procedurally barred,
or did not state a claim upon which relief could be granted.
(See Tab 3, Exh. C, D, E) While the State acknowledged that
Mr. Jackson was entitled to some of the discovery items he
requested, the State objected to other items, arguing that Mr.
Jackson had failed to show "good cause" for his requests, in
part because it believed the circuit court should have
dismissed the claims on which they were based. (See Tab 3,
Exh. H, I).
On October 13, 2004, Judge McCooey held a hearing on the
State's motions to dismiss, as well as Mr. Jackson's discovery
requests. After hearing arguments from both parties and
reviewing the pleadings, the trial court granted Mr. Jackson's
discovery motions, (Tab 3, Exh. L), and reserved a ruling on
the State's motions to dismiss. (Tab 3, Exh. K, at 28-29).
On October 20, 2004, the State filed a petition for writ
3
of mandamus asking the Alabama Court of Criminal Appeals to
reverse the trial court's discovery order because, it claimed,
the trial court erred in finding that "good cause" for Mr.
Jackson's discovery requests existed. (Tab 3, at 4). Mr.
Jackson submitted a response in which he argued that mandamus
was not appropriate or necessary, and that, in any event, he
had established "good cause" for his discovery requests. (Tab
4) .
On March 18 , 2005 , the Alabama Court of Criminal granted
the State ' s petition for writ of mandamus , and directed Judge
McCooey to vacate her rulings on Mr. Jackson ' s two discovery
motions . Ex arte State I : Sh nel Andr e Jackson v.
State of Alabbamal, No. CR- 04-0096, 2005 WL 628485, at *12
(Ala. Crim. App. Mar. 18, 2005) (attached as Tab 1). The
court did not address the extraordinary nature of mandamus, or
its limited application to only the most exceptional
circumstances, but simply concluded that "the State has met
its burden of establishing the prerequisites for the issuance
of this writ of mandamus," gx-Parte State, 2005 WL 628485, at
*4, 11, and that Mr. Jackson had failed to show good cause for
the requested discovery.
This Court should issue a writ of mandamus to the Alabama
4
Court of Criminal Appeals directing it to vacate its order
because mandamus review of the trial court's discovery order
was inappropriate. This is not an "exceptional" issue
warranting an extraordinary remedy and Mr. Jackson has shown
"good cause" for his discovery requests.
STANDARD OF REVIEW
Mandamus is an extraordinary remedy that will be issued
when: 1) there is a clear legal right in the petitioner to the
order sought; 2) an imperative duty upon the respondent to
perform, accompanied by a refusal to do so; 3) the lack of
another adequate remedy; and 4) properly invoked jurisdiction
of the court. Ex parte Hutcherson, 847 So. 2d 386, 387-88
(Ala. 2002).
STATEMENT OF JURISDICTION
This Court has jurisdiction of this petition pursuant to
Rule 21(e) of the Alabama Rules of Appellate Procedure, "which
provides that a decision by a court of appeal on an original
petition for a writ of mandamus may be reviewed de novo by
this Court." Ex parte Hutcherson, 847 So. 2d 386, 387 (Ala.
2002). The Alabama Court of Criminal Appeals issued its
opinion granting the State's petition for a writ of mandamus
on March 18, 2005. Mr. Jackson's petition to this Court is
5
being timely filed within fourteen days of that order. ALA.
R. APP. P. 21 (e) (2) .
STATEMENT OF ISSUES
1. Should the Alabama Court of Criminal Appeals have
granted the State of Alabama's petition for writ of
mandamus where the trial court granted the Rule 32
petitioner's discovery motions and withheld a ruling
on the State's motion to dismiss and where the State
did not have a clear legal right to the order it
sought and has an adequate remedy by ordinary
appeal?
2. Should the Alabama Court of Criminal Appeals havegranted the State of Alabama's petition for writ ofmandamus reversing the trial court's postconvictiondiscovery order in a capital case where thepetitioner demonstrated "good cause" for therequested items?
SUMMARY OF THE REASONS WHY THE WRIT SHOULD ISSUE
The Montgomery County Circuit Court properly granted
Shonelle Jackson's motions for discovery of items necessary to
prove the facially valid claims in his Rule 32 petition. The
court also properly reserved ruling on the State's motions to
dismiss. In addition to being proper, these rulings are
typical in Rule 32 litigation and do not present an
"exceptional" case warranting mandamus review. As such, this
Court should order the Alabama Court of Criminal Appeals to
vacate its order granting the State's petition for a writ of
mandamus.
6
STATEMENT WHY WRIT SHOULD ISSUE
I. THE ALABAMA COURT OF CRIMINAL APPEALS ERRED IN
GRANTING THE STATE ' S PETITION FOR A WRIT OF MANDAMUS
BECAUSE NO EXCEPTIONAL CIRCUMSTANCES ARE PRESENT IN
THIS CASE
The "judicial system cannot afford immediate mandamus
review of every discovery order." Ex Qarte Ocwen Fed. Bank,
FSB, 872 So. 2d 810, 813 (Ala. 2003). Rather, mandamus is an
"extraordinary" remedy that is limited to cases where 1) there
is a clear legal right in the petitioner to the order sought;
2) an imperative duty upon the respondent to perform,
accompanied by a refusal to do so; 3) the lack of another
adequate remedy; and 4) properly invoked jurisdiction of the
court.' Ex parte Hutcherson, 847 So. 2d 386, 387-88 (Ala.
2002). As Justice Moore noted in his concurring opinion in
Ocwen:
It is not the business of this Court to look over
the shoulder of a trial judge or to question every
decision a judge makes just because a party is
dissatisfied.
Ocwen , 872 So. 2d at 817 (Moore , C.J., concurring in the
4 This Court has recognized that mandamus is appropriate
for reviewing discovery orders. Ex_p rte Land, 775 So. 2d 847
(Ala. 2000). However, a writ of mandamus will only issue in
exceptional circumstances "which amount to a judicial
usurpation of power." Ex pate Sullivan, 779 So. 2d 1157,
1160 (Ala. 200,0) .
7
result) .
In this case, the Alabama Court of Criminal Appeals erred
in granting the State's petition for a writ of mandamus
because: 1) the State had an adequate remedy by ordinary
appeal, and thus could not show that it would suffer the kind
of harm necessary for mandamus review; and 2) the trial court
did not abuse its discretion in granting Mr. Jackson's
discovery requests, and thus the State could not demonstrate
a clear legal right to the order sought.
A. The Al bama Court of Criminal A ea Erred
in Granting the Writ of Mandamus Beca
The State Had an Adequate Remedy by A al
Generally, a regular appeal of a discovery order is an
adequate remedy. Ocwen, 872 So. 2d at 813. Review by appeal
is inadequate in only a few "exceptional" situations, such as
when a privilege is disregarded, or when a discovery order is
unduly burdensome. See Ex parte Crawford Broadcasting
Company, No. 1031094, 2004 WL 2914924, at 42 (Ala. Dec. 17,
2004) .
Mr. Jackson made a limited request for a discrete number
of records on a discrete number of individuals: his parents'
penal and mental health records, DHR records concerning Mr.
Jackson, the District Attorney's files relating to the death
8
of the victim and the prosecution of this case (including the
files of the three co-defendants who testified against Mr.
Jackson at trial, all of whom received lesser sentences) and
records on the State witnesses who testified against him at
trial.'
While the State generally asserted below that Mr.
Jackson's requests imposed an "unduly burdensome " procedure,
(Tab 3 , Exh. H , at 5; Exh. I, at 4), the State's mere
allegations of inconvenience and expense are insufficient to
form a basis for finding that the discovery request is
oppressive or burdensome . Ocwen, 872 So. 2d at 815.
Nevertheless, the Alabama Court of Criminal Appeals
concluded -- without explanation or evidentiary support in the
record - that " the consequences of this request are enormous."
Ex parte State , 2005 WL 628485 , at *5 n . 5. In reality, the
actual number of records produced would be fairly limited, and
certainly does not come close to the type ' of request that
Alabama courts have found to be unduly burdensome in other
s Additionally , Mr. Jackson requested information which
is already a part of the trial record : jury questionnaires
and the bullet and shell casing introduced into evidence
against him at trial.
9
4
cases.6 Sep wen, 872 So. 2d at 815-16 (trial court's order
requiring party to produce list of every prior consumer-
protection or financing--agency complaint and every lawsuit
filed during prior five years not unduly burdensome).
Nor did the State ever meet its burden of asserting a
claim of privilege as a basis for arguing that Judge McCooey
should deny or otherwise limit the discovery.' (See Tab 3
Exh. K). While the DHR asserted a privilege for the first
- 3time in an amicus brief in the Alabama Court-of Crirnina
6 The limited nature of the discovery order in this case
pales in comparison to orders this Court has found to be
unduly burdensome . Ex arte L)il lard Dep't Sto res , Inc., 879
So. 2d 1134, 1137 (Ala. 2003) (in civil suit for false
imprisonment and intentional infliction of emotional distress,
plaintiffs' request for discovery of all actions filed against
Dillard; all claims that did not result in actions; all
complaints and charges made by customers about mistreatment;
all complaints about employee mistreatment and all records
regarding employees who had been accused of injuring, accusing
or detaining customers or other employees in more than 100
department stores nationwide found to be oppressive or
burdensome , as many were "irrelevant to this case" ); Ex paste
Compass Bank , 686 So . 2d 1135 (Ala. 1996 ) ( discovery of every
Compass Bank file involving variable annuity, which required
the production of at least 21,246 customer files and 35,000
transactions unduly burdensome).
7 See Ex carte Norfolk Southern Rye Co., No. 1030476, 2004
WL 1950297, at *1 (Ala. Sept. 30, 2004) ("The burden rests on
the petitioner to demonstrate that its petition presents such
an exceptional case - that is, one in which an appeal is not
an adequate remedy.") (citation omitted).
10
Appeals , the trial court was not presented with such an
assertion, and thus could not be the basis for mandamus
relief . See Ex carte Dumas, 778 So. 2d 798, 801 (Ala. 2000)
(given the broad discretion vested in trial court with regard
to discovery , and given petitioner's failure to articulate
basis for protective order, even when specifically asked by
trial court , no abuse of discretion in trial court's failing
to restrict discovery ); see--also Ex rte McNair , 653 So. 2d
353, 360 (Ala. 1994 ) ( refusing to consider evidence on appeal
that was not presented to trial court).
In this case, the State ' s right to appeal pursuant to ALA.
R. CRIM. P. 32.10 is a more than adequate remedy to review the
trial court ' s ruling in this case. See. e.g ., Ex carte
Hutcher son, 847 So . 2d 386, 388 (Ala. 2002) . If and when
Judge McCooey rules against the State - either by finding that
the claims upon which discovery was granted are not
procedurally barred , or by granting relief-to Mr. Jackson on
the merits of claims for which the State contends that he has
not shown good cause - the error can be remedied on appeal.'
' Such a procedure is consistent with the Rules of
Criminal Procedure , which mandate that "once a ground of
preclusion has been pleaded, the petitioner shall have the
burden of disproving its existence by a preponderance of theevidence." ALA. R. CRIM . P. 32.3 ; see also Ex carte Pierce, 851
11
I
As such, the Alabama Court of Criminal Appeals erred in
issuing the writ of mandamus in this case.
ErredB . The Court of Criminal A sale-AlabamaGranting the Writ of Mandamus Because
The Trial Court-- Did Not Abuse its
Discretion As k n Has Shown "Good
Cause " for His Discovery Requests
In granting the State's petition for a writ of mandamus,
the Alabama Court of Criminal Appeals relied almost
So. 2d 606, 616 (Ala. 2000)(remanding for hearing on whether
claim of improper jury contact was procedurally barred where
record did not indicate whether "Pierce met his burden under
Rule 32.3 of disproving the existence of the ground of
preclusion by a preponderance of the evidence."). The trial
court's grant of discovery will afford Mr. Jackson the
opportunity, to which he is entitled, to disprove the claims
of procedural bar. See. e.g., DeBruce v. State, 890 So. 2d
1068, 1077 (Ala. Crim. App. 2003) (finding procedural bar
incorrectly applied by trial court where testimony at the
evidentiary hearing demonstrated that counsel did not learn of
information until five years after petitioner's trial);
McGahee v. State, 885 So. 2d 191, 203 (Ala. Crim. App. 2003)
(finding petitioner "sustained his burden of disproving
grounds of preclusion pleaded by the State" where evidence
demonstrated that trial counsel had no information about juror
misconduct and therefore could not have raiged claim at trial
or on appeal) . Should the trial court ultimately rule against
the State on these claims, the State can appeal to the Alabama
Court of Criminal Appeals for relief. See, e. g., State v.
Trussell, 880 So. 2d 1177 (Ala. Crim. App. 2003) (granting
state's appeal of circuit court's grant of postconviction
relief because circuit court did not have jurisdiction to
consider claim and claim was procedurally barred); State v.
Whitley, 665 So. 2d 998 (Ala. Crim. App. 1995) (on state's
appeal, reversing circuit court's grant of postconviction
relief on juror misconduct claim because claim wasprocedurally barred).
12
exclusively on one part of a casual comment made by Judge
McCooey at the hearing to conclude that she "failed to apply
the correct standard when evaluating Jackson ' s discovery
motions ." Ex parte State, 2005 WL 628485 , at *4. However, as
evidenced by both her order and statements , Judge McCooey's
decision to grant Mr. Jackson's discovery requests was based
on her finding that Mr. Jackson had established "good cause"
for the requested information. During the hearing, the judge
stated the following with regard to Mr. Jackson's discovery
requests:
But I think they're entitled to it. I mean, I read
their amended petition. They' re making some
arguments about some things that they think - I
think they're entitled to it. They get it. I'm
going to give it to them.
(Tab 3 , Exh. K, at 28). Further, the trial court stated in
its written order that its decision was based on the
"arguments from counsel for Petitioner Shonelle Jackson and
counsel for the State of Alabama and -upon review and
consideration of the motions and the responsive pleadings, as
well as Petitioner ' s amended petition, the State's answer, the
trial transcript and pleadings, . . . ." (Tab 3, Exh. J).
Moreover ., the opinion contravenes this Court ' s precedent
that trial judges are presumed to know the law and to follow
13
it. Ex cart S lat on, 680 So . 2d 909, 924 (Ala . 1996) (in
capital trial , no error where trial court did not state in
sentencing order that he considered all of the mitigating
evidence presented at trial as ""[ t]rial judges are presumed to
follow their own instructions , and they are presumed to know
the law and to follow it in making their decisions.")
Moreover, Mr. Jackson has shown "good cause" for his
discovery requests and the trial court did not abuse its
discretion by issuing these discovery orders . See Ex par.te
Land , 775 So . 2d 847 , 852 (Ala. 2000 ). In assessing whether
"good cause " has been demonstrated , a trial court should
consider the issues presented in the petition , the scope of
the discovery , the length of time between the conviction and
postconviction proceeding , the burden of discovery on the
State and the availability of evidence through other sources.
Ex arte Mack, No. CR-02-0431 , 2003 WL 1950008 , at *3 (Ala.
Crim . App. Apr. 25, 2003).
An evaluation of these criteria in this case makes clear
that "good cause" exists for Mr. Jackson's discovery requests.
First , as shown below , all of the requested discovery is
specifically related to facially valid legal claims contained
in Mr . Jackson ' s Rule 32 petition . With regard to the length
14
6
of time criteria, Mr. Jackson has filed a Rule 32 petition
within the prescribed statute of limitations, and is therefore
not abusing the Rule 32 process. Finally, there is no other
way for Mr. Jackson to obtain this discovery (Mr. Jackson
attempted to obtain discovery without the State's involvement
where possible), and all of the requested items are necessary
for Mr. Jackson to prove his claims. See Land, 775 So. 2d at
855 (without requested documents, it would be "practically
impossible for him to show that he suffered prejudice"). For
these reasons, Mr. Jackson has shown good cause for the
discovery, and the trial court's discovery order should stand.
1. Prosecution Files
The Alabama Court of Criminal Appeals concluded that the
trial court abused its discretion in granting discovery of the
following: files related to the prosecution of Mr. Jackson's
co-defendants, or any prior prosecutions related to Mr.
Jackson or his co-defendants; the bullet and shell casing
introduced at trial;9 records related to witnesses at his
9 The bullet and shell casing are simply a part of the
record in this case, and Mr. Jackson is therefore entitled to
access these items. Indeed the only reason that a court order
is necessary for these items, which were admitted at Mr.
Jackson's trial and made part of the record, is because these
items are in the possession of the Montgomery County Clerk's
office. The lower court's finding that Mr. Jackson should not
15
trial; visitor logs from the Montgomery County Detention
Facility and juror questionnaires and materials."
a. Files Relating the C07-Defendants and prior Prosecutions
be permitted to access these items should not be indulged by
this Court.
10 To the extent that the Alabama Court of Criminal
Appeals relied on the trial court's March 1, 2004, order,
finding the Brady and juror misconduct claims to be
procedurally barred pursuant to Rule 32.2(a)(3), (5) as a
basis for concluding that Mr. Jackson has not shown "good
cause" for his discovery requests, the lower court misread the
record. While the trial court did find that some of the
claims in Mr. Jackson's original petition were procedurally
barred, it specifically reserved a ruling on whether the
claims contained in his amended petition were procedurally
barred. Indeed, in its mandamus petition to the Alabama Court
of Criminal Appeals, the State of Alabama contended that Judge
McCooey "abused [her] discretion by granting Jackson's motions
for discovery before resolving the State's assertions of
procedural bars and insufficient pleading." (Tab 3, at 2).
For this reason, the lower court's reliance on the trial
court's ruling of March 1, 2004, dismissing claims in his
original petition, as a basis for concluding that Mr. Jackson
had failed to show "good cause" for discovery of items related
to claims in the amended petition, was in error. Ex Parte
State (In re: Shone Jackson v. Stat of Alabama), No.
CR-04-0096, 2005 WL 628485, at *5 (Ala. Crim. App. Mar. 18,
2005) (Tab 1).
Moreover, as argued in the trial court, both Brady claims
see, e .g., Martin v. State, 839 So. 2d 665 (Ala. Crim. App.
2001); Hamilton v. State, 677 So. 2d 1254 (Ala. Crim. App.
1995); Jefferson v. State, 645 So. 2d 313 (Ala. Crim. App.
1994), and juror misconduct claims are cognizable in Rule 32
proceedings. See, e.g., Exparte Dobyne, 805 So. 2d 763 (Ala.
2001); DeBruce v . State, 890 So . 2d 1068 (Ala. Crim. App.
2003) .
16
A
The Alabama Court of Criminal Appeals concluded that Mr.
Jackson is not entitled to the District Attorney's files of
his three co-defendants, which Mr. Jackson contends are
necessary to prove that the State entered into deals with the
co-defendants in exchange for their testimony," because "all
three codefendants testified [at trial] that they had not been
offered deals in exchange for their testimony," and because
the record reveals that the "circuit court gave the State
seven days to disclose this information," Mr. Jackson must
have "had access to this information before trial." Ex parte
State, 2005 WL 628485, at *5.
The lower court's finding belies a fundamental
misunderstanding of the nature of a claim pursuant to Brady v.
Maryland, 373 U.S. 83 (1969), and Giglio v. United States, 405
U.S. 150 (1972). First, it is true that prior to trial, Mr.
Jackson's trial counsel did file a request for discovery
11 Additionally, evidence contained in the District
Attorney's files related to prior prosecutions of Mr. Jackson
is necessary for Mr. Jackson to prove that his trial counsel
were ineffective for failing to challenge the underlying
convictions which formed the basis for the aggravating
circumstance against Mr. Jackson that "the capital offense was
committed by a.person under sentence of imprisonment." (Tab 3,
Exh. A, at 16).
17
pursuant to Brady v. Maryland, (C. 20 ),12 and a motion to
require the disclosure of deals and inducements, both of which
were granted by the trial court. (C. 50.) However, because
the State concealed this evidence, Mr. Jackson simply did not
have access to it at trial. See Banks v. Dretke, 540 U.S.
668, 693 (2004)(where State asserted on eve of trial that it
would disclose all Brady material, "Banks cannot be faulted
for relying on that representation"). The very nature of the
claim - the State's failure to turn it over - implicitly
rejects such a finding.
More critically, this finding does not contemplate proof
that Mr. Jackson may offer at an evidentiary hearing, i.e.,
testimony from a co-defendant that he had entered into a deal
in exchange for his testimony, and lied about this fact at
trial. See NaDue v. Illinois, 360 U.S. 264 (1959) (State's
presentation of false testimony violated defendant's due
process rights) ; Hamilton y_. _State, 677 So. 2d 1254 (Ala.
Crim. App. 1995) (postconviction relief granted where State
presented perjured testimony and suppressed exculpatory
evidence). Because this finding goes to the merits of the
12 This is a cite to the original trial record. As thelower court noted, this Court may take judicial notice of itsown records . Ex parte State, 2005 WL 628485 , at *5 n.4.
18
claim and not to whether Mr. Jackson has satisfied the
requisite pleading requirements forming the basis of his
discovery requests , this finding is erroneous.
Mr. Jackson has shown "good cause " for these records. He
contends that the State suppressed evidence at his trial,
including evidence of deals entered into with the co-
defendants in exchange for their testimony . Evidence of these
deals is likely contained in the District Attorney's file for
the prosecution of each of the co -defendants, and/or files on
prior prosecutions of these individuals ( for example , evidence
that a deal with one of the co-defendant resulted in dismissal
of or reduction of charges in a pending prosecution) Without
these files , Mr. Jackson will be unable to prove his
allegations that the District Attorney suppressed this
evidence , and will be prevented from succeeding on his claim.
See Land, 775 So. 2d at 8 55 (without requested documents, it
would be "practically impossible for him-'to show that he
suffered prejudice").
b. Jail Visitor Sign-In Sheets
With regard to Mr. Jackson's request for the visitor
sign - in sheets from the Montgomery County Detention Facility
- which Mr. Jackson contends will corroborate his allegations
19
of suppressed deals with the co-defendants with a record of
the times and dates that members of the District Attorney's
office visited with them prior to trial - the Alabama Court of
Criminal Appeals concluded that "this was information within
Jackson's own knowledge." Ex r State, 2005 WL 628485, at
*9. There is nothing in the record to suggest that Mr.
Jackson had any knowledge of who was visiting his co-
defendants while the four of them were incarcerated at the
jail. More critically, such documentary evidence is critical
to Mr. Jackson's ability to prove this claim.
Mr. Jackson has shown "good cause" for these files,
because without them, Mr. Jackson will be unable to prove his
allegations that the District Attorney suppressed this
evidence. Land, 775 So. 2d at 852.
c. Documents Relating State Witneas-es
The trial court additionally granted Mr. Jackson access
to documents relating to state witnesses at"trial, including
criminal and mental health records. In his Rule 32 petition,
Mr. Jackson alleged that the State has suppressed a number of
items, including information obtained from A.C. Porterfield,
a witness at his trial. The requested records will likely
contain the suppressed information, or lead to the discovery
20
of such information. Without access to records and documents
related to any state witnesses at Mr. Jackson's trial, Mr.
Jackson will be unable to prove his claim. See McMillian v.
State, 616 So. 2d 933, 948 (Ala. Crim. App. 1993) (capital
conviction and death sentence reversed in state postconviction
where petitioner presented evidence about a trial witness
found in Taylor Hardin medical records during Rule 32
proceedings).
The Alabama Court of Criminal Appeals found that the
trial court abused its discretion in granting discovery of
these records because its order runs contrary to the law
regarding third party records. First, while a criminal
defendant is not always entitled to criminal records of state
witnesses, Alabama court have recognized that the trial court
does not abuse its discretion by granting such discovery. See
Hardy v. State, 804 So. 2d 247, 285-86 (Ala. Crim. App. 1999),
aff'd, Ex parte Hardy, 804 So. 2d 298 (Ala. 2000) (where trial
court ordered disclosure of any criminal records of all lay
witnesses, decision was "within the trial court's discretion"
and "in keeping with the purpose and spirit of the holding of
the Alabama Supreme Court in Ex parte Monk").
Second, with regard to the mental health and juvenile
21
records of these witnesses, both state and federal law clearly
hold that evidentiary privileges must give way when they come
into conflict with constitutional rights. Davis v. Alaska,
415 U.S. 308 (1974) (Sixth Amendment right to confrontation
paramount to policy of protecting juvenile offender) ; Exxaarrte
Lynn, 477 So. 2d 1385 (Ala. 1985) (defendant's right to cross
examination unduly hampered by trial court's refusal to allow
questioning of state witness about juvenile record).
7--rCritically, in this case, while the lower court chastised
Judge McCooey for failing to conduct an in camera inspection
of the requested documents , Ex parte State, 2005 WL 628485, at
*8, neither the State nor any other state agency challenged
the discovery requests on the basis of privilege in the trial
court and thus, the trial court had no opportunity to fashion
a remedy for protecting privileged information (i.e., in
camera inspection, protective order).
d. Physical Evidence Introduced into
the Record at Trial
In rejecting Mr. Jackson's discovery request for access
to the bullet and shell casing introduced into evidence at
trial - which he contends are necessary to prove his claim
that trial counsel were ineffective for failing to challenge
the State's ballistics evidence and obtain the assistance of
22
a firearm and projectile in order to establish that Mr.
Jackson was not responsible for Mr. Moore ' s death ( Tab 3, Exh.
A., at 11 - 12, 24 ) - the Alabama Court of Criminal Appeals
concluded that Mr. Jackson can never establish that his
counsel were ineffective for these failings because testimony
elicited on cross-examination of the State ' s expert at trial
suggested that the bullet could have come from another gun. Ex
parte State , 2005 WL 628485, at *9.
However, the inquiry at this stage is not whether Mr.
Jackson wins on the merits of his claims, but rather whether
he has alleged facts , that if true, entitle him to relief.
Had an expert been retained by trial counsel to test the
bullets, and affirmatively testified to the jury that the gun
that Antonio Barnes or Christopher Rudolph was carrying likely
shot the projectile that caused the victim ' s death , there is
a reasonable probability that the outcome of the trial would
have been different . Mr. Jackson has thia 's alleged facts,
which, if proven true, would entitle him to relief . Land, 775
So. 2d at 852. That the State , and now the Alabama Court of
Criminal Appeals , believes that Mr. Jackson may not ultimately
succeed on the merits is not relevant to whether he has
sufficiently pled the claim and shown "good cause" for
23
discovery. Without access to the bullet and shell casing - in
order that they may be evaluated and independently tested -
Mr. Jackson will be unable to prove that trial counsel were
ineffective in this regard.
e. Juror estio it s and Materials
In his Rule 32 petition, Mr. Jackson alleged that his
rights to the use of peremptory challenges and to a fair and
impartial jury were violated when several jurors failed to
respond truthfully to multiple questions on voir dire. If
true, these allegations entitle Mr. Jackson to relief. Ex
part O'Leary, 438 So.2d 1372, 1375 (Ala. 1983) (conviction
reversed in postconviction where jury foreperson failed to
reveal, in response to questioning on voir dire, that he had
previously served as a foreperson on a criminal jury).
Without the juror questionnaires, Mr. Jackson will be unable
to prove his claim of juror misconduct, and he has therefore
articulated "good cause" for these questionnaires.
Additionally, Mr. Jackson requested documents relating to
the State's use of peremptory challenges during petitioner's
trial, documents relating to the use of racial criteria in the
jury selection process in criminal cases in Montgomery County,
and documents relating to any communication between the State
24
and any petit jury member, so that he may be able to prove
that trial counsel failed to adequately challenge the
prosecutor's discriminatory use of peremptory strikes in
violation of Batson v. Kentucky, 476 U.S. 79 (1986) and J.E.B.
v. Alabama, 511 U.S. 127 (1994). Montgomery County has a
documented history of discriminatory practices in jury
selection. See Sims v . State, 587 So . 2d 1271, 1277 (Ala.
Crim. App. 1991) ("In considering this issue, we have taken
note of the fact that the State in this case does not write on
a clean slate. A number of cases prosecuted in Montgomery
County have been reversed because of a Batson violation.")
Thus, Mr. Jackson has demonstrated "good cause" for
getting access to the jury materials in this case. See Land,
775 So. 2d at 852 ("to obtain discovery, a petitioner must
allege facts that, if proved, would entitle him to relief.").
2. Records of Louis Taylor13
13 The State additionally objected below to discovery of
the mental health records of Marilyn Jackson (Shonelle
Jackson's mother) because the request was overly broad, it
could be fulfilled by Ms. Jackson, and the records were
irrelevant to Mr. Jackson's claims. (Tab 3, Exh. I, at 9).
In its petition for mandamus in the Alabama Court of Criminal
Appeals, the State contended that these records were
privileged. (Tab 3, at 26) . This could not form the basis for
this Court's mandamus review. First, the trial court never
had the opportunity to address the issue of privilege because
it was never asserted in the trial court, and therefore should
25
The Alabama Court of Criminal Appeals agreed with the
State that the trial court abused its discretion in granting
discovery of Louis Taylor's records because "this information
was available through many other sources and [] the requested
records are not necessary to support this claim." Ex ar
State , 2005 WL 628485 , at *10. This is simply an insufficient
basis for finding that the trial court abused its discretion
in granting discovery of these records.
First, it is irrelevant whether the Alabama Court of
Criminal Appeals or the State can suggest a different method
by which Mr. Jackson can prove his claims . Because the State
is not conceding the facts related to this part of Mr.
Jackson's ineffectiveness claim," it is inappropriate for the
State or the lower court to dictate how it believes Mr.
Jackson should ultimately prove the truth of his allegations.
More importantly, the Court of Criminal Appeals' finding is
unsupported by law; there is no rule or c.se that suggests
that a court can deny a Rule 32 petitioner's discovery request
not be the basis for a writ of mandamus. Ex parte T.Q., No.
1021861, 2004 WL 2201931, at *3 (Ala. Oct. 1, 2004) ("our
review is limited to those facts that were before the trial
court") . Second, the issue of privilege is irrelevant in this
case , because Ms. Jackson has signed a release of her records.
14 (See Tab 3 , Pet. Exh. B, at 54)("This claim is
denied.").
26
A
simply because a lawyer for the State (or a member of the
court) thinks there are other ways to prove the claim.
In addition, as Alabama courts have recognized, Wiggins
v. Smith, 539 U.S. 510 (2003), mandates that in a capital
case, trial counsel "has a duty to conduct a reasonable
investigation including an investigation of the defendant's
background for possible mitigating evidence." Harris v_.
State, No. CR-01-1748, 2004 WL 2418073, at *42 (Ala. Crim.
App. Oct. 29, 2004) (in jury override case, reversing for new
penalty phase where trial counsel found ineffective for
failing to investigate and present mitigating evidence). In
order to prove that counsel at Mr. Jackson's trial were
ineffective, he must show that they failed to comply with the
requirements of Wiggins, and that Mr. Jackson was prejudiced
by this failure. Mr. Jackson's father's records are necessary
not only to prove the claims in the petition, but also to
discover additional mitigation evidence that has yet to have
been uncovered. See ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases,
Commentary to § 10.7 n.215 (Revised Ed. Feb. 2003) ("Records
may document events that neither the client nor family members
remember."); see also Williams v, Taylor, 529 U.S. 362, 395
27
.r r
n.19 (2000) (relying on social worker's descriptions of the
Williams home that could not have been provided by the client,
who was too young, and the adult family members, who were too
intoxicated, to recall the scene); Lewis y. Dretke, 355 F.3d
364, 368-69 (5th Cir. 2003) (in finding that counsel was
ineffective for failing to adduce evidence of petitioner's
abusive childhood, court relied in part on corroborating
evidence in the form of medical records and other record
evidence to support testimony of family witnesses); Van Dohlen
v. State, 602 S.E.2d 738, 741 (S.C. 2004) (finding counsel
ineffective for failing to investigate psychiatric evidence,
including "medical records of Petitioner's father," for
presentation at penalty phase of capital trial).
Mr. Jackson's request is not unduly burdensome. Mr.
Jackson has alleged that his father has had interaction with
all of the identified agencies. As this Court recognized in
Land: "if these facilities have no documents that relate to
Land's claims, they can simply say so. Merely determining
whether such documents exist would not unduly burden the
State." Land, 775 So. 2d at 855.
Finally, by suggesting that Mr. Jackson is entitled to
prove the facts related to his father (albeit by "other
28
available means"), the lower court has concluded that the
information Mr. Jackson is seeking is relevant to his claims,
and thus that Mr. Jackson has shown "good cause" for these
records.
3. Records of the Department of Human
Resources and the Alabama Board of Pardons
and Paroles
In his motion for discovery, Mr. Jackson additionally
requested records from the Department of Human Resources
("DHR") and the Alabama Board of Pardons and Paroles.
With regard to the DHR records, the Alabama Court of
Criminal Appeals15 credited the amicus brief filed by DHR and
concluded that the trial court abused its discretion by
failing to grant discovery of these records without first
holding an in camera hearing. Ex rte State, 2005 WL 628485,
at *10. Similarly, the lower court found that the trial
court's order, permitting Mr. Jackson access to records of the
Alabama Board of Pardons and Paroles violates the Alabama Code
151t is worth noting that the State conceded in the trial
court that Mr. Jackson was entitled to these records, (see Tab
3, Exh. H, at 11) ("The State has no objection to this Court
granting both Jackson and the State access to any and all
institutional records pertaining to Shonelle Andre Jackson in
the possession of the Alabama Department of Human
Resources."), and at no point did the State raise an objection
to the discovery of these records in either of the courts
below.
29
4
because [t]he records maintained by the Board are not subject
to inspection." Id.
However, because objections on this basis were never
brought before Judge McCooey, she did not have the opportunity
to fashion an appropriate remedy with regard to these records.
II. CONCLUSION
The State of Alabama failed to demonstrate that this is
an exceptional case warranting mandamus review, and thus the
Alabama Court of Criminal Appeals erred in granting the
State's petition for a writ of mandamus to Judge McCooey.
For all of the reasons set forth in these pleadings, Mr.
Jackson respectfully requests that this Court direct the
Alabama Court of Criminal Appeals to vacate its order setting
aside Judge McCooey's orders granting discovery in this case.
Respectfully-submitted,
Br ' Stevenson
Angela SetzerEqual Justice Initiative of Alabama122 Commerce StreetMontgomery, AL 36104PH: (334) 269-1803FAX: (334) 269-1806
Counsel for Mr. Jackson
Dated: April 1', 2005
30
CERTIFICATE OF SERVICE
Pursuant to Rule 21(a) of the Alabama Rules of Appellate
Procedure, I certify that on April 1, 2005, I served a copy of
the attached pleading by hand-delivery to:
Alabama Court of Criminal Appeals
Judicial Building300 Dexter AvenueP.O. Box 301555Montgomery, AL 36130-1555
and by first class mail, postage pre-paid, and properly
addressed to:
Honorable Tracy S. McCooeyCircuit JudgeMontgomery County Circuit Court
251 S. Lawrence Street
Montgomery , AL 36104
Troy King
James R. Houts
Jeremy McIntire
Office of the Attorney General
Capital Litigation Division
Alabama State House
11 South Union StreetMontgomery, AL 36130
Sharon Ficquette
Assistance Attorney General
Department of Human Resources
Alabama Department of Human Resources
Office of General Counsel
50 N. Ripley Street
Montgomery, Al 36130
31
11
11111111I
NO.
IN THE SUPREME COURT OF ALABAMA
EX PARTE SHONELLE ANDRE JACKSON
(In re: Ex parte State of Alabama
(In re : Shonelle Andre Jackson,Petitioner
V.
State of Alabama,Respondent))
Alabama Court of CriminalAppeals No . CR-04-0096
Montgomery County CircuitCourt No. CC -97-2300.60
APR - 1 2005
FILED
APR -1 2005
(CLERKALA COURT CRIMINAL APPEALS
PETITIONER ' S APPENDIX TOPETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OFCRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY,
CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT
VOLUME I OF III
April 1, 2005
Bryan A. StevensonAngela L. Setzer
Equal Justice Initiative ofAlabama
122 Commerce StreetMontgomery , AL 36104Ph: (334 ) 269-1803Fax: (334 ) 269-1806
Counsel for Shone lie Jackson
111
NO.
IN THE SUPREME COURT OF ALABAMA
EX PARTE SHONELLE ANDRE JACKSON
(In re : Ex parts State of Alabama
(In re : Shonelle Andre Jackson,
Petitioner
V.
State of Alabama,
Respondent))
Alabama Court of CriminalAppeals No. CR-04-0096
1111
111
Montgomery County CircuitCourt No . CC-97-2300.60
PETITIONER ' S APPENDIX TO
PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OF
CRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY,CIRCUIT JUDGE , FIFTEENTH JUDICIAL CIRCUIT
VOLUME I OF III
Bryan A. StevensonAngela L. Setzer
Equal Justice Initiative ofAlabama122 Commerce Street
Montgomery , AL 36104Ph: (334) 269-1803
Fax: (334 ) 269-1806
April 1, 2005 Counsel for Shonelle Jackson
IINDEX TO APPENDIX OF EUIRITS
1
TAB 1 Opinion of the Alabama Court of Criminal Appealsdated March 18, 2005
TAB 2 Order of Honorable Judge Tracy S. McCooey datedMarch 23, 2005
TAB 3 State of Alabama's Petition for Writ of Mandamus toHonorable Tracy S. McCooey, Circuit Judge, FifteenthJudicial Circuit; Volumes I, II of Exhibits
Exhibit A Shonelle Jackson's Amended Rule 32Petition
111
1
111tI
Exhibit B State' s Answer to Shonelle Jackson'sAmended Rule 32 Petition
Exhibit C State's Motion to Dismiss ProcedurallyBarred Claims
Exhibit D State's Motion to DismissInsufficiently Plead Claims
Exhibit E State's Motion to Dismiss ClaimsPursuant to Rule 32.7(d)
Exhibit F Mr. Jackson's Motion for Discovery ofInstitutional Records, Files, andInformation Necessary to a Fair Rule32 Evidentiary Hearing
Exhibit G Mr. Jackson's Motion for Discovery ofProsecution Files, Records andInformation Necessary to a Fair Rule
32 Evidentiary Hearing
Exhibit H State's Response to Mr. Jackson'sMotion for Discovery of InstitutionalRecords, Files, and InformationNecessary to a Fair Rule 32Evidentiary Hearing
1
11
Exhibit I State 's Response to Mr . Jackson'sMotion for Discovery of ProsecutionFiles, Records , and InformationNecessary to a Fair Rule 32Evidentiary Hearing
Exhibit J Mr. Jackson's Response to the State'sOpposition to his Discovery Requests
1 Exhibit K Transcript of the Hearing Held onOctober 13, 2004 in the MontgomeryCounty Circuit Court on the Parties'Motions
Exhibit L Circuit Court's Order of October 13,2004
1
1
1
111
TAB 4 Shonelle Jackson's Answer in Opposition to the Stateof Alabama's Petition for Writ of Mandamus toHonorable Tracy S. McCooey, Circuit Judge, FifteenthJudicial Circuit
Exhibit A Petitioner's Response to the State'sMotions to Dismiss
TAB 5 Brief of Amicus Curiae of the Alabama Department toHuman Resources
TAB 6 Petitioner's Objection to this Court's Signing ofthe State's Proposed Orders Without Modification
TAB 7 State's Response to Jackson's Objection to thisCourt's Signing of the State's Proposed Orderswithout Modification
2
FOR EDUCATIONAL USE ONLY Page 12005 WL 6284851 --- So.2d --
I
1
11
1
I
(Cite as: 2005 WL 628485 (Ala.Crim.App.))
Only the Westlaw citation is currently available.
NOT YET RELEASED FOR PUBLICATION.
Court of Criminal Appeals of Alabama.Ex parte STATE of Alabama(In re Shonelle Andre Jackson
V.State of Alabama).
CR-04-0096.
March 18, 2005.
Background : Following appellate affirmance, 836So.2d 979, of his capital murder conviction andsentence of death, petitioner sought post-convictionrelief, and filed motions for discovery in connectiontherewith. The Circuit Court, Montgomery County,CC-97-2300.60, Traci! S. _McCooev, J., grantedmotions. State petitioned for writ of mandamusdirecting vacation of discovery orders.
Holdings: The Court of Criminal Appeals held that:post-conviction court abused its discretion by
ordering discovery without first determining whetherpetitioner had shown good cause therefor;
M post-conviction court improperly granteddiscovery with respect to claims it had previously heldto be procedurally barred;
0 mental health records of witnesses for state wereprotected by psychotherapist-patient privilege;
post-conviction court improperly granted petitionerunlimited discovery of juvenile records of all witnesseswithout in camera examination;
petitioner was unable to demonstrate good causefor discovery of bullet recovered from victim's bodyand shell casing found in area where victim was killed;()post-conviction court improperly granted petitionerdiscovery of records containing information availablethrough other, less intrusive sources; and
post-conviction court abused its discretion inallowing petitioner full access to files maintained by
state Department of Human Resources (DHR).Petition granted; writ issued.
Shaw. J., concurred in part and in result, with opinion.
W Criminal Law €0
IlOkOk.When ascertaining whether discovery is warranted in apost-conviction proceeding, the court must firstdetermine whether the petitioner has shown good causefor disclosure of the requested materials. RulesCrim.Proc., Rule 32. 1 et seq.
M Criminal Law 4 C=OI I0k0 k.Post-conviction court abused its discretion, by orderingdiscovery without first determining whether petitionerhad shown good cause for discovery; court's ruling wasbased upon its belief that there was nothing "wrong"with letting petitioner have extensive discovery in acapital case . Rules Crim.Proc., Rule 32. 1 et seq.
IM Criminal Law C'0I lOkO k.Post-conviction court improperly granted petitionerdiscovery of files of district attorney's office related topetitioner's three co-defendants on capital-murdercharges, where post-conviction court had already ruledthat claims petitioner sought files to support, namely,that his co-defendant had entered into undisclosed"deals or agreements" with state, were procedurallybarred, co-defendants had testified at trial that they hadnot been offered any deals in exchange for theirtestimony, and petitioner's trial counsel sought andobtained disclosure of any "deals or inducements"offered any witnesses prior to trial. Rules Crim.Proc.,Rule 32.1 et seq.
L41 Criminal Law C'0I iOkO k.Court of Criminal Appeals may take judicial notice ofits own records.
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LSJ Criminal Law 0=0110k0 k.Post-conviction court improperly granted petitionerdiscovery of records with respect to all witnesses whotestified for state at petitioner's capital murder trial,where post-conviction court had already ruled thatclaims petitioner sought records to support wereprocedurally barred. Rules Crim.Proc.. Rule 32.1 etseq.
161 Criminal Law C'0I lOkO k.When requested documents relate to a post-convictionclaim that is procedurally barred, there can be noshowing of good cause for the disclosure of therequested information.
[ j Criminal Law € 01 l 0k0 k.Defendant is not entitled to discover the criminalrecords of a state witness.
181 Criminal Law C=011 00k0 k.Mental health records of witnesses for state in capitalmurder prosecution were protected bypsychotherapist-patient privilege and were not subjectto discovery by petitioner in post-convictionproceedings. Rule 503, Ala.R.Evid; Rules Crim.Proc..Rule 32.1 et seq.
j91 Criminal Law C'01 I Ok0 k.Post-conviction court improperly granted petitionerunlimited discovery of juvenile records of all witnessesin petitioner's capital murder prosecution, especiallywhere post-conviction court conducted no in cameraexamination of such records. Code 1975. & 12-15-100;Rules Crim.Proc., Rule 32.1 et seq.
W01 Criminal Law C=0I lOkO k.Defendant is not entitled to unfettered access toprivileged documents.
1111 Criminal Law C0110k0 k. ,
Post-conviction court improperly granted petitionerdiscovery of juror questionnaires and other documentsrelated to jury-selection process, where post -convictioncourt had already ruled that petitioner's claim of jurormisconduct was procedurally barred, and claims relatedto alleged discrimination during jury selection processhad been addressed and finally determined inpetitioner's direct appeal. Rule 32.2.2(ax3) and (a)(5),Ala.RCrim.P.
L L21 Criminal Law €0I lOk0 k.Post-conviction petitioner was unable to demonstrategood cause for discovery of bullet recovered frommurder victim's body and shell casing found in areawhere victim was killed, where such items wereintroduced into evidence at petitioner's trial, andpost-conviction claim petitioner sought to advancethrough use thereof was raised through testimony ofstate's expert at trial. Rules Crim.Proc.. Rule 32.1 etseq.
[131 Criminal Law C0ll_Ok0k.
Post-conviction court improperly granted petitionerdiscovery of jail visitor sign-in sheets showing whovisited petitioner and his three co-defendants in capitalmurder prosecution while they were in jail awaitingtrial, where post-conviction court had already ruled thatclaims petitioner sought files to support, namely, thathis co-defendant had entered into undisclosed "deals oragreements" with state, were procedurally barred. RulesCrim.Proc.. Rule 32. 1 et seq.
L1 Criminal Law C=:;;10I I0k0 k.Post-conviction petitioner was unable to demonstrategood cause for discovery of his own jail visitor sign-insheets, where information contained therein was withinpetitioner's own knowledge . Rules Crim.Proc., Rule
J et seq.
[151 Criminal Law C€0I I0k0 k.Post-conviction court improperly granted petitionerdiscovery of records of numerous agencies with respectto petitioner's father, where information contained
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therein, alleged by petitioner to be relevant inmitigation, was available through many other, lessintrusive sources.
jj6j Criminal Law €0I lOkO k.Post-conviction court abused its discretion in allowingpetitioner full access to files maintained by stateDepartment of Human Resources (DHR) with respectto petitioner's father, especially where petitioner did notseek, and post-conviction court did not propose orconduct, in camera examination of such records, andwhere order granting petitioner access to DHR filesdirected DHR to violate its statutory obligation to treatsuch filed as privileged and confidential . 38-2-1 ets m., Ala.Code 1975 ; Code 1975, 15-22-36
j><. Criminal Law k=01 lOkO k.Petitioner does not have an unlimited and unqualifiedright to discovery in a postconviction proceeding.
1i 1 Courts O106k0 k.Court of Criminal Appeals has no authority to adoptprocedural rules of court; the sole responsibility fordoing so rests with the state Supreme Court. Ala. Coast.of 1901, Amend No. 328, § 6.11.Petition for Writ of Mandamus.
Montgomery Circuit Court (CC-97-2300.60).
PER CURIAM.
*1 The State ofAlabama filed this petition for a writ ofmandamus directing Judge Tracy S. McCooey to vacatethe discovery orders relating to Shonelle AndreJackson's petition for postconviction relief in which heattacked his capital -murder conviction and sentence ofdeath. Jackson was convicted of murdering LefrickMoore during the course of a robbery and wassentenced to death . Jackson's conviction and deathsentence were affirmed on direct appeal . See Jackson v.State, 836 So.2d 915 (Ala.Crim„Ann. 1999), affd, 836So 2d 979(Ala.2002).
In July 2003, Jackson filed a Rule 32, Ala.R.Crim.P.,
petition attacking his conviction and death sentence. Hefiled an amended petition in March 2004. Jackson thenfiled two lengthy discovery motions relating to his Rule32 petition. The State filed detailed objections to eachmotion. In October 2004, Judge McCooey held ahearing on the discovery motions ; after the hearing, shegranted the motions. The State then filed this mandamuspetition and a request that we stay all action in thecircuit court pending this Court's disposition of thisextraordinary petition. By order dated November 30,2004, we stayed all action in the lower court andallowed the respondents 21 days to answer theallegations contained in the mandamus petition . Jacksonhas filed an answer in this case and the Department ofHuman Resources ("DHR") has filed a brief as amicuscuriae.
The State asserts that Judge McCooey failed to findgood cause before she ordered discovery in thispostconviction proceeding, that she erred in orderingdiscovery on issues that had been held to beprocedurally barred, and that she exceeded the limitedscope of discovery by ordering discovery of allcriminal, mental-health, and correctional records of allwitnesses for the State. It cites numerous other groundsin support of the issuance of this writ. ff1N 1
Jackson's first discovery motion requested theproduction of the following records: all records of theDepartment of Corrections ("DOC") related to LouisWendell Taylor, Jackson's father; all medical,psychological, psychiatric, or mental-health recordsrelated to Jackson and his father; all records of theAlabama Board of pardons and Paroles ("the Board")related to Jackson and his father; and all DHR recordsrelated to Jackson and his father.
The second discovery motion requested that the districtattorney turn over its entire case file related to thevictim 's murder and its case files related to theprosecution of Shonelle Andre Jackson and his threecodefendants-Antonio Barnes , Eric Williams, andChristopher Rudolph. The motion also requested "alldocuments related to all State witnesses who hadtestified at Jackson's trial ," including but not limited tothe witnesses' juvenile records, sentencing reports,arrest and conviction records, records of any
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law-enforcement authority, psychiatric , psychological,and mental-health records , and other records andreports . The motion further stated:
*2 "This request specifically applies to, but is notlimited to the following : the Montgomery CountyDistrict Attorney's Office , the City of MontgomeryPolice Department, the Montgomery County PoliceDepartment, the Montgomery County SheriffsDepartment, the Montgomery Fire Department, theMontgomery County Detention Facility, theMontgomery City Jail, the Montgomery ViolentCrime Task Force, the Alabama Department of YouthServices , the Alabama Department of Corrections,the Alabama Department of Forensic Sciences, theAlabama Department of Pardons and Paroles, theAlabama Department of Mental Health and MentalRetardation , specifically including Taylor HardinSecure Medical Facility and Bryce Hospital and theMontgomery County Juvenile, Family, District andCircuit Courts and the Montgomery MunicipalCourt."
The State filed detailed objections to each discoverymotion . Judge McCooey held a hearing , at which shestated:
"I hear what you're saying, but I mean, we're talkingabout, you know , someone 's life . Okay. So, I mean,the stakes are as high as they can get. You know,we're not talking about someone who is just going toprison for a number of years or whatever . I mean,we're-you know, the stakes are as high as they get.What is wrong with letting them have the discovery?If they are on a fishing expedition, then they're notgoing to be able to prove it anyway."(Emphasis added.) Judge McCooey then granted
unlimited discovery from all departments and agencieslisted in Jackson 's discovery motions.
L11 When ascertaining whether discovery is warrantedin a Rule 32 proceeding , the court must first determinewhether the Rule 32 petitioner has shown good causefor disclosure of the requested materials. As theAlabama Supreme Court stated in Ex parse Lan 775So.2d 847 (Ala.2000):
"We agree with the Court of Criminal Appeals that'good cause ' is the appropriate standard by which tojudge postconviction discovery motions . In fact,
Page 4
other courts have adopted a similar 'good-cause' or'good-reason' standard for the postconvictiondiscovery process. See [State vj Marshall, 1148 N.J.89,690 A.2d 1. cert. denied, 522 U. S. 850,118 S.Ct.140. 139 L.Ed.2d 88 (1997) ]; State v. Lewis. 656So.2d 124$ (Flamm; People ex rel. Daley v.F1tzerala! 123 111.2d 175, 121 111.Dec. 937, 526N.E.2d 131( 1988). As noted by the Illinois SupremeCourt, the good-cause standard guards againstpotential abuse of the postconviction discoveryprocess . See Fitz erg ald. supra, 123 I11.2d at 183. 121I1l.Dec . 937.526 N.Ed.2d at 135....
By adopting this standard , we are onlyrecognizing that a trial court , upon a petitioner'sshowing of good cause , may exercise its inherentauthority to order discovery in a proceeding forpostconviction relief. In addition, we caution thatpostconviction discovery does not provide apetitioner with a right to 'fish' through official filesand that it 'is not a device for investigating possibleclaims, but a means of vindicating actual claims.'People v. Gonzalez. 51 Cal.3d 1179. 1260, 800 P.2d1159, 1206, 275 Cal.Rntr. 729. 776 (1990), cert.denied, 502 U.S. 835. 112 S.Ct. 117,116 L.Ed.2d 85(1991). Instead, in order to obtain discovery, apetitioner must allege facts that, if proved, wouldentitle him to relief."
*3 775 So.2d at 852.
Though Alabama has had little opportunity to definewhat constitutes "good cause," in Ex parte Mack [Ms.CR-02-0341, April 25, 2003] --- So.2d ----, ----(Ala.Crim.App.2003), we quoted with approval anIllinois case the Alabama Supreme Court relied on inLand-People Y. Johnson. 205 111,26 381, 275 I11.Dec.820, 793 N.E.2d 591 (2002):
"'A trial court has inherent discretionary authority toorder discovery in post-conviction proceedings. SeePeg le ex red. Dal v. Fitz erald. 123 Ill.2d 175,183.121 I11.Dec. 937, 526 N.E.2d 131 (1988);People v. Rose. 48 I11.2d 300, 302.268 N.E.2d 700(1971). A court must exercise this authority withcaution, however, because a defendant may attemptto divert attention away from constitutional issueswhich escaped earlier review by requestingdiscovery.... Accordingly, the trial court should allowdiscovery only if the defendant has shown "good
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cause, " considering the issues presented in thepetition, the scope of the requested discovery, thelength of time between the conviction and thepost-conviction proceeding, the burden of discoveryon the State and on any witnesses, and theavailability of the evidence through other sources.Daley, 123 11.2d at 183 -84 121 I1l .Dec. 937 , 526N.E.2d 131: see People v. Fair 193 Ill.2d 256.264-65, 250 Ill.Dec . 284, 738 N .E.2d 500 (200).We will reverse a trial court 's denial of apost-conviction discovery request only for an abuse
250 I284
discretion.7,38 N.E,2d 500. A trial court d 6oes not abuse its2 se its
discretion in denying a discovery request whichranges beyond the limited scope of a post-convictionproceeding and amounts to a "fishing expedition." "'
--- So.2d at ---- (quoting Johnson. 205111 .2d at 408,275 I11.Dec. at 836-37.793 N.E.2d at 607-08). See alsoState v. Lewis. 656 So .2d 1248 (F1a.1994).
The New Jersey Supreme Court in State v. Marshall148 N.J. 89,690 A .2d 1 (1997), a case also cited withapproval by the Alabama Supreme Court in Land,stated:
"We anticipate that only in the unusual case will aPCR [postconviction relief] court invoke its inherentright to compel discovery . In most cases, apost-conviction petitioner will be fully informed ofthe documentary source of the errors that he brings tothe PCR court's attention . Moreover, we note thatPCR'is not a device for investigating possible claims,but a means for vindicating actual claims.' PewGonzalez. $1 Ca1,3d 1179, 275 Cal.Rptr. 729. 776,800 P.2d 1159, 1206 (1990), cert. denied, 502 U.S.835.,.112 S,Ct- 117, 116 L.Ed.2d85(1921).Thefiling of a petition for PCR is not a license to obtainunlimited information from the State, but a meansthrough which a defendant may demonstrate to areviewing court that he was convicted or sentenced inviolation of his rights...."Moreover, consistent with our prior discoveryjurisprudence, any PCR discovery order should beappropriately narrow and limited . '[T]here is nopostconviction right to " fish" through official files forbelated grounds of attack on the judgment, or toconfirm mere speculation or hope that a basis forcollateral relief may exist ' Gonzalez, supra. 275
Cal.Rptr. at 775. 800 P .2d at 1205: see De u v.Taylor. 19 F.3d 1485, 1493 (3d Cir,), cert. denied,512 U.S. 1230, 114 S.Ct. 2730 , 129 L.Ed.2d 853
11994); State v. Thomas. 236 Neb. 553,462 N.W.2d862. 867-68 (1990). However where a defendantpresents the PCR court with good cause to order theState to supply the defendant with discovery that isrelevant to the defendant's case and not privileged,the court has discretionary authority to grant relief.See Rules Governing Section 2254 Cases in theUnited States District Courts, 28 U.S.C.A. § 2254Rule 6(a); [ate v. j Lewis.... 656 So .2d [1248J1250 [ (Fla.1994) ]; (People ex rel. Daley v.1Fitzgerald r123 I11.2d 175,183,1 121 I11.Dec. [937.1941, 526 N .Ed.2d [131 ,] 135 [ (1998) ] (noting that'good cause' standard guards against potential abuseof PCR discovery process)."
*4 Marshad, 148 N .J. at 270-71.690 A.2d at 91-92.
The federal courts have adopted a similar standard fordiscovery in relation to federal habeas corpus actions.FN2 In Murphy v. Bradshaw, [No. C-1-03- 053,
September 13, 2003] (S.D.Ohio 2003) (not published),an Ohio court stated:
"A habeas petitioner is not entitled to discovery as amatter of course, but only upon a fact-specificshowing of good cause and in the Court's exercise ofdiscretion. Rule 6(a), Rules Governing 122M Cases;Bracy v. Gramley,520 U .S. 899,117 S.Ct. 1793.138L.Ed.2d 97 (1997); Harris v. Nelson. 394 U.S. 286,89 S.Ct. 1082. 22 L.Ed.2d 281 (1969); rd v.Collins. 209 F.3d 486.515-16 (6th Cir.2000). Goodcause exists 'where specific allegations before thecourt show reason to believe that the petitioner may,if the facts are fully developed, be able todemonstrate that he is ... entitled to relief ...: Bracy,520 U.S. at 908-909, quoting Harris. 394 U.S., at300. 89 S.Ct., at 1091. Conversely, where apetitioner would not be entitled to relief on aparticular claim, regardless of what facts hedeveloped, he cannot show good cause for discoveryon that claim."
(Emphasis added.) "This authority [to order discoveryin postconviction proceedings] must be exercised withcaution, because of the potential for abuse of thediscovery process and because of the limited scope ofpostconviction proceedings ." People v. Williams. 209
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Ill.2d 227. 236. 282 I1l.Dec._ 824. 830. 807 N.Ed.2d448, 454 (2004). "[T]he range of issues in apost-conviction proceeding is relatively narrow, anddiscovery requirements are correspondingly limited."People ax rel. Dabv v. Fitz2erala 123 I11.2d 175. 182.121 III-Dec. 940, 526 N.E.2d 131, 134 ( 1988 ) .
With these standards in mind, we review theallegations contained in the State's petition for a writ ofmandamus.
1.IQ The State first argues that Judge McCooey abusedher discretion by ordering discovery without firstdetermining whether the petitioner had shown goodcause for the discovery.
It is clear from reading the transcript of the discoveryhearing that Judge McCooey failed to apply the correctstandard when evaluating Jackson's discovery motions.As stated above Judge McCooey noted the severity ofthe sentence imposed in the case and stated: "What iswrong with letting them have the discovery? If they areon a fishing expedition, then they're not going to be ableto prove it anyway."
Because more discovery matters will arise in this case,we take this opportunity to offer the circuit courtguidance in such discovery matters.
II.J U The State further argues that the circuit court erredin granting discovery of the files of the districtattorney's office related to Jackson 's three codefendantsin the capital-murder charges . [FN31 In Jackson'sdiscovery motion , Jackson alleged that the files of hiscodefendants were necessary to prove his Bra v.Maryland 373 U.S. 23.83 S.Ct, 1194, 10 L.E4.2d 215
1(969), claim because , he argued, the State failed todisclose "deals or agreements that had been entered intobetween the prosecution and the co-defendants whotestified for the State."
*5 The exhibits filed with this mandamus petition showthat on March 1, 2004, approximately seven monthsbefore the hearing on Jackson's discovery motions,Judge McCooey issued an other dismissing Jackson's
Brady claim as procedurally barred under Rule32.2(a)(3) and (a)(5), Ala.R.Crim.P. Jackson refers toJudge McCooey's March 1, 2004, order in severalfootnotes in his second discovery motion. Jackson alsostates that he moved that Judge McCooey reinstatethose issues she had previously found to beprocedurally barred. However, the only order issued bythe circuit court included in the exhibits filed with thispetition is the order granting the discovery motions. Wedo know that the claims the circuit court had previouslydismissed as procedurally barred were discussed at thediscovery hearing. It was Jackson's contention thatdiscovery would assist him in developing more facts onthe issues that Judge McCooey had previously held tobe procedurally barred. In Hooks v. State 822 So.2d476 (Ala.Crim.App.2000), we held:
"We agree with the State that a claim that isprocedurally barred in a postconviction petitionclearly is not one that entitles a petitioner to relief. Ifa postconviction claim does not entitle the petitionerto relief, then the petitioner has failed to establishgood cause for the discovery of materials related tothat claim. See Land."822 So.2d at 481. "[I]f a particular claim is
procedurally defaulted, no matter what facts a petitionerdevelops, he will not be able to show that he is entitledto relief. Therefore, there can be no good cause to allowdiscovery of facts underlying a procedurally defaultedclaim." Murphy v. Bradshaw, [No. C-1- 03-053,September 13, 2003] -- F.Supp. -, ---- (S.D.Ohio).
fg Also, a review of the transcript of Jackson 's trialshows that all three codefendants testified that they hadnot been offered any deals in exchange for theirtestimony . fFN41 Before Jackson 's trial his attorneyfiled a pretrial motion styled a "Motion to Require theDisclosure of Deals and Inducements ." This motionrequested the disclosure of "all deals or inducements ofwhat type whatsoever for any witness to testify againstShonell[e] Jackson at trial." The record of the directappeal shows that this motion was granted and that onFebruary 2, 1998 , the circuit court gave the State sevendays to disclose this information . It appears thatJackson had access to this information before trial.
III.L51 The State also argues that Judge McCooey erred in
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allowing discovery of all criminal , mental-health, andcorrectional records for all witnesses who testified forthe State at Jackson 's trial.-rFN51
In Jackson's second discovery motion he requested thefollowing:
"All documents relating to any State witnesses atShonelle Andre Jackson 's trial , including: 1) alljuvenile detention, jail, prison , parole, probation, andpre-sentence investigation records ; 2) all sentencingreports ; 3) all arrest, conviction, and adult andjuvenile criminal offense records ; 4) all records ofany law enforcement authority , including alldocuments relating to any plea negotiations betweenany State witness and the State; 5) all records of anydetention or court authority ; 6) all records of anyprosecuting authority ; 7) all psychiatric,psychological, and mental health records; 8) alldocuments relating to any lie detector tests taken byany State witness; 9) all other records any reports."
*6 The motion further stated that this information wasrequested from, but was not limited to, the followingagencies : the Montgomery County District Attorney'sOffice, the City of Montgomery Police Department, theMontgomery County Sheriffs Department, theMontgomery Fire Department , the Montgomery CountyDetention Facility, the Montgomery city jail, theMontgomery Violent Crimes Task Force , the AlabamaDepartment of Youth Services, the AlabamaDepartment of Corrections , the Alabama Department ofForensic Sciences , the Alabama Department of Pardonsand Paroles , the Alabama Department of Mental Healthand Mental Retardation (specifically including TaylorHardin Secure Medical Facility and Bryce Hospital),and the Montgomery County juvenile , family , districtand circuit courts and the Montgomery municipalcourts.
10 Jackson contends that these documents related tohis Brady claim--a claim Judge McCooey hadpreviously found was procedurally barred. Whenrequested documents relate to a claim that isprocedurally barred there can be no showing of goodcause for the disclosure of the requested information.See Hooks.
jf, Moreover, a defendant is not entitled to discover
the criminal records of a State witness . As this Courtstated in Hardy v. State. 804 So.2d 247LA1a.Crim .Auu.1999):
"As a general rule, the government need not discloseevidence available to the defense from other sourcesor evidence that the prosecution could not reasonablybe imputed to have knowledge of or control over.Mills v. Singl^tary. 63 F,34 9991 1 1th Cir.1995). cert.denied, 517 U.S. 1214. 116 S.Ct. 1837 , 134 L.Ed.2d940 (1996); United States v. Moore. 25 F.3d 563 (7thW. , cert . denied, 513 U.S; 939,115 S .Ct. 341, 130L.Ed.2d 297 (1994)."We have held in Alabama in a number of cases thata defendant is not entitled to the general disclosure ofthe criminal records of the state 's witnesses . See, e.g.,Davis v. State 554 So.2d 1094 Ala .Crim.A _Up. 1,affd, 554 So.2d 1111 (Ala.1989), cert. denied, 498U.S. 1127, 111 S.Ct. 1091, 112 L.Ed.2d 1196(1991); Wright v. State , 424 So.2d 684( la.Crim .Aop.1982) (no absolute right of disclosureof criminal records of state 's witnesses); M . dor is v.State. 423 So .2d 331 (Ala;Crim ,Ann.1982); Mack v.State_375 So.2d 476 (Ala.Crim.Anp,1978), affd, 375S,Q.2c1504 (Ala.1979), vacated on other grounds, 448U.S. 903, 100 S.Ct. 3444. 65 L.Ed .2d 1134(1980).We have also held that the trial court's refusal toorder the prosecution , pursuant to a defendant'sdiscovery motion, to provide the criminal record ofeach expected witness for the state was not aviolation of Brady and its progeny . Davis v. State,554 So .2d at 1100."
804 So .2d at 286.
j$j Also, Jackson requested and was granted unlimitedaccess to the confidential mental-health records of all20 witnesses for the State. Allowing unfettered accessto this information was contrary to the decisions of theAlabama Supreme Court in Ex parte Western MentalHealth Center 884 So.2d 835 (Ala.2003), and ExparteRudder 507 So .2d 411 Ala . 1987 . As the AlabamaSupreme Court stated in Ex parte Western MentalHealth Center:
*7 " 'Although Alabama law does not recognize aphysician-patient privilege of confidentiality, thelegislature has adopted a psychotherapist-patientprivilege .' Ex parte United Serv. Stations, Inc.. 628So.2d 501- 50 (Ala.1993 ). The Code section
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adopting this privilege , & 34-26-2. Ala.Code 1975.states, in pertinent part:" '[T]he confidential relations and communicationsbetween licensed psychologists , licensedpsychiatrists , or licensed psychological techniciansand their clients are placed upon the same basis asthose provided by law between attorney and client,and nothing in this chapter shall be construed torequire any such privileged communication to bedisclosed.'"Additionally, '[ i]t is not disputed that ... medicalrecords , created during the psychiatrist -patientrelationship , are included in the confidentialrelationship and are also privileged .' Ex parseRudder, 507 So.2d 411, 413 (-Ala.1987). Thisprivilege, we have held, is strongly rooted in publicpolicy:" ' "[A] psychiatrist must have his patient'sconfidence or he cannot help him. 'The psychiatricpatient confides more utterly than anyone else in theworld. He exposes to the therapist not only what hiswords directly express ; he lays bare his entire self, hisdreams, his fantasies , his sins, and his shame. Mostpatients who undergo psychotherapy know that this iswhat will be expected of them, and that they cannotget help except on that condition .... It would be toomuch to expect them to do so if they knew that allthey say--and all that the psychiatrist learns fromwhat they say--may be revealed to the whole worldfrom a witness stand.' "
'Taylor v. United States. 222 F.2d 398. 401{D.C.Cir.1955), quoting Guttmacher and Weihofen,Psychiatry and The Law (1952), p. 272.'"Rudder. 507 So.2d at 413. Furthermore, themeaning of the Alabama psychotherapist-patientprivilege statue is clear from the plain language ofthestatute itself. See United Serv. Stations, 628 So.2d at504 (citing King v. National Spa & Pool Inst.. 607So.2d 1241. 1246 (Ala.1992))."There are five recognized exceptions to thepsychotherapy-patient privilege. First, '[t]his Courthas recognized an exception to the privilege where,in a child custody matter, the mental state of one ofthe parents is at issue and a proper resolution of childcustody requires disclosure of otherwise privilegedpsychiatric records .' United Serv. Stations , Inc.. 628So-2d at 504 (citing Harbin v. Harbin. 495 So.2d 72,
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74 (Ala.Civ.App.1986)). The Court has alsorecognized another exception where a defendant in acriminal trial raises the defense of insanity. SeeSalmon v. State, 460 So .2d 334, 337(Ala.Crim,App:1984). Additionally, Alabamarecognizes exceptions for communications relevant inproceedings to hospitalize a patient for mental illness,communications made during a court-orderedexamination of the mental or emotional condition ofa party or witness , and communications concerning abreach of duty arising out of thepsychotherapist-patient relationship . Rule 503.Ala.R.Evid."
*8 884 So.2d at840.
1`91[101 Last, the circuit court's ruling erroneouslygranted Jackson unlimited access to juvenile recordsrelated to all 20 witnesses for the State. Discovery ofinformation regarding juveniles is severely limited by 112-15- 100, Ala.Code1975. A defendant is not entitledto unfettered access of privileged documents. In
ayeLchaourt held that the de fen4da t wags ethis C slle
ed tohaventi to
im
the trial court examine in camera privileged records,i.e., the child victim 's psychiatric records and recordsrelating to the child kept by DHR, so that the courtcould determine whether the privilege yielded to thedefendant 's rights of confrontation andcross-examination. See also D.P. v. State, 850 So.2d370 (Ala.Crim.App.2002). Here, the trial courtconducted no in camera examination of the privilegeddocuments.
TV.j 11 j The State also argues that the circuit court erred ingranting discovery ofthe juror questionnaires and otherdocuments related to the jury-selection process.
Jackson alleged in his discovery motion that theinformation on jury selection was necessary to prove hisclaim of juror misconduct and his claim that his trialcounsel rendered ineffective assistance in failing toadequately raise a Batson v. Kentucky. 476 U.S. 79,106S.Ct. 1712. 90 L.Ed.2d 69 (1986), and a J.E.B. v.
, 511 U.S. 127. 114 S.Ct. 1419, 128 L.Ed.2dAlabama89 (1994), objection at trial.
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The State argues that Jackson cannot show good causefor the disclosure of this information because thejuror-misconduct claim is procedurally barred. OnMarch 1, 2004, Judge McCooey dismissed Jackson'sjuror-misconduct claim as procedurally barred based onRule 32.2.2(a)(3) and (a)(5), Ala.R.Crim.P. "If apostconviction claim does not entitle the petitioner torelief, then the petitioner has failed to establish goodcause for the discovery of materials related to thatclaim." Hcjaks; 822 So,2d at 481.
Moreover, the State asserts that this Court on directappeal addressed the Batson and J. E. B. claims and heldthat the claims were without merit; therefore, it argues,there can be no good cause for discovery of documentsrelating to the jury-selection process.
A majority of this Court in Woods v. State, [Ms.CR-02-1959, August 27, 2004] --- So.2d ----, --(Ala.Crim.App.2004), stated:
"Clearly, then, when this court and/or the AlabamaSupreme Court has specifically addressed andrejected a substantive claim on direct appeal, whetherreviewing for plain or preserved error, a petitioner ina Rule 32 proceeding who raises anineffective-assistance claim based on that samesubstantive claim cannot establish prejudice underStrickland"
(Footnote omitted.) The substantive claims related toJackson's ineffective-assistance-of-counsel claims weredetermined on direct appeal to be without merit;therefore, Jackson can show no good cause for thedisclosure of information related to those claims. SeeMack
V.i l2]. The State further argues that the circuit court erredin allowing Jackson access to the bullet recovered fromthe victim's body and the shell casing found in the areawhere the victim was killed, which were introduced atJackson's trial.
*9 Jackson contended in his discovery motion that thisaccess was necessary to support his claim that his trialcounsel had been ineffective for failing to procure afirearm expert who would have testified that theprojectile recovered from the victim's body could have
been fired from either Jackson 's 9mm pistol or the .357pistol belonging to one of his codefendants.
The State contends that Jackson cannot show goodcause for access to these items because the State'sexpert testified at Jackson's trial that the bulletrecovered from the victim could have been fired fromeither a 9mm pistol or a. 357 pistol.
A review of the record of Jackson's trial supports theState's assertion. This evidence was presented atJackson's trial; therefore, Jackson's claim is withoutmerit . Accordingly Jackson can show no good cause forthe disclosure of materials related to this claim. SeeHooks.
VI.13 The State asserts that the circuit court erred in
granting discovery of the jail visitor sign-in sheetsshowing who visited Jackson and his three codefendantswhile they were in jail awaiting trial.
Jackson argued in his discovery motion that theinformation related to his codefendants was necessaryto prove his Brady claim. However, the circuit courtdismissed this claim as procedurally barred; therefore,Jackson can not show good cause for the disclosure ofinformation related to this claim. Hooks, supra.
a 4J Moreover, there was no good cause for disclosingthe jail visitor sign-in sheets for Jackson because thiswas information within Jackson's own knowledge.Certainly, Jackson could inform his Rule 32 counsel ofthe identities of the individuals who visited him whilehe was incarcerated. This information was clearlyavailable through other less intrusive means; therefore,Jackson can show no good cause for disclosinginformation related to this claim. See Ex parte Mack,supra.
VII.15 The State also argues that it was error for the
circuit court to grant access to the records of variousagencies related to Louis Wendell Taylor-- Jackson'sfather. Jackson's discovery motion requested thefollowing:
"Any and all records pertaining to Louis Wendell
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Taylor generated or maintained by the AlabamaDepartment of Corrections, including but not limitedto all intake, assessment, institutional, personal,disciplinary, medical psychological, psychiatric andmental health records, and any other recordsgenerated or maintained by any prison, medicalfacility or provider, or any other entity associatedwith the Alabama Department of Corrections,including but not limited to Holman Prison, KilbyCorrectional Facility, Easterling CorrectionalFacility, Taylor Hardin Secure Medical Facility, andBryce Medical Facility."
The motion also requested records from the DHR andthe Board that pertained to Taylor.
Jackson asserted that this information was necessary toshow that Jackson's father had been either in jail or ondrugs or abusing alcohol during Jackson's earlyyears--proper mitigating evidence, he argues, thatshould have been presented at the penalty phase of hiscapital trial.
*10 The State argues that this information wasavailable through many other sources and that therequested records are not necessary to support thisclaim. It further asserts that "for the above agencies tobe forced to go through twenty or more years of recordsfor such information is unduly burdensome and timeconsuming."
We agree with the State. Clearly, this information wasavailable from Jackson's father and from other familymembers. It was not necessary to grant such intrusivediscovery when this information was available throughmany other sources. See Ex parts Mack (a court mustconsider the burden on the individuals affected by thediscovery motion and the availability of the requestedevidence through other sources when determiningwhether a petitioner has shown good cause for thematerials or information requested).
VIII.H 61 DHR has filed an amicus curiae brief in which it
argues that the circuit court erred in granting Jacksonfull disclosure of its files related to Taylor without firstreviewing those files in camera. It further asserts thatgranting full discovery of its files violates DHR's
statutory obligation to ensure the confidentiality of itsrecords. See & 38-2-1 et seq., Ala.Code 1975. DHRstates in its brief:
"DHR cannot accomplish its duties, including theduty to maintain the confidentiality of our recordsand to disclose information only when theappropriate steps have been taken by our independentlegal staff, when we are left without notice that ourrecords are being sought and when we have noopportunity before an order is entered to provide theCourt with information concerning the lawsgoverning our records."DHR acknowledges that criminal defendants mayobtain access to protected information by establishingthat they have a constitutional entitlement to it basedon due process principles. Access to information onconstitutional grounds is limited to that material andexculpatory evidence which is essential to thefairness of the trial. Before discovery of protectedDHR information may be obtained, however, a courtmust find that the information contains material andexculpatory evidence essential to the fairness of thetrial. ID
(DHR's amicus curiae brief at pp. 8-9.)
According to our holding in Gibson v. State, 677 So.2d233 (Ala.Crim.Ao.1994), the circuit court abused itsdiscretion in allowing Jackson unlimited access toDHR's files. As we stated in Gibson:
"While it is clear that the defendant himself may notperuse the files, this court has said that in cases suchas this one, where neither the parties nor the trialcourt has seen the files requested by the defendant,'[A]n appellant is entitled, upon request, to have thetrial court conduct an in camera review of thevictim's completefile maintained by DHR in order todetermine whether that file contains any exculpatoryinformation.' Coats v. Stat 615 So.2d 1260, 1261(Ala.Crim.App.1992) (emphasis in the original). Seealso Pennsyh'an_ is v. Ritchie, 480 U.S. [391 at 58.107 S.Ct. [9891 at 1001-02 94 L.Ed.2d 4 [ (1987)I.
*11677 So.2d at 236. Clearly, the circuit court shouldhave first reviewed the DHR files in camera beforegranting discovery of those files.
Moreover, the circuit court's order, which allows
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access to the Board 's files, directs the Board to violate15-22-36(h). Ala.Code 1975. The records maintained
by the Board are not subject to inspection. See §15-22-36(bb). Ala.Cod_ e_ 1975 . In Ex parte AlabamaBoard of Pardons & Parolees 814 o.2 870A( 1a,2001), the Alabama Supreme Court stated the
following concerning & 15-22-36(b):"Principles of statutory construction bind this Courtto interpret plain language of a statute 'to meanexactly what it says' and to engage in judicialconstruction only if the language in the statute isambiguous . Exparte Alabama Great Southern RR..788 So .2d 886 . 889 (Ala.2000) , quoting Blue Cross& Blue Shield v. Nielse 714 So.2d 293 , 296Ala.199$ . The Legislature stated in 15-22-36
Ala.Code 1975, with specificity and particularity, that'all other portions of the file shall be privileged.' Aplain reading of the statute indicates that theLegislature created an absolute privilege to provideindividuals and entities an unfettered opportunity toprovide information to the Board , without exposingthe individuals and entities to public scrutiny andpotential retaliation . To hold otherwise , this Courtwould have to engage in improper judicialconstruction.it
"Se tiion 15-22-336(b). Ala.Code 1975, clearly andunambiguously establishes an absolute privilege thatthe Board is legally bound to obey and the circuitcourt is under a duty to uphold."
814 So .2d at 872-73.
17 The State has met its burden of establishing theprerequisites for the issuance of this writ ofmandamus.Staten, Williams, 679 So.2d275(Ala.Crim.App.1996).To grant such broad and unfettered discovery motionsas those granted in this case would result in theexpenditure of great time , resources , and money for allthe affected agencies--over 20 State and non-stateagencies and departments . We can find no other case inwhich the discovery motions were as extensive as themotions filed and granted in this case . A petitioner doesnot have an unlimited and unqualified right to discoveryin a postconviction proceeding . In Land, the SupremeCourt adopted a standard of good cause--it did not electto adopt the broader standards for discovery that arecontained in the Alabama Rules ofCivil Procedure. Our
review of this petition and the exhibits filed with thepetition shows that the majority of the requesteddiscovery was unrelated to the claims raised in the Rule32 petition , was unrelated to the case, and appeared tobe merely an attempt to conduct a fishing expeditionthrough all of the many and varied department andagency files--a good portion of which containprivileged and confidential information.
IX.The State last requests that we take this opportunity to
adopt procedural safeguards for discovery in Rule 32proceedings that will protect nonparties to the litigation.The State in its brief contends:
* 12 "The facts in Jackson illustrate the shortcomingsof current Rule 32 discovery practice and require thisCourt to bring some adversarial testing andsafeguards into the process ; at a minimum to ensurethe 'good cause' standard is being met and thatnonparties receive notice that items held by (orrelating to) them are being sought prior to the entryof a court order."It is time for this Court to apply Rules 37 and 45 ofthe Alabama Rules of Civil Procedure [ 11?N61]--inaddition to the preliminary 'good cause' inquiry--todiscovery in Rule 32 cases. Because the AlabamaRules of Civil Procedure do not apply to Rule 32cases, according to Rule 32.4, this Court must craftthese protections by reviewing the process created inLand, and clarify the legal issues that restrict thediscretion oftrial courts to grant discovery in Rule 32in a published opinion. If this Court does notformally adopt Rules 37 and45 ofthe Alabama Rulesof Civil Procedure, it should, at a minimum, adoptthe safeguards contained therein by requiring noticeto all parties ofthe discovery sought, advanced noticeto the nonparties who will be subjected to therequested discovery order (with an opportunity toappear and be heard through a reasonable waitingperiod), as well as the sanctions provision of Rule45(c) of the Alabama Rules of Civil Procedure,which requires the party seeking discovery to attest totaking 'reasonable steps' to avoid imposing undueburden or expense on those subjected to the everincreasing discovery requests generated in thesecollateral proceedings."
(State's brief at page 27-28.)
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18 This Court has no authority to adopt proceduralrules of court--the sole responsibility for doing so restswith the Alabama Supreme Court. See Ala. Const. of1901, Amend No. 328, § 6.11. We urge that court toaddress the problems exemplified by this case at itsearliest opportunity.
The circuit court clearly erred in issuing the broad andunlimited discovery orders in this case. For theforegoing reasons, this petition is due to be, and ishereby, granted . We issue the writ and direct JudgeMcCooey to vacate her rulings on Jackson's twodiscovery motions.
PETITION GRANTED; WRIT ISSUED; STAYLIFTED.
McMILLAN. P.J., and COBB.BASCHAB, and WISE.JJ., concur; SHAW, J ., concurs in part and concurs inthe result, with opinion.
SHAW. Judge , concurring in part and concurring in theresult.
I concur in Parts I through VIII of the main opinionand I concur in the result reached in the opinion. I donot, however, agree with the rationale in Part IX. As Iunderstand the main opinion, the trial court is directedto vacate its rulings on the two discovery motions andto reconsider Jackson's discovery requests in light oftheapplicable law cited in the opinion and by applying theappropriate "good cause" standard discussed in Erparte Land 775 So.2d 847 (A14.2000), and Er parteMack [Ms. CR-02-034 1, April 25, 2003] --- So.2d ----(Ala.Crim.App.2003).
FN 1. A petition for a writ of mandamus hasbeen used to review issues related to discoveryin Rule 32, Ala.R.Crim.P., petitions. See &parte Land 775 So.2 4 847 (Ala.2000), and Exparse Mach [Ms. CR-02-0341, April 25,2003] --- So.2d ---- (Ala.Crim.App.2003).
FN2. Federal habeas corpus actions filedunder 2$ U.S.C. 2254 are similar to ourRule 32 proceedings . Rule 6(a) of the RulesGoverning & 2254 Cases in the United States
District Courts provides : "A party shall beentitled to invoke the processes of discoveryavailable under the Federal Rules of CivilProcedure if, and to the extent that, the judgein the exercise of his discretion and for goodcause shown grants leave to do so, but nototherwise ." See also Bract/ v. Gramley 520U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97
11997).
FN3. Jackson also requested and was grantedaccess to the district attorney's file on himself.The State does not contest the disclosure ofthis material.
FN4. This Court may take judicial notice of itsown records. See Hull v. State. 607 So.2d 369.371 (Ala.Crim.App.1992 .
FNS. The consequences of this request areenormous . The State presented 20 witnesseswho testified at Jackson's trial. In addition toJackson's three codefendants, the followingpeople testified for the State: the victim's wifeand his mother, five witnesses to the events,five City of Montgomery police officers, threeforensic technicians, a medical examiner, anda City of Montgomery fireman.
FN6. Rule 37, Ala.R.Civ.P., entitled "Failureto Make Discovery; Sanctions" states in part(a): "A party, upon reasonable notice to otherparties and all persons affected thereby, mayapply for an order compelling discovery asfollows ...." Rule 45. Ala.R.Civ.P., addressesthe issuance of subpoenas.
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FIFTEENTH JUDICIAL CIRCUITCIRCUIT COURT
CASE NO. CC-97-2300.60
SHONELLE ANDRE JACKSON,
Petitioner
V.
STATE OF ALABAMA,
Respondent
ORDER
This cause is before the Court upon Order of the Alabama Court of Criminal
Appeals granting the State of Alabama's Petition for Writ of Mandamus and directing this
Court to vacate'its rulings an the Petitioner's discovery motions. Upon consideration of the
same, it is
ORDERED that this Court's rulings on Petitioner Jackson's discovery motions are
hereby vacated and held for naught.
. DONE and ORDERED this the 23rd day of March,
CIRCUIT JUDGE
CC: Alabama Court of Criminal Appeals 3Jeremy McIntire , Office of Attorney General 3
Bryan A . Stevenson & Angela L. Setzer, Equal Justice Initiative of AlabamaOffice of General Counsel, Alabama Department of Human Resources 1V
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IN THE ALABAMA COURT OF CRIMINAL APPEALS
NO.
EX PARTE STATE OF ALABAMA .
IN RE:
SHONELLE ANDRE JACKSON,
PETITIONER,
vs.
STATE OF ALABAMA,
RESPONDENT.
1 PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE TRACY S. MCCOOEY , CIRCUIT JUDGE,FIFTEENTH JUDICIAL CIRCUIT
TROY KING
Attorney General
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And
James R. Houts
ASSITANT ATTORNEY GENERAL
Jeremy McIntireASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
CAPITAL LITIGATION DIVISION
ALABAMA STATE HOUSE
11 SOUTH UNION STREET
MONTGOMERY , ALABAMA 36130
(334) 242--7408
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TABLE OF CONTENTS
TABLE OF CONTENTS .................................... i
INDEX TO EXHIBITS .................................. iii
TABLE OF AUTHORITIES ................................ iv
PETITION FOR WRIT OF MANDAMUS ........................ 1
STATEMENT OF FACTS NECESSARY TO AN UNDERSTANDING OF THEISSUE PRESENTED . ....................................... 1
STATEMENT OF THE ISSUE ............................... 2
Did the trial court err in granting Jackson's
discovery requests without regard for whether
"good cause" had been established? .............. 2
SUMMARY OF ARGUMENT .................................. 2
The Standard of Review for Mandamus .................. 3
ARGUMENT ............................................. 4
I. The Trial Court Abused Its Discretion By GrantingJackson's Discovery Requests Without First
Determining That "Good Cause" Existed As RequiredBy Land And Mack . . . . . . . . . . . . . . . . 4
A.The Trial Court Abused Its Discretion By
Allowing Discovery On Jackson's Brady Claim .. 6
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B.The Trial Court Abused Its Discretion By
Allowing Jackson Access To The Criminal, MentalHealth, And Correctional Records Of All StateWitnesses ...................................... 11
C.The Trial Court Abused Its Discretion By
Allowing Jackson Access To Juror QuestionnairesAnd Other Documents Relating To The Jury And
The Jury Selection Process In Montgomery
County . ..................................... 14
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D.The Trial Court Abused Its Discretion By
Allowing Jackson Access To The Bullet And Shell
Casing Introduced Into Evidence At Trial. ... 16
E.The Trial Court Abused Its Discretion By
Allowing Jackson Access To Any And All Visitor
Sign In Sheets And/Or Logs Of Visitors ToHimself And His Co-Defendants . .............. 17
F.The Trial Court Abused Its Discretion By
Allowing Jackson Access To Any And All Criminal
And Corfectional Records Of His Father, Louis
Wendell Taylor . .................... 19
II. This Court Is Due To Adopt Procedural
Safeguards For The Rule 32 Discovery ProcessThat Will Protect Nonparties To The Litigation.
. .. . . . . . . . . . . . . . . 21
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CONCLUSION .......................................... 30
CERTIFICATE OF SERVICE .............................. 31
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1INDEX TO EXHIBITS
1 EXHIBIT A Jackson's Amended Rule 32 Petition
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EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
EXHIBIT H
EXHIBIT I
EXHIBIT J
EXHIBIT K
EXHIBIT L
State's Answer to Jackson's Amended Rule
32 Petition
State's Motion to Dismiss Procedurally
Barred Claims
State' s Motion to Dismiss InsufficientlyPlead Claims
State's Motion to Dismiss Claims Pursuantto Rule 32.7(d)
Jackson's Motion for Discovery of
Institutional Records, Files, and
Information Necessary to a Fair Rule 32
Evidentiary Hearing
Jackson's Motion for Discovery ofProsecution Files, Records, andInformation Necessary to a Fair Rule 32Evidentiary Hearing
State's Response to Jackson's Motion for
Discovery of Institutional Records,
Files, and Information Necessary to a
Fair Rule 32 Evidentiary Hearing
State' s Response to Jackson's Motion forDiscovery of Prosecution Files, Records,and Information Necessary to a Fair Rule32 Evidentiary Hearing
Jackson' s Response to the State'sOpposition to his Discovery Requests
Transcript of the October 13, 2004Hearing Held On the Parties Motions
Court's Order Of October 13, 2004
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TABLE OF AUTHORITIES
Cases
Barbour v. State, CR-00-1731, 2004 WL 1418383, at *9(Ala. Crim. App. June 25, 2004) ..................... 8
Ex parte Coleman, 728 So. 2d 703(Ala. Crim. App. 1998) ............................. 5
Ex carte Land , 775 So . 2d 847 (Ala. 2000 ) ......... 4, 5
Ex parte Mack , 2003 WL 1950008 (Ala. 2003 ) ... 4, 13, 20
Ex parte State ( Hooks ), 822 So . 2d 476 ...... 15, 18, 29
Ex parte State ( In re: Hooks v . State ), 822 So. 2d 476(Ala. Crim. App . 2000 ) .............................. 8
Ex parte State of Alabama ( Hooks ), CR-99-2212, 2000WL 1496807 ( Ala. Crim . App. Oct . 6, 2000 ) .......... 3
Ex parte Western Mental Health Center, 2003 WL23025579 (Ala. 2003 ) .......................... 13, 27
Head v . Stripling , 590 S.E.2d 122(Ga. 2003 ) ......... 23
Hill v. State, 651 So. 2d 1128(Ala. Crim. App. 1994) ............................ 23
Jackson v. State, 836 So. 2d 915
(Ala. Cram. App. 1999) 16
McGowan v. State, 2003 WL 22928607, at *24(Ala. Crim. App. 2003) ............................ 13
Payne v. State, 791 So. 2d 383,(Ala. Crim. App. 1999) ............................ 12
People ex ref Daley v. Fitzgerald, 526 N.E.2d 131(I11. 1988) .......................................... 6
People ex rel Daley, 526 N.E.2d at 135 .............. 20
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People v . Johnson, 2002 WL 592153, at *14(Iii. 2002) ............................... I 6
Peoples v. State, 531 So. 2d 323(Ala. Crim. App. 1988 ) ............................. 5
Stano v. Butterworth, 51 F.3d 942 (11th Cir. 1995) .. 23
U.S. v. Battle, 264 F . Supp.2d 1088 (N.D. Ga . 2003) .. 23
Wilson v. State, 650 So. 2d 587(Ala. Crim. App . 1994 ) ............................ 10
Woods v. State , 2004 WL 1909291(Ala. Crim. App. Aug. 27, 2004) ................... 14
Statutes
Ala. Code § 12-2-9 (1975) ............................ 3
Ala. Code § 38-2-4 (1975) ........................... 25
Other Authorities
ALA. CONST. 1901, Amend. No. 328, § 6.03 ............... 3
Rule 6 of the Rules Governing Section..2254 Casesin the U.S. District Courts ....................... 29
Rules
Rule 32.7(d) Ala.R.Crim.P . .......................... 15
Rule 21 Ala. R. App. P . .............................. 1
Rule 32 Ala.R.Crim.P . ................................ 1
Rule 32.2, Ala.R.Crim.P . ............................. 8
Rule 45(c) of the Alabama Rules of Civil Procedure -.28
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PETITION FOR WRIT OF MANDAMUS
Comes now the State of Alabama, by and through its
Attorney General, and petitions this Court pursuant to Rule
21 of the Alabama Rules of Appellate Procedure to issue a
writ of mandamus instructing the Honorable Tracy S.
McCooey, Circuit Judge for the Fifteenth Judicial Circuit,
to rescind her order granting post-conviction discovery to
Rule 32 petitioner Shonelle Andre Jackson. In support
thereof, the State asserts as follows:
STATEMENT OF FACTS NECESSARY TO AN
UNDERSTANDING OF THE ISSUE PRESENTED
This matter involves a post-conviction proceeding under
Rule 32 of the Alabama Rules of Criminal Procedure. The
petitioner, Shonelle Andre Jackson, filed his petition for
relief from conviction and sentence of death on July 30,
2003. The State filed its answer to Jackson's Rule 32
petition on October 27, 2003. Jackson filed an amended Rule
32 petition on March 31, 2004. The following day, Jackson
filed two motions for discovery:
1) Motion for Discovery of Prosecution Files,
Records, and Information Necessary to a Fair Rule32 Evidentiary Hearing, and
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2) Motion for Discovery of Institutional Records,
Files, and Information Necessary to a Fair Rule 32Evidentiary Hearing.
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The State filed its answer to the amended petition on May
28, 2004, along with objections to Jackson's motions for
discovery together with motions for summary dismissal of
procedurally barred claims, summary dismissal of claims
pursuant to Rule 32.7(d), and summary dismissal of
insufficiently pleaded claims.
On October 13, 2004, the trial court heard the
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State's motions to dismiss and Jackson's motions for
discovery. Without ruling on the State's pending
motions to dismiss and over the State's objections,
Judge McCooey granted all Jackson's discovery motions.
Judge McCooey then invited the State to seek a writ of
mandamus with this Court to review her decision.
STATEMENT OF THE ISSUE
Did the trial court err in granting Jackson's
discovery requests without regard for whether
. "good cause " had been established?
SUMMARY OF ARGUMENT
The Montgomery County Circuit Court abused its
discretion by granting Jackson's motions for discovery
before resolving the State's assertions of procedural bars
and insufficient pleadings. The circuit court explicitly
violated the holdings of Ex parte Land, 775 So. 2d 847
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(Ala. 2000), and Ex parte Mack, 2003 WL 1950008 (Ala. 2003)
that require that the petitioner first demonsttate "good
cause" before the trial court may grant discovery. Instead,
the trial court granted discovery based on the sole
criterion: "There's no harm in letting the discovery be
done". Additionally, the trial court ignored both the legal
rights and interests of third parties, and increased the
costs of this postconviction proceeding to both the
judicial and executive branches of government.
The Standard of Review for Mandamus
For the writ of mandamus to issue, the State must
establish: (1) a clear legal right to the relief sought;
(2) an imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) no adequate remedy
at law; and, (4) the properly invoked jurisdiction of the
reviewing court. E.g., Ex parte State of Alabama (Hooks),
2000 WL 1496807 (Ala. Crim. App. Oct. 6, 2000). This Court
has original jurisdiction over the issuance and
determination of writs of mandamus in relation to matters
within its jurisdiction. ALA. CONST. 1901, Amend. No. 328, §
6.03. Pursuant to ALA. CODE § 12-2-9, this Court has
exclusive appellate jurisdiction over all felonies, habeas
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corpus matters, and post-conviction writs in criminal
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cases. This Court has often used mandamus as a'method of
reviewing discovery orders granted by a Rule 32 court in
collateral criminal proceedings.
ARGUMENT
1. The Trial Court Abused Its Discretion By GrantingJackson ' s Discovery Requests Without First DeterminingThat "Good Cause" Existed As Required By Land And Mack.
The instant petition for writ of mandamus offers this
Court an opportunity to provide further guidance on an
issue -- discovery in postconviction proceedings -- that
has become increasingly misused, leading to an abuse of the
postconviction process.1 By abusing its discretion below and
granting Jackson's motions for discovery before resolving
the State's assertions of procedural bars and insufficient
pleadings, the circuit court explicitly violated the
holding of Ex arte Land, 775 So. 2d 847 (Ala. 2000), and
Ex Parte Mack, 2003 WL 1950008 (Ala. 2003). By doing so,
the circuit court increased the costs of this
postconviction proceeding to both the judicial and
executive branches of government.
' N.b. The circuit court invited the State to file the instant petition forwrit of mandamus to clarify this issue.
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As this Court noted in Ex parte Coleman, 728 So. 2d 703
(Ala. Crim. App. 1998), its docket is clogged'with
postconviction cases -- 26.6 percent of the Court's 1997-
1998 term docket. In 1988, this Court recognized the flood
of postconviction proceedings that have come to threaten
quick justice. See, Peoples v. State, 531 So. 2d 323 (Ala.
Crim. App. 1988)...Against this backdrop, the Court in Land
limited discovery to appropriate cases while cautioning
against abuse of the postconviction process.
Thus, while holding that trial courts had discretion to
grant discovery in Rule 32 cases, the Court noted:
We caution that postconviction discovery does notprovide a petitioner with a right to "fish"through official files and that it "is not adevice for investigating possible claims, but ameans of vindicating actual claims".
Land, 775 So. 2d at 852. The Court held that a petitioner
had to establish "good cause" based on meritorious claims
in the petition to vest the trial court with discretion to
grant discovery.
More recently, in Ex parte Mack, this Court defined the
five criteria that determine whether a petitioner has
established "good cause" for post-conviction discovery:
'Al
`the issues presented in the petition, the scope of the
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requested discovery, the length of time between the
conviction and post-conviction proceeding, the'burden of
discovery on the State and on any witnesses; and the
availability through other sources."' 2003 WL 195008, at *3
(Ala. Crim. App. Apr. 25, 2003)(quoting People v. Johnson,
2002 WL 592153, at *14 (Ill. 2002)(citing People ex rel
Daley v. Fitzgerald, 526 N.E.2d 131, 135(I11. 1988)). As
shown below, rather than following these criteria, the
trial court granted discovery based on the sole notion
that, "There's no harm in letting the discovery be done,
but there is big harm in not letting it be done." (Exhibit
K at 28)
A. The Trial Court Abused Its Discretion By Allowing
Discovery On Jackson ' s Brady Claim.2
The trial court granted Jackson's motion for access to
the Montgomery County District Attorney's files relating to
the prosecution of not only Jackson, but also his co-
defendants. (Exhibit L) Additionally, the trial court's
order granted Jackson's request for access to any case
2 Due to the page constraints of petitions for writ of mandamus, the State isunable to discuss every item of discovery that the trial court erred ingranting. The State has discussed the most flagrant examples of the trial
court's abuse of its discretion in granting discovery. If, however, thisCourt finds that the trial court did, in fact, grant blanket discoverywithout undertaking the required "good cause" analysis - as shown in theState's argument below - then this Court would have an obligation to vacatethe entire order with instructions for the trial court to reconsider theissues under the correct analysis and use the appropriate principles.
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files related to any prior prosecution of Jackson or his
co-defendants, regardless of whether the prior prosecution
was related to the subject of the current Rule 32
proceeding: Jackson's conviction and death sentence for the
capital murder of LeFraich Moore.3 This discovery request
was reportedly linked to Jackson's allegation in his Rule
32 petition that the State entered into undisclosed deals
with Jackson's co-defendants.
The State asserted that this claim was procedurally
barred, however, in addition to being insufficiently
specific under Rule 32.6(b). (Exhibit B at 63-68) In
pleading this claim, Jackson alleged the following facts:
In this case, the State failed to turn over todefense counsel the evidence of - among otherthings --- deals or agreements that had beenentered into between the prosecution and the co-defendants who testified for the state.
(Exhibit A at 65, 1166) This one sentence represents
Jackson's entire factual pleading of this claim.4 As this
Court noted in Barbour v. State, CR-00-1731, 2004 WL
3 The request for access to all prior prosecutions of Jackson and his co-
defendants was not linked in any manner to his Brady claim. The trial courtabused its discretion in granting discovery concerning unrelated prior
prosecutions that have no relevance in the current proceedings. See Ex parte
Mack, 2003 WL 195008, at *4 n.7 ("Mack has failed to connect the majority of
the requested law-enforcement agency files with his case. Most appear to be
outside of the area where the murder occurred and totally unconnected to thecase. It appears that this motion is merely a `fishing expedition.'").4 Jackson also alleges seven other Brady violations in the same conclusory
manner without any underlying factual basis. (Exhibit A at 66-67, 4 167)
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1418383, at *9 (Ala. Crim. App. June 25, 2004), "[a] Brady
claim is subject to the procedural default grounds
contained in Rule 32.2, Ala.R.Crim.P." According to Rule
32.3, once the State pleads a ground of preclusion, "the
petitioner shall have the burden of disproving its
existence beyond a preponderance of the evidence." Because
the State pleaded"procedural bars in response to this Brady
claim, the grant of the requested discovery was in the face
of an un-rebutted presumption that the claim was
procedurally barred.
Such a ruling also flies in the face of this Court's
holding in Ex parte State (In re: Hooks v. State), 822 So.
2d 476 (Ala. Crim. App. 2000), that discovery was
inappropriate - and mandamus was appropriate -- where the
trial court granted discovery as to procedurally barred
claims in a Rule 32 petition. The trial court was aware of
the existence of Hooks when it issued its ruling.
The trial court's reasons for failing to abide by this
Court's holding in Hooks are disturbing. The trial court
admitted that it would be a fishing expedition, stating
"What is wrong with letting them have the discovery? If
they are on a fishing expedition, then they're not going to
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be able to prove it anyway. I mean they can't create things
that aren't there." (Exhibit K at 24) This line of
reasoning has no basis in the law; instead, it allows the
petitioner to "investigate possible claims" rather than
"vindicating actual claims" as mandated by Land. Such
reasoning allows a trial court to impose burdensome
discovery on the-State with no regard for the law and no
regard for the facts of the case.
The petitioner has not offered any information to ceate
any inference or suspicion that the State decided to
violate the law, the rules governing the practice of law,
and personal standards of morality in deciding to
recklessly pursue a conviction. To grant discovery without
such evidence leaves the clear impression that the courts
of this State will review the actions of Alabama
prosecutors with a more wary eye than they will review the
actions of defendants convicted of capital crimes.5 The
inference that the State would blatantly disregard its
ethical duties is more repugnant in the light of testimony
5 This Court will not presume a capital defendant/petitioner engaged inmisconduct or criminal behavior just because he has a lengthy criminal recordor because he may have a huge incentive to do whatever it takes to gain a newtrial or sentencing proceeding. Why, then, is it permissible for a trialcourt to presume that a prosecutor, who is legally and ethically required toreveal deals with co-defendants, might have violated that duty in the absenceof information that would make such a presumption reasonable?
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at Jackson's trial at which the co-defendants in question
were asked under oath whether they had been given deals or
any consideration in exchange for their testimony. All
replied that they had not and that they were there only to
tell the truth. (R. 299-300, 369-370, 424)
This Court, in Wilson v. State, 650 So. 2d 587 (Ala.
Crim. App. 1994),•'-noted that the failure to plead facts
which would directly contradict facts contained in the
trial record is a sufficient ground on which to deny
relief. In Wilson, this Court wrote:
The appellant has the burden of pleading and
proving by a preponderance of the evidence the
facts necessary to entitle him to relief. Rule32.3. While he states his grounds for relief in
his petition, he fails to set out any facts in
support of those grounds. The petition must
include "full disclosure of the factual basis of
those grounds." Rule 32.6(b). The record of theguilty plea proceeding, which is in the record
before us and of which the trial court could take
judicial notice, clearly refutes the allegationsof the petition. Thus, there being no materialissue of fact before the trial court and therebeing no purpose to be served by further
proceedings, the summary disposition of the
petition as to these allegations was proper.
Id. at 589-590. If this Court has already established that
facts in the record of the conviction being attacked must
be countered by specific factual allegations in a Rule 32
petition to create a material issue of fact, how can it not
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be an abuse of discretion here to grant discovery on a
claim that rests on no factual pleadings in the face of
sworn testimony that vitiates the claim on which the
discovery request was grounded?
For these reasons, this Court should review the
transcript of the October 13, 2004 motions hearing, review
the trial court's.-stated reason for granting discovery as
to this issue, and issue a writ of mandamus to the
Montgomery County Circuit Court ordering that court to
vacate its discovery order.
B. The Trial Court Abused Its Discretion By Allowing
Jackson Access To The Criminal , Mental Health, And
Correctional Records Of All State Witnesses.
The trial court also granted Jackson's request for all
documents relating to any State witness at his trial,
including all criminal records, mental health records,
correctional records, etc. Jackson was granted access to
the following records:
All documents relating to any State witness at
Shonelle Andre Jackson's trial, including: 1) alljuvenile detention, jail, prison, parole,
probation, and pre-sentence investigation records;2) all sentencing reports; 3) all arrest,
conviction, and adult and juvenile criminaloffense records; 4) all records of any law
enforcement authority; including all documents
relating to any plea negotiations between any
State witness and the State; 5) all records of
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any detention or court authority; 6) all recordsof any prosecuting authority; 7) all psychiatric,psychological, and mental health records; 8) alldocuments relating to any lie detector test takenby any State witness; 9) all other records and
reports(.)
(Exhibit G at 7) This boilerplate discovery request was in
no way related to the specific claims in his Rule 32
petition. Jackson stated that he was entitled to this
material pursuant to Rule 16 of the Alabama Rules of
Criminal Procedure. Rule 16, however, does not specifically
apply to post-conviction discovery motions.6 Instead, the
guidelines enunciated in Land and Mack provide the
framework for granting post-conviction discovery motions.
In requesting these records, Jackson did not allege
what they might reveal or how they related to any claims
before the trial court. See Payne v. State, 791 So. 2d 383,
395-96 (Ala. Crim. App. 1999)(stating that, although the
circuit court granted Payne "broad discovery from an
extremely general motion," Payne did not "offer any good
cause as to why the discovery was necessary or exactly what
Payne believed the information he sought to discover would
reveal[.]"). Jackson failed to offer any evidence that such
6 Furthermore, this information does not fall under that available under Rule16's plain language.
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documents were relevant to his claims before the trial
court.
Moreover, the trial court's order is contrary to laws
governing the discovery of third-party records. This Court
has held that "[A] defendant is not entitled to the general
disclosure of the criminal records of the state's
witnesses." McGowan v. State, 2003 WL 22928607, at *24
(Ala. Crim. App. 2003). Likewise, the trial court's order
allowing access to the mental health records of State's
witnesses is not only unsupported by any showing of "good
cause" but violates well-defined doctor-patient privileges.
See Ex ante Western Mental Health Center, 2003 WL 23025579
(Ala. 2003).7 The trial court in this case ordered the
discovery of privileged mental health records of State's
witnesses without good cause and without informing those
witnesses that their personal records were being sought.
By granting Jackson's request, the trial court abused
its discretion and allowed Jackson to conduct a prohibited
"fishing expedition." See Ex parte Mack, 2003 WL 195008, at
*4 n.7. To rememdy this injury, this Court should issue a
7 This case is discussed in greater detail below.
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11 writ of mandamus to the Montgomery County Circuit Court
ordering that court to vacate its discovery order.
C. The Trial Court Abused Its Discretion By AllowingJackson Access To Juror Questionnaires And Other
Documents Relating To The Jury And The Jury SelectionProcess In Montgomery County.
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Jackson was granted discovery of jury questionnaires
and all documents relating to the State's use of peremptory
challenges, the use of racial criteria in the jury
selection process in Montgomery County, and any documents
relating to any communication between the State and any
petit jury member before, during, or after the trial.
(Exhibit G at 7) Jackson alleged that such discovery was
necessary for proving his claims of juror misconduct and
ineffective assistance of counsel for failing to adequately
raise Batson and J.E.B. objections. In granting this
request, the trial court ignored the State's contention
that the juror misconduct claims were procedurally barred
and that the ineffective assistance of counsel claim was
due to be dismissed because the underlying issue was
without merit.
The juror misconduct claims were procedurally barred.
(Exhibit C at 2-3) In Woods v. State, 2004 WL 1909291 (Ala.
Crim. App. Aug. 27, 2004), this Court reiterated the
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principle that juror misconduct claims are subject to the
procedural bars of Rule 32.2 and, once pleaded by the
State, it is the petitioner's burden to disprove their
existence. In Woods, this Court determined the juror
misconduct claims were procedurally barred because the
petitioner failed to provide any facts in his amended
petition that, if°^true, would disprove the existence of the
procedural bars. Jackson failed to include any facts in his
amended petition that, if true, would rebut the presumption
that the claims were procedurally barred. Because the State
pleaded procedural bars in relation to the juror misconduct
claims, the trial court abused its discretion by granting
the requested discovery. The trial court's order violates
this Court's previous holding that discovery is
inappropriate as to procedurally barred claims in a Rule 32
petition. See Hooks, 822 So. 2d 476 (Ala. Crim. App. 2000).
The State also objected to Jackson's discovery requests
because the ineffective trial counsel claim is due to be
dismissed pursuant to Ala. R. Crim. P. 32.7(d). (Exhibit E
at 5) In Woods v. State, this Court reaffirmed its earlier
holdings that "when this court and/or the Alabama Supreme
Court has specifically addressed and rejected a substantive
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claim on direct appeal, whether reviewing for plain or
preserved error, a petitioner in a Rule 32 proceeding who
raises an ineffective-assistance claim based on that same
substantive claim cannot establish prejudice under
Strickland." 2004 WL 1909291, at *13. On direct appeal,
this Court held that no Batson or J.E.B. violations
occurred. Jackson-v. State, 836 So. 2d 915, 946-948 (Ala.
Crim. App. 1999). In his amended petition, Jackson did not
allege any new facts that were not presented to this Court
on direct appeal.
Jackson has not and cannot show "good cause" and the
trial court abused its discretion by granting Jackson
discovery on this claim.
D. The Trial Court Abused Its Discretion By Allowing
Jackson Access To The Bullet And Shell Casing
Introduced Into Evidence At Trial.
1
The trial also granted Jackson's request for access to
the bullet and shell casing introduced at his trial.
Jackson argued in his amended Rule 32 petition that counsel
was ineffective for failing to procure a firearm expert who
could have testified that it was possible that the
"projectile that caused Mr. Moore's death could have been
fired by either the 9 mm gun or'the .357 carried by the co-
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defendants." (Exhibit A at 11-12) The record, however,
demonstrates that trial counsel did present this testimony
to the jury during the cross-examination of the State's
firearm expert, Joe Saloom. On cross-examination, Mr.
Saloom testified that the bullet recovered from Mr. Moore's
body could have been fired from either a 9 mm pistol or
.357 pistol. (R.-506, 508)
Accordingly, the State properly moved to dismiss this
claim because no material issue of law or fact exists which
would entitle Jackson to relief and no purpose would be
served by any further proceedings. (Exhibit E at 4)
Counsel in this case cannot be found ineffective for
failing to introduce evidence or testimony where the record
clearly demonstrates that they introduced that evidence or
testimony. Because Jackson's claim of ineffective
assistance of counsel was shown to be rebutted by the
record, he has not and cannot show "good cause" for access
to the bullet and shell casing. Therefore, the trial court
abused its discretion in granting discovery on this claim.
E. The Trial Court Abused Its Discretion By AllowingJackson Access To Any And All Visitor Sign In SheetsAnd/Or Logs Of Visitors To Himself And His Co-Defendants.
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The trial court also granted Jackson's request for
discovery of all jail visitor sign in sheets and/or logs of
visitors pertaining to Shonelle Andre Jackson, Antonio Dion
Barnes, Eric Orlando Williams, and Christopher Rudolph.
Jackson is not entitled to discovery of sign in sheets and
logs that pertain to him. Jackson knows who has visited him
while he has been' incarcerated. It is unnecessary and
unduly burdensome to the State and correctional
institutions to provide Jackson with a list of his own
visitors.
Jackson is also not entitled to the sign in sheets or
visitor logs pertaining to his co-defendants. Jackson
argues that discovery of this information is necessary to
corroborate his claim that the State entered into a deal
with his co-defendants. As discussed earlier in great
detail, however, the Brady claim upon which Jackson relies
to demonstrate "good cause" for his discovery request is
procedurally barred and insufficiently specific. Thus, the
trial court's order violates this Court's previous holding
that discovery is inappropriate as to procedurally barred
claims in a Rule 32 petition. See Hooks, 822 So. 2d 476
(Ala. Crim. App. 2000).
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F. The Trial Court Abused Its Discretion By AllowingJackson Access To Any And All Criminal AndCorrectional Records Of His Father , Louis WendellTaylor.
Jackson was granted discovery of all records pertaining
to Louis Wendell Taylor generated or maintained by the
Department of Corrections, Montgomery County Sheriff's
Department, Montgomery Police Department, Alabama Board of
Pardons and Paroles, Montgomery City Jail, and the
Montgomery County Detention Facility. Additionally, Jackson
was granted discovery of all records generated or
maintained by any medical provider or contractor for
medical and/or psychiatric services to the Alabama
Department of Corrections. Jackson argued that such
discovery is necessary to establish that his father, Louis
Taylor, was either chronically imprisoned, using drugs and
alcohol, or was simply absent when he was young. Jackson's
discovery request is unduly burdensome and overly broad.
Moreover, Jackson has other available means with which to
prove his allegations concerning his father.°
8 In addition, for the reasons shown below, granting discovery of his father'srecords violates every concept of fairness and due process imaginable.Jackson's father is a nonparty to this case. His privacy rights must standuntil he is given notice that his records are being sought and an opportunityto respond.
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E
In Ex parte Mack, this Court defined five criteria for
determining whether a petitioner has established "good
cause" for post-conviction discovery: "`the issues
presented in the petition, the scope of the requested
discovery, the length of time between the conviction and
post-conviction proceeding, the burden of discovery on the
State and on any witnesses; and the availability through
other sources."' 2003 WL 195008, at *3 (Ala. Crim. App.
Apr. 25, 2003)(quoting Johnson, 2002 WL 592153, at
*14(citing People ex rel Daley, 526 N.E.2d at 135. The
trial court failed to consider these criteria in
determining whether Jackson was entitled to the requested
discovery. In the absence of this determination, Jackson
has not and cannot establish "good cause".
The discovery of Taylor's criminal and correctional
records is unnecessary to demonstrate that he was either on
drugs and alcohol or in prison when Jackson was growing up.
Such information could be obtained easily through the
testimony of Jackson, other family members, or even through
his father, Louis Taylor. In fact, Louis Taylor testified
at the penalty phase of Jackson's trial that he was
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frequently absent from the home and that he was
incarcerated in 1994 and 1995. (R. 572, 574)
For the above state agencies to be forced to go through
twenty or more years of records for such information is
unduly burdensome and time consuming. This information is
available through other means, as demonstrated at his
capital murder trial. Jackson's own father and other family
members can certainly testify to these matters contained in
the requested records. Jackson simply does not need these
records to demonstrate that his father was arrested or in
jail while he was growing up. The trial court abused its
discretion by granting Jackson discovery of Taylor's
criminal and institutional records.
II. This Court Is Due To Adopt Procedural Safeguards ForThe Rule 32 Discovery Process That Will ProtectNonparties To The Litigation.
Although Land established the existence of a trial
court's discretion to grant discovery in Rule 32 cases, it
did so in relation to discovery of items that were in the
possession of the State in its role as a prosecutorial
agency. Since Land, however, Petitioners have increasingly
sought discovery from non-parties and from State agencies
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that cannot be said to be a part of the State in its role
as a prosecutorial agency.
The basis for the discovery process recognized in Land
rests upon the "inherent authority of the trial court."
Land, 775 So. 2d at 852. That authority to order discovery,
to be inherent, must relate to a trial court's authority
over the person or entity from whom discovery is sought.
Where the discovery is sought from a party to the case,
there is no question but that the trial court has inherent
authority and jurisdiction over the parties to the matter
in litigation.
A different situation arises, however, when the
discovery is requested from parties who have not appeared
before the court, have not participated in the matter being
litigated, and have not been formally subjected to the
court's jurisdiction. Accordingly, blanket requests for
discovery from these parties must fail where the existence
of such documents is not known to the prosecutor, the
evidence does not relate to statements made by the
defendant, where reports of examinations or tests were not
prepared in relation to the underlying case forming the
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basis for the postconviction appeal, and where the agencies
involved do not fall under the authority of the prosecutor.
In the Brady context, this Court has held that
knowledge of State agencies not involved in the prosecution
effort is not imputed to the State. See, e.g., Hill v.
State, 651 So. 2d 1128, 1132 (Ala. Crim. App. 1994). Other
jurisdictions have reached similar conclusions when
considering what constitutes "the State" in relation to
Brady claims. See, e.g., Head v. Stripling, 590 S.E.2d 122,
126(Ga. 2003)("Our definition of the prosecution team
responsible for Brady disclosures cannot be a monolithic
view of government that would impute to the prosecutor the
knowledge of persons in state agencies not involved in the
prosecution... Such a wide definition would be unworkable.");
Stano v. Butterworth, 51 F.3d 942, 974 (11th Cir. 1995)
("Brady, then, applies only to information possessed by the
prosecutor or anyone over whom he has authority."); U.S. v.
Battle, 264 F.Supp.2d 1088, 1202 (N.D. Ga. 2003)(Knowledge
of Bureau of Prisons staff not imputed to Department of
Justice prosecutors, even though they all worked under the
umbrella of the Department of Justice. Brady only imputes
knowledge from government offices or officials over whom
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the "prosecutor... has authority."). It is clear, then, that
the State cannot be charged with `possession' of evidence
from non-prosecutorial agencies for purposes of Rule 32
discovery, when the Office of Attorney General (or the
local district attorney in a non-capital case) has no
authority over those agencies and where those agencies have
their own general,'counsel. Because the State (represented
by the Office of Attorney General) has no authority over
the operation of these agencies, the trial court cannot
extend its authority to reach these agencies who are not a
party to the matter before the Court.
Using Brady as a guide, and recognizing that the
Capital Litigation Division of the Office of the Alabama
Attorney General (or the local district attorney in a non-
capital case) has no authority over the activities and
functions of independent state agencies such as the
Department of Mental Health and Mental Retardation, the
Department of Human Resources, and the Board of Pardons and
Paroles, it makes no sense to treat the respondent in a
Rule 32 petition as "the State" for purposes of serving
massive, boilerplate discovery requests in collateral
proceedings. The State, as represented by the prosecutorial
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arm of government, cannot readily determine whether
evidence regarding a petitioner exists at these agencies,
what these agencies' rules and regulations require, or how
each agency's general counsel treats requests for
production in various lawsuits around the State. The
Department of Human Resources, for example, employs
attorneys around the State to deal with such requests for
information and who are familiar with the rules and
regulations imposed by state law and federal law governing
this information which deals with confidential medical
information, juvenile information, or information
concerning alleged instances of abuse or neglect. Ala. Code
§ 38-2-4 (1975). Prosecutors are not equipped to respond
to such requests, and they certainly are not employed in a
position that allows them to learn, in detail, how to
handle such information.
Because Rule 32's discovery process - the "inherent
authority of the trial court" - has no formal rules to
guide the parties, these nonparty agencies are subjected to
the legal fiction that they fall under the supervision of a
local trial court of general jurisdiction without advanced
notice of the discovery sought and without any procedure
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that would allow the Court to bring those parties within
its jurisdiction.
The present petition offers this Court an opportunity
to address an important legal issue: In the light of the
growing demands for discovery made in Rule 32 proceedings
against various agencies and organizations that are not
under the authori-ly of the prosecutorial arm of government,9
how does a trial court guarantee an adversarial testing of
proposed discovery? If the Office of Attorney General or a
district attorney's office is ill-suited to speak on behalf
of an independent state agency or private organization
(represented by their general counsel), how is the "good
cause " requirement of Land best preserved?
For example, in this case Jackson requested, and was
granted, discovery of mental health records concerning
himself, his mother, and every State witness who testified
at his trial.10 The records pertaining to Jackson's mother
and the State' s witnesses are governed by the
9 For example, a prosecutor may not simply demand that DHR turn over documentsfor use at a criminal trial.
10 This discovery request was granted despite the absence of any pleaded factssuggesting that any State witness has any mental health records or hasreceived mental health treatment. Petitioner ' s fishing expedition , however,it not the biggest problem relating to this issue, considering the fact thatthis order was issued without any of the State ' s witnesses ever beingnotified that their records were being sought and without their having achance to appear and contest the issue before the trial court.
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psychotherapist-patient privilege codified in § 34-26-2 of
the Code of Alabama of 1975, which required the Supreme
Court of Alabama to grant a petition for writ of mandamus
vacating an order for production of a plaintiff's mental
health records in Ex parte Western Mental Health Center,
No. 1011990, 2003 WL 23025579 (Ala. Dec. 30, 2003). Unlike
that case, there-is no party to the litigation in this case
that can effectively protect this privilege on behalf of
the nonparties because neither this Court nor the Supreme
Court of Alabama has addressed a realistic way of ensuring
that discovery requests in Rule 32 petitions are subjected
to adversarial testing." The facts in Jackson illustrate
the shortcomings of current Rule 32 discovery practice and
require this Court to bring some adversarial testing and
safeguards into the process; at a minimum to ensure the
"good cause" standard is being met and that nonparties
receive notice that items held by (or relating to) them are
being sought prior to the entry of a court order.
11 There is nothing in the record below indicating that Jackson's mother orthe State' s witnesses have ever waived their right to this privilege, northat they are aware that these records (if any exist) are being sought foruse in this proceeding. The trial court, below, did not even inquire intothis matter during the motions hearing, as the Court granted all discoveryrequests immediately upon hearing arguments concerning the petitioner's Bradyclaim as it related to discovery.
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It is time for this Court to apply Rules 37 and 45 of
the Alabama Rules of Civil Procedure - in addi€ion to the
preliminary "good cause" inquiry -- to discovery in Rule 32
cases. Because the Alabama Rules of Civil Procedure do not
apply to Rule 32 cases, according to Rule 32.4, this Court
must craft these protections by reviewing the process
created in Land, and clarify the legal issues that restrict
the discretion of trial courts to grant discovery in Rule
32 in a published opinion. If this Court does not formally
adopt Rules 37 and 45 of the Alabama Rules of Civil
Procedure, it should, at a minimum, adopt the safeguards
contained therein by requiring notice to all parties of the
discovery sought, advanced notice to the nonparties who
will be subjected to the requested discovery order (with an
opportunity to appear and be heard through a reasonable
waiting period), as well as the sanctions provision of Rule
45(c) of the Alabama Rules of Civil Procedure, which
requires the party seeking discovery to attest to taking
"reasonable steps" to avoid imposing undue burden or
expense on those subjected to the ever increasing discovery
requests generated in these collateral proceedings.'2 This
12 In Land, the Court commented in dicta that requiring State agencies to
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Court should also clarify its earlier ruling in Ex parte
State (Hooks), 822 So. 2d 476, that held the Cburt must
resolve the existence of procedural bars before ordering
discovery. All of these safeguards could be implemented by
adopting a system such as that found in Rule 6 of the Rules
Governing Section 2254 Cases in the U.S. District Courts.
This Court can take judicial notice of prior Rule 32
cases it has considered, as well as those currently before
the Court. A review of the discovery requests commonly
being made by petitioners in these Rule 32 cases clearly
indicates a dire need for guidance about what is and is not
permissible under the guise of Rule 32 discovery. In
Jackson, where an overly burdensome and broad discovery
order was signed by the Court - completely unrelated to
"good cause" shown as evidenced by the trial court's own
admission on the record --- this Court has a duty to act and
correct the mistakes present in this case, and provide
guidance on how to handle requests for discovery from
determine whether records exist "would not unduly burden the State." Land,
775 So. 2d 855. The State invites this Court to seek amici curiae briefs fromthe various agencies most commonly affected by the use of boilerplatediscovery in Rule 32 and seek their opinion as to whether the Court'sspeculation about the effects of subpoena compliance and record review wasaccurate. In a time of budget shortfalls and layoffs, it is unduly burdensometo perform a record search that could be avoided if the party making therequest was subject to sanctions if it were determined that such a requestwas merely part of a "fishing expedition."
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1James R. RoutsAssistant Attorney General
y McIntire
1
entities that are, in reality, nonparties to the collateral
proceeding.
CONCLUSION
The circuit court abused its discretion, explicitly
violating Ex parte Land, and Ex parte Mack. By doing so,
the circuit court ignored the privacy rights and interests
of third parties,.-and also needlessly increased the costs
of this postconviction proceeding to both the judicial and
executive branches of government.
WHEREFORE, the State respectfully requests that this
Court issue a writ of mandamus to the Montgomery County
Circuit Court directing that Court to vacate its order
granting Jackson discovery.
Respectfully submitted,
Troy KingAttorney General
October 20, 2004
Assistant Attorney GeneralCounsel of Record*
State of Alabama
Office of the Attorney General11 South Union Street
Montgomery, AL 36130-0152(334) 353-4014 *
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CERTIFICATE OF SERVICE
I hereby certify that on this 6ath day of October,
2004, I served a copy of the foregoing on counsel for
Petitioner, by placing said copy in the United States Mail,
first class, postage prepaid and addressed as follows:
Bryan A. StevensonAngela L. Setzer
Equal Justice Initiative of Alabama
122 Commerce Street
Montgomery, AL 36104
P"'7 lnu'z W.remy . McIntire
Assistant Attorney GeneralCounsel of Record *
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ADDRESS OF COUNSEL:
Office of the Attorney GeneralCapital Litigation DivisionAlabama State House
11 South Union StreetMontgomery, AL 36130(334) 353-4014 *
31
1IN THE ALABAMA COURT Off'' CRIMINAL APPEALS
NO.
EX PARTE STATE OF ALABAMA.
IN RE:
SHONELLE ANDRE JACKSON,
PETITIONER,
vs.
STATE OF ALABAMA,
RESPONDENT.
EXHIBITS
FOR THE
PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE TRACY S . MCCOOEY, CIRCUIT JUDGE,
FIFTEENTH JUDICIAL CIRCUIT
Volume I of II
TROY KING
Attorney General
1And
James R. Routs'
ASSITANT ATTORNEY GENERAL
Jeremy McIntire
ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
CAPITAL LITIGATION DIVISION
ALABAMA STATE HOUSE
11 SOUTH UNION STREET
MONTGOMERY, ALABAMA 36130
1INDEX TO EXHIBITS
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EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
EXHIBIT H
EXHIBIT I
EXHIBIT J
EXHIBIT K
EXHIBIT L
Jackson's Amended Rule 32 Petition
State's Answer to Jackson's Amended Rule32 Petition
State' s Motion to Dismiss ProcedurallyBarred Claims
State's Motion to Dismiss InsufficientlyPlead Claims
State's Motion to Dismiss Claims Pursuantto Rule 32.7(d)
Jackson's Motion for Discovery of
Institutional Records, Files, and
Information Necessary to a Fair Rule 32Evidentiary Hearing
Jackson's Motion for Discovery of
Prosecution Files, Records, and
Information Necessary to a Fair Rule 32Evidentiary Hearing
State's Response to Jackson's Motion forDiscovery of Institutional Records,
Files, and Information Necessary to aFair Rule 32 Evidentiary Hearing
State's Response to Jackson's Motion for
Discovery of Prosecution Files, Records,
and Information Necessary to a Fair Rule32 Evidentiary Hearing
Jackson's Response to the State's
Opposition to his Discovery Requests
Transcript of the October 13, 2004
Hearing Held On the Parties Motions
Court's Order Of October 13, 2004
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1IN THE FIFTEENTH JUDICIAL CIRCUIT COURT,
MONTGOMERY COUNTY, ALABAMA
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SHONELLE ANDRE JACKSON,
Petitioner,
v.
STATE OF ALABAMA,
Respondent.
AMENDED PETITION FOR RELIEF FROM JUDGMENT PURSUANTTO RULE 32 OF THE ALABAMA RULES OF CRIMINAL PROCEDURE
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Petitioner, SHONELLE ANDRE JACKSON, now incarcerated on death row at
Holman Prison, in Atmore, Alabama, petitions this Court for relief from his
unconstitutionally obtained conviction and sentence of death. In support of this petition, Mr.
Jackson states the following:
PROCEDURAL HISTORY
1. In September, 1997, a Montgomery County grand jury indicted Shonelle
Jackson, who was 18 years old at the time of the crime, on two counts of capital murder and
one count of theft or alternatively receiving stolen property pursuant to sections 13A-5-
40(a)(2), (17), 13A-8-3, and 13A-8-17 of the Alabama Code of 1975 in the death of Lefrick
Moore. (C.7-10.)
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2. Due to Mr. Jackson's inability to afford a lawyer, the Honorable William
Garden, Montgomery County Circuit Judge, appointed attorneys Ben Bruner and Robert
Russell. Jr. to represent Mr. Jackson at his capital trial.
3. The trial court subsequently dismissed the second count of the indictment:
intentional murder while the victim is in a vehicle. (R. 36.) On February 27, 1998, the jury
found Mr . Jackson guilty of one count of capital murder (intentional murder during a
robbery), and one count of theft of property in the first degree. (R. 526.) That same day,
there was a short penalty hearing. After only twenty-five minutes of deliberation, the jury
returned with a 12-0 verdict for life without the possibility of parole. (R. 599.) On July 2,
1998, Judge Gordon rejected the jury ' s unanimous verdict and sentenced Mr. Jackson to
death. (R. 602.)
4. The Alabama Court of Criminal Appeals affirmed Mr. Jackson's conviction
and sentence of death on May 28, 1999. Jackson v. State, 836 So. 2d 915 (Ala. Crim. App.
1999). Mr . Jackson's rehearing application was denied on July 9, 1999.
5. The Alabama Supreme Court granted certiorari review and on May 18, 2001,
remanded the case to the Alabama Court of Criminal Appeals for that court to remand the
case for the trial court to conduct a hearing outside the presence of the jury to determine the
admissibility of Mr. Jackson's statement . Ex parte Jackson, 836 So. 2d 973 (Ala. 2001).
6. A hearing was conducted on October 24, 2001, and the trial court found that
Mr. Jackson's statement was admissible. On February 15, 2002, the Alabama Supreme
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Court issued its opinion affirming Mr. Jackson ' s capital conviction and death sentence. Mr.
Jackson filed an application for rehearing , which was denied by the Alabama Supreme Court
in a substituted opinion on May 10 , 2002 . Ex parte Jackson, 836 So . 2d 979 (Ala. 2002).
7. Mr. Jackson filed a timely petition for writ of certiorari to the United States
Supreme Court on August 8, 2002 . That petition was denied on November 18, 2002.
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Jackson v. Alabama, 123 S. Ct. 582 (2002).
8. This timely petition pursuant to Rule 32 of the Alabama Rules of Criminal
Procedure followed.
GROUNDS SUPPORTING THE PETITION FOR RELIEF'
1. MR. JACKSON WAS DENIED EFFECTIVE ASSISTANCE OFCOUNSEL DURING THE GUILT AND PENALTY PHASES OF HISTRIAL IN VIOLATION OF THE FOURTH, FIFTH , SIXTH, EIGHTH,AND FOURTEENTH AMENDMENTS TO THE UNITED STATESCONSTITUTION.
9. Mr. Jackson ' s trial counsel , Ben Bruner and Robert Russell , Jr., did not render
reasonably effective legal representation during Mr. Jackson 's capital murder trial. See
Wiggins v. Smith , 123 S. Ct. 2527 (2003); Williams v . Taylor, 529 U.S. 362 (2000);
Strickland v. Washington , 466 U.S . 668 (1984 ). This Court should accordingly reverse Mr.
'Many of the issues included in Mr. Jackson ' s petition as substantive errors and as claims ofineffective assistance of counsel rest in part on the same facts . In order to avoid repetition , Petitionerhas developed the facts and law only once , in the sections later in the petition on the substantiveclaims . Because the substantive claims demonstrate why Mr. Jackson would have won on the claim,those sections are also important to the Court' s finding of prejudice on the ineffectiveness issues.Petitioner will point the Court to the discussion below for each relevant claim , and incorporates byreference the substantive issues into the ineffectiveness claims.
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Jackson's conviction and sentence of death.
10. Mr. Jackson's counsel was completely ineffective at all stages of the criminal
proceedings against him. The attorneys representing Mr. Jackson at trial abdicated their
constitutionally mandated responsibility to subject the prosecution 's case to a meaningful
adversarial test. Performance ofMr. Jackson's counsel fell far below "an objective standard
of reasonableness" and failed "to make the adversarial testing process work." Strickland, 466
U.S. at 690. None of the numerous errors made by defense counsel can reasonably be
construed as part of a "sound trial strategy." -1d. at 691
11. The errors made by Mr. Jackson's counsel were so serious as to "undermine
confidence in the outcome," Strickland, 466 U.S. at 694, and Mr. Jackson now seeks relief
from his unconstitutionally obtained conviction and sentence of death. But for defense
counsel's ineffectiveness, there is a reasonable probability that Mr. Jackson would not have
been convicted of capital murder and sentenced to death. See Strickland, 466 U.S. at 694;
Williams, 529 U.S. at 420 (rejecting lower court's holding that "mere" difference in outcome
was not enough to find prejudice under Strickland). This failure of defense counsel denied
Mr. Jackson his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments
of the United States Constitution, the Alabama Constitution, and Alabama State law.
12. Counsel's ineffectiveness was, in part, the product of the grossly insufficient
funds available for defense counsel in capital cases. At the time of Mr. Jackson's trial,
Alabama law provided that court-appointed attorneys in capital cases could not be
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compensated more than $ 1,000 for out-of-court work for each phase of a capital trial, based
on a $20 hourly rate.' See Ala. Code § 15-12-21 (1975) (amended 1999).
14. Accordingly, Mr. Jackson' s counsel received no compensation whatsoever for
out-of-court work in excess of fifty hours, and were compensated at rates far below market
level even for the initial fifty hours . This is simply inadequate given the time required to
adequately represent a capital defendant.'
15. This inadequate and statutorily limited compensation violated the separation
ofpowers doctrine, constituted a taking without just compensation, deprived Mr. Jackson of
effective assistance of counsel , and violated the due process and equal protection clauses.
See Bailey v. State, 424 S.E.2d 503 (S.C. 1992) (stating that capital litigation complexity
required court-appointed attorneys to receive reasonable compensation from state and county
funds); Makemson v. Martin County, 491 So. 2d 1109, 1115 (Fla. 1986) (holding that $3,500
limit on compensation in capital trial violated separation of powers and denied capital
defendants effective assistance of counsel); DeLisio v. Alaska Superior Court, 740 P.2d 437,
443 (Alaska, 1987) (finding that takings clause precludes attorney payment at less than that
2 The Alabama legislature eventually recognized the inadequacies ofthis funding scheme andin 1999, amended the statute to significantly raise the level of funding for court-appointed lawyersin capital cases. See Ala. Code § 15-12-21 (1975) (amended 1999). Unfortunately, this changecame too late to provide Mr. Jackson with adequate funds for his defense.
'The limits that this compensation cap put on the defense counsel was evident at trial: "wehave limited resources in this matter. We tried to use them as best we could.... if I did somethingwrong, I apologize to the Court. But there are a zillion people in this. I can only pay Ron Williama certain amount to go out and see what he can do." (R. 24.)
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"received by the average competent attorney operating on the open market"). "It is wellr
established that the Sixth Amendment guarantees to criminal defendants not only the right
of assistance to counsel, but requires that assistance to be legally effective." Waltho v.
State, 506 So. 2d 273, 275 (Miss. 1987); Strickland v. Washington, 466 U.S. 668 (1984).
16. The failure to provide adequate funding to Mr. Jackson's court-appointed
counsel curtailed this most fundamental right. The limitation on funding was particularly
debilitating in Mr. Jackson' s case , given the ballistics evidence and other evidence presented
and relied upon by the State in obtaining his capital conviction and death sentence.
A. Trial Counsel Was Ineffective During the Guilt Phase of Mr. Jackson'sTrial, and Thereby Deprived Petitioner of his Sixth and FourteenthAmendment Rights.
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17. Mr. Jackson was denied effective legal representation during the guilt phase
of his capital trial. This failure of defense counsel denied Mr. Jackson his rights under the
Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution,
the Alabama Constitution and Alabama law. See Wiggins v. Smith, 123 S. Ct. 2527 (2003);
Williams v. Taylor, 529 U.S. 362 (2000); Strickland v. Washin on, 466 U.S. 668 (1984).
1. Trial Counsel Failed to Adequately Investi ate theState's Capital Murder-Charge against Mr. Jackson
18. Counsel failed to conduct an independent investigation, despite the obvious
weaknesses in the prosecution's case and the ample, and readily available, sources of
exculpatory evidence. In order to effectively prepare for a capital trial, counsel must
investigate every possible avenue of defense, investigate and challenge all assertions by the
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State, and subject the State's case to rigorous examination and testing. See Strickland v.
Washington, 466 U.S. 688 (1984); see. e .g., Code v. Montgomery, 799 F.2d 1481,1483 (11th
Cir. 1986) (finding ineffective assistance of counsel where defense failed to interview all
potential alibi witnesses); Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986) (finding
ineffective assistance of counsel where the defense does "not investigate the prosecution's
case, [and does] not investigate ... defense witnesses"); Neal v. Cabana, 764 F.2d 1173,
1177 (5th Cir. 1985) ("A substantial body of... case law insists... that effective counsel
conduct areeasonable amount of pretrial investigation."); Goodwin v. Balkcom, 684 F.2d 794,
805 (11th Cir. 1982).
19. In this instance, counsel failed to make an independent investigation of the
case, and was thus entirely reliant on the State's version of the events. Counsel only met
with Mr. Jackson on a few occasions prior to trial, and did not adequately establish a
relationship of trust that is essential to adequate representation in a capital case, and is
essential to a full development of a defense theory. Similarly, trial counsel failed to
sufficiently meet with Mr. Jackson's family prior to trial, despite the fact that Mr. Jackson's
mothers and sisters, as well as other family members and friends, possessed information that
would have been helpful to his defense.
20. Trial counsel did not meet or attempt to interview the State's witnesses,
including the officers and investigators charged with investigating Mr. Moore's death, did
not attempt to meet or locate individuals whose testimony would conflict with the testimony
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of the co-defendants in this case, or otherwise undermine the State's presentation of guilt.
These witnesses include but are not limited to: Victoria Moss, Leroy Geary, A.C. Porterfield,
Joe Saloom, Andrew Signore, Latiki Denis Williams and any other witnesses related to Mr.
Moore's death.
21. Critically, trial counsel failed to investigate and interview the "only actual
eyewitness to the shooting," Gerard Burdette . (R. 19.) Mr. Burdette gave a statement on the
night of the crime which identified individuals other than Mr. Jackson as the responsible
parties. His testimony was therefore critical; as defense counsel noted at trial: "[i]f he
testifies to what was in his statement, he could very well exonerate our client." (R. 20.)
Despite the critical importance of this witness, trial counsel did not find or interview him,
and thus was unable to present his testimony. In fact, trial counsel did not even know that
they couldn't find him "until the State told Mr. Bruner that they had issued a subpoena on
him and couldn't find him." (R. 23). As the court acknowledged at trial, "If y'all thought
you needed him - doesn't sound to me like y'all tried to do anything. Coincidentally found
out he was being looked for." (R. 23.)
22. In light of this information, trial counsel filed a motion for a continuance three
days before trial. (C. 83.) This motion was denied by the trial court. See infra issue VII
(incorporated by reference). Mr. Burdette never showed up to trial, (R. 38), and when
defense counsel sought to introduce a tape recording of his statement at trial, counsel learned
that the "tape was never impounded." (R. 38.) By virtue of their failure to find and interview
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this witness, counsel was thus forced to read Mr. Burdette's statement into the record at trial.
(R. 33.)
23. Trial counsel's failure to conduct an independent investigation of Mr. Moore's
death was constitutionally required. Counsel's failure in this regard was particularly
prejudicial in this case, given the circumstantial nature of the evidence. The State relied
primarily on the testimony of the three co-defendants in this case to attempt to prove it's
theory of the case that Mr. Jackson and three other young men were driving around
Montgomery in a stolen car on a Friday night. While driving they passed the victim's car
which one of the co-defendants knew had a good stereo system in it. According to the State,
Mr. Jackson decided that he wanted to steal the stereo system, and a few minutes later,
swerved his car in front of the victim's so that the two cars collided. Shots were fired and
the State's theory is that Mr. Jackson shot and killed the victim.
24. Had counsel conducted a constitutionally adequate investigation of the State's
capital charges against Mr. Jackson, counsel would have been able to present a viable
defense theory as to why Mr. Jackson was not guilty of capital murder because the motive
for the killing was based on the fact that the victim was involved with gang members and was
a drug dealer who was known to sell fake drugs, and thus the killing did not take place during
a robbery.
25. Counsel should have investigated and presented evidence in support of this
theory in response to the State's motion in limine to prevent Mr. Jackson from presenting
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evidence that the killing occurred during a drug deal. This evidence would have included
testimony from witnesses such as Gerard Burdette and the victim's wife, Lacreama Moore.
These witnesses could have established not only that the victim was involved in gang
activity, but that this activity involved selling drugs.'
26. Additionally, had trial counsel investigated and interviewed family members
and friends such as Marilyn Jackson, LaQuanda Jackson, Wanda Jackson, Keisha Young,
Monica Taylor, Julia Taylor, LaTanya Austin and Greg McGee, counsel.would have
uncovered and presented evidence that Shonelle began selling drugs at a very young age as
a "drug gofer" for older men in the neighborhood who were gang members, and that Shonelle
himself was a gang member and was involved in gang activity. Such interviews and
investigation would have also revealed that Mr. Jackson and a co-defendant had previously
been convicted of drug offenses, (R.394, C. 177), and that Mr. Jackson used drugs on the day
of the crime. (C.105, 112, 121, 122.).
27. Had counsel marshaled the evidence of the victim's drug use and gang activity,
as well as Mr. Jackson's history of selling drugs and gang involvement, and alerted the trial
court to this evidence, the trial court would have denied the State's motion in limine, and
allowed counsel to present evidence that the motive for this crime was not robbery, but
instead was a result of a drug deal gone bad. Counsel could then have presented this theory
of defense to the jury both in evidence and argument, and the jury would have not have
'Indeed, counsel was on notice about this as the prosecutor acknowledged that the victim wasa drug dealer. and that his wife could establish his reputation as such. (R. 31.)
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convicted Mr. Jackson of capital murder.
2. Trial Counsel Failed to Procure Necessa Exert Assistance
28. Trial counsel failed to procure the necessary expert assistance needed to
effectively challenge the State' s case . A criminal defendant's right to the benefit of expert
assistance is constitutionally recognized and protected . See Ake v . Oklahoma , 470 U.S. 68
(1985); Griffin v. Illinois, 351 U.S. 12 (1956); Gayle v. State, 591 So. 2d 153 (Ala. Crim.
App. 1991).
29. Counsel was ineffective for failing to procure the assistance of (1) a firearm
and projectile expert ; (2) an expert on identification witnesses ; (3) a mental health expert
and/or social worker ; and (4) an expert on drug and alcohol abuse.
30. A firearm and projectile expert would have assisted trial counsel in
undermining the testimony of the State 's experts that the projectile recovered from Mr.
Moore ' s body was necessarily fired by a .380 gun. (See , e . , R. 502 .) Despite the
conflicting evidence offered by the State , defense counsel , clearly not an expert in the arcane
realm of firearm and projectile examination , endeavored to cross-examine the State ' s expert
without the assistance of a defense expert and failed to present the testimony of its own
expertwitness. An expert would have established that the projectile that caused Mr. Moore's
death could have been fired by either the 9 mm gun or the .357 gun carried by the co-
defendants. (R. 305, 444.) Given that there was no eyewitness testimony as to who was
responsible for the shot that killed Mr. Moore, and the murder weapon was never found, this
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expert testimony then would have allowed counsel to argue that one of the co-defendants was
responsible for Mr. Moore's death and that Mr. Jackson was not the shooter in this case.
31. Such testimony was critical because, as the trial court noted in his sentencing
order, there was evidence that the person with the .357, or Antonio Barnes, was responsible
for the death of Lefrick Moore. (C. 184.) Mr. Jackson was constitutionally entitled to an
expert of firearms and -projectile examination, but trial counsel made no effort to procure
such assistance.'
32. Trial counsel also failed to obtain the assistance of an eyewitness expert. At
Mr. Jackson's trial, the State presented the testimony of Leroy Geary to establish that it was
the person in the driver's side of the silver car - or in the State's version of events, Mr.
Jackson - whose door was open, and who was thus responsible for shooting Mr. Moore. (R.
199.) The State then relied on Mr. Geary's testimony in its closing argument in asking the
jury to convict Mr. Jackson of capital murder. (R. 63.)
33. However, an expert on eyewitness identification would have assisted trial
counsel in establishing that Mr. Geary's testimony was unreliable, and thus showing that Mr.
Jackson was not responsible for Mr. Moore's death. This expert would have explained to the
jury how various factors can alter a witness' perception of the event and make that witness'
account of the event unreliable. The expert would have testified that in this case, various
'Defense counsel did move for additional funds for the "services of a trained scuba diver"to recover the alleged "weapon possessed by the Defendant in this cause." (C. 98.) However,defense counsel never procured the assistance of an expert to assist in this matter.
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factors about the event, such as the short amount of time that Mr. Geary had to view the
event, the fact that the event involved violence, and the circumstances surrounding his
alleged identification, such as the fact that it occurred at 11:00 pm, that the witness was
viewing the incident through a 7 foot chain link fence and across two lanes of traffic (R.
202), and that the street light closest to the event had gone out just prior to this incident (R.
206), in addition to any factors about the witness, such as physical limitations or amount of
stress on the witness, that affected his ability to perceive the event, combined to make the
witness' identification unreliable.
34. Because jurors have a tendency to overestimate the accuracy of eyewitness
identification, an expert could have explained how negative factors impact the accuracy of
the identification, and this would have then aided the jury in assessing the accuracy, and
therefore the credibility, of Mr. Geary's testimony when making their decision.
35. Trial counsel failed to obtain the assistance of an investigator or social worker
to -uncover exculpatory evidence, examine the State's evidence, interview the State's
witnesses and potential defense witnesses, and otherwise assist in the development of a
viable defense. As a result, trial counsel lacked the necessary information to make important
decisions about the defense strategy. This lack of investigation was unreasonable and
prejudiced Mr. Jackson. An investigator and social worker would also have assisted trial
counsel in challenging the admissibility of Mr. Jackson's statements both in front of a judge
and in front of a jury. See paragraphs 56-57.
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3 6. Mr. Jackson's attorneys were also ineffective for failing to obtain a mental
health evaluation of Mr. Jackson, and to also obtain an expert to evaluate Mr. Jackson's
ability to voluntarily waive his rights and give a statement to the police. A mental health
expert could not only assess those aspects of Mr. Jackson's functioning that make him
especially vulnerable to influence by the police, see paragraphs 56-57, but also explain to the
jury how the use of certain interrogation techniques by the police are particularly effective
with people of similar characteristics. Additionally, a mental health expert would have
assisted the court and the jury in evaluating Mr. Jackson's level of understanding by
reporting norms of comprehension of rights of persons of similar age, socioeconomic status
and court experience. This testimony would have been critical to both the judge and the
jury's assessment of the voluntariness of Mr. Jackson's statement in determining how much
weight to give to this statement.
37. In addition, Mr. Jackson's long history of mental, emotional and behavioral
problems, including evidence that he was on drugs on the day of the crime, (C. 105, 112, 121,
122), were more than adequate to serve notice to any reasonably competent counsel that
mental health defects likely played a role in the defense. Counsel's failure to request such
an evaluation was clearly ineffective.
38. But for counsel's failure to procure expert assistance, Mr. Jackson would not
have been convicted of capital murder.
3. Trial Counsel Failed to Effectively Challenge theState's Investigation and Presentation of the Case
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39. Counsel failed to effectively challenge the State's investigation and
presentation of the case. Counsel's ineffectiveness began prior to trial, when counsel failed
to file the Youthful Offender Application ("YOA") in a timely manner. Indeed, it was not
filed until the morning of trial, primarily because counsel was "mistaken as to his age." (R.
33.) Given that Mr. Jackson was just over eighteen at the time of the crime, trial counsel's
failure to timely file a YOA application, which if successful would have prevented him from
being charged capitally, constituted deficient performance, and bespeaks a lack of
constitutionally effective advocacy on behalf of Mr. Jackson.
40. In determining whether youthful offender status is appropriate, the trial court
cannot rely solely on consideration of the nature of the crime charged, but must rely on
additional evidence, including not only prior criminal history, but other relevant factors. In
response to the defense motion in this case, the trial judge merely stated that he would "get
a verbal from the probation officer," because he understood that "he has priors before Judge
Reese, ...." (R. 33.) Counsel should not merely have relied on this minimal investigation,
but should have attempted to present testimony both about the prior crimes, and the
compelling evidence of Mr. Jackson's upbringing, including the lack of a father figure, the
impoverished, violent and unstable environment in which he was brought up, and resulting
gang and drug activity, as well as evidence that Mr. Jackson was immature for his age, and
considered to be a "low achiever," as evidence supporting their motion that Mr. Jackson
would benefit from an informal, confidential and rehabilitative system. Pardue v. State, 566
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So. 2d 502 (Ala. Crim . App. 1990). Had counsel timely filed the YOA application, and
presented relevant evidence to the trial court in support of this motion, the application would
have been granted, and Mr . Jackson would not have been charged with capital murder.
41. Additionally, counsel should have challenged the underlying convictions which
formed the basis for the aggravating circumstance against Mr . Jackson that "the capital
offense was committed by a person under sentence of imprisonment ." (C. 174.) The trial
court found that this aggravating factor was established by the fact that "when Jackson
committed the offense he was on probation on suspended sentences for convictions of
burglary in the second degree and theft of property in the first degree (CC-95-2147-EWR)
and possession of marijuana in the first degree (CC-95-2367-E)NR)." (C. 175.) Counsel
should have challenged the voluntariness of Mr . Jackson ' s guilty pleas in these three cases,
and shown that convictions were unconstitutionally obtained . Had counsel challenged the
underlying convictions , counsel could have then challenged the State's theory that Mr.
Jackson was on parole at the time that he committed this crime . This would have established
that one of the two aggravating factors presented to the jury and relied upon by the trial court
was invalid , and therefore could not form a basis for the sentence of death.
42. Moreover , counsel conceded guilt prior to trial by telling the judge that they
had just had a "come to Jesus with our client yesterday," and thus "we think we know where
the weapon may be located in this case ." (R. 25.) Even the court acknowledged that
counsel's statements would assist Mr. Jackson in getting convicted : "If he wants to start
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helping to convict himself, then that's his prerogative." (R. 26.) After this revelation,
counsel then failed to investigate and present the very exculpatory evidence referred to: "the
weapon that the State alleges committed the crime is not the weapon," which was "not the
weapon that our client had in his possession at the time of the shooting." (R. 26.) Counsel
should not have disclosed to the trial court and sentencing authority evidence that suggests
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that Mr. Jackson was involved in the crime without then providing the court with a theory
or argument as to why Mr. Jackson should not be convicted of capital murder or sentenced
to death based on that information. This constitutes deficient performance that prejudiced
Mr. Jackson.
43. Counsel were ineffective during pretrial proceedings, including during jury
selection. During the voir dire of one of the jury panels, counsel's questioning of the jury
members suggested that it was Mr. Jackson, not the State, who had the burden to prove
innocence beyond a reasonable doubt. (R. 146.) The trial court attempted to caution trial
counsel by alerting counsel to the fact that "You're kind of suggesting that the defendant has
to prove reasonable doubt. I don't think that you meant to say that." (R. 146.)
44. In this case, such a burden shifting instruction to the jury was devastating. The
evidence in this case was entirely circumstantial. The record in this case does not contain
evidence sufficient to establish that a robbery took place during the murder or that Mr.
Jackson was involved in the alleged robbery. Moreover, the absence of any inculpatory
forensic or other physical evidence which connects Mr. Jackson to the crime cases serious
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doubt on the State's prima facie case . (R. 19, 29, 422.)
45. The State's failure to satisfy its burden of proof would have allowed the jury
to acquit Mr. Jackson of capital murder . But for trial counsel ' s burden shifting instruction,
which allowed the jury to believe that it was Mr. Jackson, and not the State, who had the
burden of proof in this case , followed by trial counsel 's failure to present any evidence to
contradict the State's theory of Mr. Jackson's guilt - other than the statement of Gerard
Burdette , which was read into the evidence -- Mr. Jackson would not have been convicted of
capital murder.
46.. Defense counsel's voir dire was desultory and wholly inadequate. In addition,
counsel failed to remove prospective jurors who harbored explicit views that were
antithetical to fairness and impartiality . Counsel failed to secure an expert who could have
helped them conduct an adequate voir dire . Trial counsel 's deficient performance failed to
guarantee Mr. Jackson a fair and impartial jury and therefore , Mr. Jackson should be granted
a new trial.
47. The importance of voir dire in protecting an individual 's constitutional rights
is well established . "[P]art of the guarantee of a defendant 's right to an impartial jury is an
adequate voir dire to identify unqualified jurors." Morgan v. Illinois, 504 U.S. 719, 729
(1992); see also Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) ("Without an
adequate voir dire the trial judge's responsibility to remove prospective jurors who will not
be able impartially to follow the court's instructions and evaluate the evidence, cannot he
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fulfilled."); Dennis v. United States, 339 U.S. 162,171-72 (1950); Morford v. United States,
339 U.S. 258, 259 (1950).
48. Counsel ' s failings during the jury selection continued when counsel failed to
object to the trial court ' s improper decision to grant the State ' s challenges for cause. Counsel
should have marshaled evidence and argued that the record did not adequately demonstrate
that jurors Anderson, Atkins, Coleman, Elsberry and Gray had views which would "prevent
or substantially impair" the performance of their duties as jurors in accordance with
instructions and their oaths. Had counsel appropriately alerted the trial court to this fact, the
trial court would not have granted the State ' s challenges for cause , and Mr . Jackson ' s rights
to a fair and impartial jury would not have been violated . See infra issue XIII (incorporated
by reference).
49. Counsel also failed to adequately object to the prosecutor's use of
discriminatory strikes against the veniremembers. See infra issue X (incorporated by
reference). Mr. Jackson is black. There were 42 prospective jurors on Mr. Jackson's jury
venire, of which 25 were female and 19 were black. The prosecutor had 15 peremptory
strikes, of which he used 8 to remove women and 8 to remove blacks. Counsel should have
more effectively argued that the prosecutor used his peremptory strikes in a discriminatory
manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and challenged the
prosecutor's strikes as a violation of J.E.B. v. Alabama, 511 U.S. 127 (1994). See Eagle v.
Linahan. 279 F.3 d 926 (11 `" Cir. 2001 ) (finding counsel ineffective for failing to adequately
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raise Batson claim). In this case, the trial court refused to find a prima facie case of
discrimination despite the prosecutor 's use of 8 of 15 of his peremptory strikes to remove 8
of the 19 black veniremembers. Additionally, the prosecutor used 8 of 15 peremptory strikes
to remove females.
50. Instead of simply arguing to the judge that the prosecutor struck "six out of
seven [black jurors] in a row," (R. 156), as a basis for a prima facie case , the defense should
have presented evidence and argument to show that, in light of the standards articulated in
Ex Parte Branch, 526 So. 2d 609 (Ala. 1987), the struck jurors were as heterogeneous as the
community as a whole; that there was a lack of meaningful voir dire in this case and that the
District Attorney for Montgomery County has a history of discrimination in jury selection.
See, e .g., Bui v. Haley, 321 F.3d 1304 (11" Cir. 2003) (habeas relief granted where
prosecutor engaged in racially discriminatory jury selection); Ex parte Yelder, 630 So. 2d
107, 109 (Ala. 1992).
51. Based on this evidence, the trial court would have found a prima facie case of
discrimination and forced the prosecution to give race and gender neutral reasons for its
strike. Counsel would then have been able to show that the prosecution was removing jurors
from the venire solely on the basis of race and gender, which is necessarily prejudicial not
only to Mr. Jackson but to the jurors and the entire criminal justice system as well. Trial
counsel's failures during voir dire denied Mr. Jackson the right to a fair trial and impartial
jury.
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52. Mr. Jackson's trial counsel failed to properly challenge the State's investigation
and presentation of its case, failed to adequately cross examine witnesses, failed to object to
irrelevant and prejudicial evidence introduced by the State, and failed to challenge the State's
"expert" testimony. Counsel therefore abdicated its constitutional responsibility to subject
the State's case to adversarial testing, see Strickland v. Washington, 466 U.S. 668 (1984), and
allowed the State to convicted Mr. Jackson solely on the basis of uncorroborated accomplice
testimony. The errors of counsel allowed the State to present considerable evidence that
would otherwise have been suppressed, properly excluded, or discredited by the jury.
53. At Mr. Jackson's trial, the State' s case against Mr. Jackson rested primarily on
the testimony of the three co-defendants: all of whom were themselves indicted for capital
murder, (R. 299, 369, 424), and who all were housed together at the Montgomery County Jail
(R. 17.) Even with the incentive and the opportunity to synchronize their facts, the stories
of these three co-defendants did not match up. Given the circumstantial nature of this case,
the testimony of these witnesses was critical to the State's ability to establish Mr. Jackson's
guilt in this crime. Nonetheless, trial counsel failed to effectively exploit the inconsistencies
in their testimony. (See, e.g. R. 321, 336, 351, 352; 388, 409, 413, 414.)
54. Had trial counsel effectively undermined the testimony of these three co-
defendants, the credibility of this testimony would have been in serious doubt. Without the
testimony of Mr. Barnes, Mr. Williams and Mr. Rudolph, there is no evidence to link Mr.
Jackson to the crime of robbery, and thus no evidence upon which he could have been
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convicted of a capital crime. The other witness testimony and evidence presented by the
State did not corroborate these accomplices or provide the jury with an adequate basis for
finding Mr. Jackson guilty of capital murder. Indeed, the other evidence consisted of
testimony about the victim's death from his wife, a Sylvest Plant worker about the car
collision (though he was unable to identify anyone at the scene of the crime), testimony from
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Ms. Flowers and her daughter about the Buick LeSabre, testimony from members of the
Montgomery Fire Department and Police Department about the crime scene and evidence,
chain of custody testimony and forensic science testimony about the bullets and cause of
death, and finally testimony from the investigating officer about his interviews with the
accomplices and Mr. Jackson. Without this testimony, the jury would not have convicted
Mr. Jackson of capital murder. Trial counsel's failure to adequately cross examine these and
the numerous other witnesses presented by the State constitutes ineffective assistance of
counsel.
55. Counsel was ineffective for failing to conduct an adequate cross-examination
of many State witnesses, including Victoria Moss, Leroy Geary and A.C. Portersfield.
Additionally, counsel failed to effectively cross-examine the State's law enforcement
witnesses about their collection and testing of evidence, as well as their investigation of Mr.
Jackson and other possible suspects. These witnesses include Andrew Signore, Joe Saloom,
James Lauridson, and Stephen Smith. For example, the evidence suggests that there may
have been another individual, a female present, and involved in the death of Mr. Moore.
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However, counsel never spoke with witnesses about this possibility or further investigated
this woman's involvement. Had counsel conducted outside investigation, they would have
established that Mr. Jackson was not guilty of capital murder.
56. Counsel should have challenged the voluntariness of Mr. Jackson's statements
in front of the jury. Although the trial court instructed the jury to consider the voluntariness
of Mr. Jackson 's statement, and furthermore instructed the jury that if the statement was
involuntary , the jurors were to assign no weight to it, (R .75-76), because counsel presented
no evidence or argument as to why the jury should not give the statement much weight, their
performance was defective . Had counsel conducted investigation , counsel could have
evidence about the circumstances of Mr . Jackson ' s interrogation , including the following:
1) Mr. Jackson was questioned alone for four hours by two officers , who visibly displayed
weapons on their duty belts, in an eight by eight windowless room containing several pieces
of furniture , (Supp . R. 22-24); and 2) during this interrogation , Mr. Jackson was seated
approximately one to two feet from one of the officers , (Supp . R. 23-24), he was not
pennitted to eat or smoke , (Supp . R. 24-25 ), he was not told that he could be executed for the
crime with which he was being charged , and a bond was never discussed. (Supp . R. 26, 30.)
57. Additionally , counsel would have clear evidence - as documented in school
records , records from the Department of Corrections, and records from the Department of
Youth Services - that Mr. Jackson suffers from serious mental impairments. As a
consequence of these mental impairments, at the time of the questioning by the police Mr.
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Jackson was an eighteen year old "low achiever," (Supp. C.R.2;, R. 61, 64), who was
susceptible to suggestion, (Supp. R. 62), respectful of his elders, (Supp. R. 67), and eager
to please, (Supp. R. 67). This evidence, if presented to the jury, would have been critical to
both the judge and the jury' s assessment of the voluntariness of Mr. Jackson's statement in
determining how much weight, if any, to give to this statement.
58. Counsel failed to effectively investigate and challenge the testimony of the
state experts with regard to the ballistics evidence. For example, the State's expert could not
conclusively testify that the bullet recovered from Mr. Moore came from the shell casing
found at the scene, or that either of these were necessarily fired from the gun that Mr.
Jackson was alleged to have been carrying, a gun that was never recovered or presented as
evidence. (R.504.) Trial counsel failed to effectively take advantage of this gap in the
State's evidence and use it to show that Mr. Jackson was not responsible for Mr. Moore's
death. Had counsel effectively cross examined the experts with regard to ballistics evidence,
and presented expert testimony establishing not only that the bullet may not have come from
the gun that Mr. Jackson was alleged to have been carrying, but that it could have just as
easily come from the guns carried by the co-defendants on that night, counsel could have
argued that Mr. Jackson was not guilty of capital murder, and on this basis urged the jury to
acquit him of this charge.
59. Counsel was ineffective for failing to object to irrelevant and prejudicial
evidence introduced by the State. This evidence included prejudicial pictures of the victim
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after he was killed. (R. 191.) Additionally, during the testimony of Stephen Smith, the State
introduced a video of the crime scene . (R. 259.) These prejudicial and inflammatory
photographs and videos seriously prejudiced Mr. Jackson, and counsel should have objected
to them on that basis.d See infra issue XII (incorporated by reference). Counsel also failed
to object to the trial court ' s improper admission of evidence that did not have a proper chain
of custody. (R. 499-500.) See infra issue XIV (incorporated by reference). The
presentation of this evidence seriously prejudiced Mr. Jackson as this evidence inflamed and
prejudiced the jury and accordingly undermined the reliability of Mr. Jackson's conviction
and sentence of death. This failure constituted ineffective assistance of counsel.
60. In addition to failing to contest the State's theory of events , trial counsel failed
to present a viable theory of defense. During opening argument , counsel simply referred to
the State's burden of proof, and reminded the jury to consider the bias of the co-defendants
when assessing the reliability of their statements . (R. 168-73.) At no point did trial counsel
set forth a viable theory of defense that would have allowed the jury to acquit Mr. Jackson
of capital murder.
61. After the State had rested , counsel then failed to present any witnesses, save
for the statement of Gerard Burdette, which was read into the transcript by the two defense
attorneys. (R. 33.) Trial counsel presented no other witnesses, and failed to marshal
'Attorney Russell initially objected to the admission of the video "until after we have seenit," but was reminded by his co-counsel attorney Bruner. that he "had seen it." It was then admitted.(R. 259.)
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evidence in support of a conviction of less than capital murder. As articulated earlier, counsel
should have presented evidence, in the form of witnesses including Gerard Burdette,
Lacreama Moore, and family members and friends such as Marilyn Jackson, LaQuanda
Jackson, Wanda Jackson, Keisha Young, Monica Taylor, Julia Taylor, and Greg McGee, that
this crime involved drug and gang activity, and not a robbery. See paragraphs 24-27. Had
counsel presented this evidence and argument , the jury would not have convicted Mr.
Jackson of capital murder.
62. Trial counsel ' s closing statement was similarly inadequate . After the State had
an opportunity to rebut Mr . Burdette 's statement, defense counsel then presented a closing
argument in which counsel once again reminded the jury of the burden of proof, pointed out
the inconsistencies in the co-defendant ' s statements and argued that the facts and the story
"ought to tell you and give you a gut feeling that the State has proven its case beyond a
reasonable doubt ." (R. 88.) Mr . Jackson ' s counsel failed entirely in argument to advocate
on his behalf. See Herring v. New York, 422 U. S. 853 ( 1975) (" ... no aspect of such
advocacy could be more important than the opportunity finally to marshal the evidence for
each side before submission of the case to judgment.").
63. Had counsel appropriately investigated the case , they would have presented
evidence that Mr . Jackson was not guilty of capital murder because there was no robbery
involved, but instead it was a case of a drug deal gone bad. On this basis, counsel could have
then presented argument, both in opening and closing , that, in contrast to the State's tlheonl,
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of events, Mr. Jackson was not guilty of capital murder. Had this evidence and argument
been presented, the jury would not have found Mr. Jackson guilty of capital murder.
64. Counsel should have additionally argued that the evidence showed that the
bullet recovered from Mr. Moore's body did not necessarily come from the gun that Mr.
Jackson was allegedly carrying, and that it was just as likely that it was one of the co-
defendants who was responsible for Mr. Moore's death. Had counsel presented this evidence
and made these arguments, the jury would have likely acquitted him of capital murder and/or
the judge would have not sentenced him to death based on his minor participation in the
crime . This constitutes ineffective assistance of counsel.
65. Counsel failure to ensure a complete appellate record by ensuring that a
transcription of all proceedings in this were accurately transcribed. At numerous points
during the trial, either the State or the trial court requested that the discussions be off the
record. (See e.g R. 250, 368, 530.) It is absolutely essential that capital sentences be
reviewed on a complete record. See Dobbs v. Zant, 506 U.S. 357, 358 (1993) (reversing
capital conviction where the Court of Appeals refused to consider the sentencing hearing
transcript); see also Gardner v. Florida, 430 U.S. 349 (1977) (plurality opinion) (emphasizing
importance of reviewing capital sentences on a complete record); Gregg v. Geor ia, 428 U.S.
153, 167 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (Georgia's capital
sentencing provision requiring transmittal on appeal of complete transcript and record is
important "safeguard against arbitrariness and caprice.") Counsel's failure to ensure an
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accurate and complete record in this case constitutes ineffective assistance of counsel
because it precluded the appellate courts from reviewing the entire record in determining the
validity of Mr. Jackson ' s capital conviction and sentence of death , and was therefore
prejudicial to Mr. Jackson.
4. Trial Counsel Failed to Request and Failed taT__ObJect to the Trial Court's Fa ilure to Instruct the
Ju` on the Lesser Included Offense of Robbe
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66. Although the State's evidence showed that the victim was killed and that the
victim 's car was stolen , the State's evidence also showed that the car was stolen only as an
"afterthought" and that the robbery was thus a separate crime from the murder. The trial
court ' s failure to ensure that the trial courtproperly instructed the jury on the lesser included
offense of robbery, by first requesting and then objecting to the trial court's failure to do so,
constitutes ineffective assistance of counsel that prejudiced Mr. Jackson . See infra issue VI
(incorporated by reference).
5. Trial Counsel Failed to Ob'ect when the TrialCourt Im ro erl Left the Courtroom While theJu Watched Mr. Jackson's VideotapedStatement.
67. During Mr. Jackson' s capital trial , while the jury watched Mr. Jackson's
videotaped statement , the trial judge stopped the video and told the jury that it was "not
important for [his] purposes to see it," and because the trial judge had "some other things to
do," the judge left the courtroom. (R. 524.) Subsequently. the court reporter instructed the
jury before they left for the day. (R. 525.) This was improper, and trial counsel's failure to
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object to this constitutes ineffective assistance of counsel . See infra, issue VIII ( incorporated
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by reference).
6. Trial Counsel Failed to Object to the Trial Court'sImproper Instruction on Reasonable Doubt
68. During the guilt phase of Mr. Jackson's trial, the trial court improperly
instructed the jury on.reasonable doubt , which lowered the State ' s burden of proof, in
violation of Mr . Jackson's state and federal constitutional rights . Trial court ' s failure to
ensure that the jury was properly instructed constitutes ineffective assistance of counsel. See
infra, issue XI (incorporated by reference).
7. Trial Counsel Failed to Ensure that the Jurorswere Properly Instructed about the Accom pliceCorroboration Requirement
69. The most significant weakness in the State 's case against Mr. Jackson was the
failure to adequately prove the element of robbery, the very element which elevated this
crime to capital murder . Critically , the State ' s robbery case rested on the testimony of three
accomplices , individuals who themselves were indicted for the same crime of capital murder,
individuals who all hoped to gain something by testifying, and individuals who were housed
together in the Montgomery County Jail prior to trial. While the contradictions in their
testimony are apparent , what is even more apparent is that this testimony with respect to
robbery remained wholly uncorroborated by any other evidence.
70. Though trial counsel moved for a judgment of acquittal on this basis , the trial
court erroneously pennitted the State to rely on this uncorroborated testimony to gain a
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conviction against Mr. Jackson. Trial counsel did not, however, move the trial court to
properly instruct the inrorc about the accomnlice corroboration reainirenient . Trial counsel's
performance in this regard was deficient. See infra, issue IX (incorporated by reference).
But for counsel's failure, the jury would not have convicted Mr. Jackson of capital murder.
8. The Cumulative Effect of Counsel's PerfonnanceDenied Mr. Jackson his Ri ht to EffectiveAssistance of Counsel at the Guilt Phase of HisCapital Trial
71. These errors denied Mr. Jackson the effective assistance of counsel in violation
of the Alabama Constitution, and the Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution. See United States v. Chronic, 466 U.S. 648, 659 (1984). Daniel
v. Thigpen, 742 F. Supp. 1535, 1561 (M.D. Ala. 1990). But for counsel's deficient
performance, Mr. Jackson would not have been convicted of capital murder and sentenced
to death. Strickland v. Washington, 466 U.S. 668 (1984); Williams v. Tamer, 529 U.S. 362
(2000).
B. Trial Counsel Was Ineffective During the Penalty andSentencing Phases of Mr. Jackson's Trial Thus Resulting inthe Unjust and Unconstitutional Imposition of the DeathPenalty.
72. Mr. Jackson's trial counsel was ineffective during the penalty phase of the trial
and at the judicial sentencing hearing. Though the jury returned a unanimous life verdict in
less than an hour, as a result of trial counsel's ineffectiveness, the trial judge nonetheless
overrode this verdict and sentenced Mr. Jackson to death. Despite numerous mitigating
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factors that exist in this case -- both statutory and non -statutory - trial counsel put forth very
little evidence at the penalty phase of the trial. Sonya Ringstaff , Mr. Jackson's girlfriend,
testified that Mr . Jackson was not violent , truthful, and "an understanding, nice young man."
(R. 564.) The testimony of Marilyn Jackson, Mr. Jackson's mother, covered only two and
a half pages of transcript , and included a plea to the jury to "spare my son's life ," as he was
her "only son." (R. 567-68.) The combined testimony of these witnesses, which only lasted
long enough to fill fifteen pages of transcript, constituted the entirety of Mr. Jackson's
penalty phase evidentiary presentation and did not even begin to explain the complexities of
Mr. Jackson ' s character , his mental and emotional impairments , his troubled upbringing and
his familial history of alcohol and drug abuse. More critically, after this minimal
presentation of evidence to the jury, trial counsel failed to proffer any additional evidence
at the judicial sentencing phase ; indeed counsel barely made an argument as to why Mr.
Jackson should be sentenced to life without the possibility of parole.
73. Trial counsel ' s representation of Mr . Jackson at the penalty phase and judicial
sentencing hearing of his capital trial was inadequate and denied Mr. Jackson a fair
sentencing phase determination as required under the Fifth , Sixth, Eighth , and Fourteenth
Amendments to the United States Constitution, the Alabama Constitution, and Alabama law.
Wiggins v. Smith. 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000); Strickland
v. Washinn, 466 U.S. 668 (1984).
1. Trial Counsel Failed to Investi ate and Present even aPortion of the Available Mitigation Evidence During the
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Penalty Phase and Sentencing ffi^ari.n
74. In a capital case , trial counsel has the constitutional duty to fully investigate
and prepare for the penalty phase of the trial. Wiggins, 123 S. Ct. at 2541-42 ("counsel's
investigation into Wiggins ' background did not reflect reasonable professional judgment,"
and constituted ineffective assistance of counsel ); Williams, 529 U.S. at 396 (counsel has an
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obligation to conduct a thorough investigation into defendant ' s background ; failure to do so
constituted ineffective assistance of counsel); Strickland, 466 U.S. at 690-91(counsel has a
duty to investigate at the penalty phase of a capital trial). The trial court and the jury must
consider "any aspect of the defendant's character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence less than death." Lockett v.
Ohio, 438 U.S. 586, 604 (1978). Thus, trial counsel "has a duty to conduct a reasonable
investigation, including an investigation of the defendant's background, for possible
mitigating evidence." Porter v. Sin_letarv, 14 F.3d 554, 557 (11th Cir. 1994).
75. Trial counsel should have obtained complete and accurate information
regarding Mr. Jackson's family and social history, educational history, medical history,
mental health history, employment and training history, prior adult and juvenile correctional
experiences, and any community, religious and cultural influences. See Wi ins, 123 S. Ct.
at 2537 (citing the American Bar Association, Guidelines for the Appointment and
Performance of Counsel in Death Penal Cases, 11.8.6, p.133 (1989), as "guides to
determining what is reasonable" conduct in capital defense work).
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76. Trial counsel in Mr. Jackson' s case failed to meet these minimum
requirements. Thus, it is necessary to find that defense counsel was ineffective in their
penalty phase representation of Mr. Jackson. See Wig gins , 123 S. Ct. at 2542 (counsel
ineffective for failing to investigate and present evidence of client's "troubled history"
including abuse, neglectful parenting and diminished mental capacities); Williams, 529 U.S.
at 395-96 (counsel ineffective for failing to thoroughly investigate and present evidence of
client's "nightmarish childhood," including parental neglect, abuse, and evidence that
defendant was "borderline mentally retarded" and did not advance beyond the sixth grade in
school); Brownlee v. Haley, 306 F.3d 1043, 1070 (11`" Or. 2002) (counsel's failure to
investigate, obtain, or present the "powerful mitigating evidence of [defendant]'s borderline
mental retardation, psychiatric disorders, and history of drug and alcohol abuse"constituted
ineffective assistance of counsel); Harris v. Dugger, 874 F.2d 756 (11th Cir. 1989) (finding
counsel ineffective in penalty phase because of lack of investigation into family background
and other mitigating evidence).
77. Trial counsel in Mr. Jackson's case did not conduct the minimally adequate
investigation needed for effective penalty phase representation. Trial counsel made no effort
to interview Mr. Jackson's family members regarding available mitigating evidence. Mr.
Jackson has numerous family members and friends, including sisters, Laquanda Jackson and
Wanda Jackson; two half-sisters, Dmitri Gaston and Keisha Gaston; a grandmother, Della
Jackson; a grandfather, Tommy Taylor; aunts, Joyce Harvest, and Geraldine Taylor; a great
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aunt. Betty Brawlin; uncles, Freddie Owens, Donald Collins, and Roosevelt Emerson, Jr.; and
cousins, Christopher Harvest, Corey Taylor, Julia Taylor, Monica Taylor, Shantay Taylor,
Chakka Harvest, Decarlos Harvest, Micky Harvest, Michael Harvest, Detrick Collins, and
Gary Collins, who were not interviewed or asked to testify. Most of these individuals were
living in and around Montgomery , Alabama at the time of the trial and were readily available
to be interviewed regarding mitigating evidence . In fact, many of these family members
were present at the trial and were ready to testify regarding mitigating evidence. This
constitutes deficient performance.
78. The fact that trial counsel called some witnesses to the stand during the penalty
phase does not render their performance effective . If trial counsel 's purpose was to bring out
the humanity and character of Mr. Jackson by having these witnesses testify, this intention
"stands in stark contrast to the presentation that actually took place." Collier v._Tur, Din, 177
F.3d 1184 , 1200 (11th Cir. 1999). Trial counsel's examination of these witnesses was
perfunctory, deficient, and prejudicial.
79. Marilyn Jackson, Louis Taylor, Thelma Owens, and Sonya Ringstaff were not
able to present a compelling picture of Mr. Jackson or give the information about Shonelle
Jackson that they wanted to give; nor were they prepared by trial counsel for their testimony.
Trial counsel failed to meet with any of these witnesses prior to the morning their testimony
was delivered. None of them understood the nature of their testimony. Effective trial
counsel would have explained to these witnesses the critical importance of presenting a
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narrative of Mr. Jackson's life to the judge and jury in order to show them Mr. Jackson's
humanity.
80. Moreover, trial counsel failed to elicit any testimony regarding compelling
mitigating evidence in this case , including , inter alia: Mr . Jackson ' s lack of a father figure
or other male role remodel, his religious influences and experiences, his devotion to family
members, and his impoverished childhood characterized by illicit drugs , alcohol, and the
continuous threat of random destructive violence. That counsel failed to talk with these
witnesses and prepare them for their testimony is evident from the witnesses ' testimony at
trial. For example, Marilyn Jackson, Mr. Jackson's mother, was asked by trial counsel to
"tell me about his upbringing and his school life." (R . 567.) In response, Ms. Jackson's
response was simply that "he went to school . He went as far as the ninth grade in school."
(R. 567. ) Trial counsel ' s "minimal questioning of[Ms. Jackson] resulted in the jury ' s being
deprived of substantial mitigating evidence regarding [Mr. Jackson]." Cunningham v. Zant,
928 F.2d 1006, 1017 (11th Cir. 1991). This evidence of Mr. Jackson's childhood could also
have been presented by the numerous family members who had contact with Mr. Jackson
throughout these years, including those individuals listed above.
81. Mr. Jackson also has numerous friends, including James McGee, Keisha
Young, A.C. Williams, Marshal Woods, Samuella McMillian, Sonya Ringstaff, and Latrice
Walker, and other community members, including Rick Cotton, Latanya Austin, and Eddie
Woods, who were available as sources of mitigating evidence related to Mr. Jackson's family
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and social history, employment history , medical history, and mental health history . None of
these people were contacted by trial counsel; had they been contacted, they would have been
willing and able to present testimony about Mr . Jackson's childhood, including testimony
about the violence , poverty, drugs, and alcohol that characterized the household in which Mr.
Jackson was raised.
82. Indeed, communication with Mr. Jackson's family and friends was so lacking,
they were unaware of the trial court's power to override the jury's 12-0 life recommendation.
Family and friends who attended the trial were relieved when they heard the jury's
recommendation for life . Because trial counsel never explained the process through which
Mr. Jackson would be sentenced, family and friends believed the jury's life recommendation
was the final adjudication in Mr. Jackson' s case . They were shocked and horrified when they
learned, not through Mr. Jackson's attorneys, but through a co-worker of Thelma Owens that
Shonelle was actually sentenced to death. Upon hearing this news on the radio , the co-
worker informed Mrs. Owens who then called Marilyn Jackson. Ms. Jackson was left with
the task of circulating this information among Shonelle ' s friends and family. Had trial
counsel met with Mr. Jackson's family and friends, they would have understood that the trial
court had the power to sentence Mr. Jackson to death, and would have been able to provide
compelling testimony to persuade the sentencing authority that a sentence of life without
possibility of parole was appropriate in this case.
83. In addition to defense counsel's failure to contact people who would offer
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useful mitigation evidence, counsel failed to procure necessary records documenting Mr.
Jackson's life. These records include education records, housing records, mental and
physical health records, employment records, correctional records, and religious records of
both Mr. Jackson and his parents and siblings. These records would have been particularly
important, as they would have corroborated the testimony that should have been adduced by
family members and friends regarding Mr. Jackson's childhood.
84. Had trial counsel obtained these records and interviewed even a portion of the
potential witnesses who were willing to testify for Mr. Jackson, trial counsel would have
easily uncovered a vast amount of mitigating evidence. This evidence would have
illuminated Mr. Jackson's childhood for the court, and revealed that he was raised in a house
characterized by neglect, absent or disabled parental figures, poverty, rampant drug and
alcohol abuse, and a constant threat of violence.
85. A reasonable investigation would have uncovered evidence of Mr. Jackson's
unstable homelife. Interviews with family members, including Geraldine Taylor, Julia
Taylor, Monica Taylor, Joyce Harvest, and Thelma Owens, and medical records would have
revealed that Mr. Jackson's parents were heavy drug users, and the fact that Mr. Jackson's
mother was using drugs, including crack and smoking marijuana, both before Mr. Jackson's
birth and during his early childhood. His parents use of crack and marijuana not only created
an unstable homelife, but contributed to Mr. Jackson's impaired mental and emotional
development.
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86. Mr . Jackson ' s parents, Marilyn Jackson and Louis Taylor , had serious drug
addiction problems throughout Mr. Jackson's childhood. Thelma Owens, Geraldine Taylor,
Julia Taylor, Monica Taylor, and Joyce Harvest would have testified that as a consequence
of this drug use, not only was desperately needed family money diverted to purchasing drugs,
but the children were exposed to a host of people continuously coming in and out of their
home to use illicit drugs.
87. Members of the community were well aware of Marilyn and Louis' drug use.
Indeed, the level of their use, and their concomitant disability as parents was so severe that
testimony would have revealed that children at school often teased Shonelle about Marilyn
and Louis ' drug abuse problem.
88. In Mr. Jackson's impoverished household, this drug abuse created further
financial instability . Marilyn Jackson was on welfare and barely able to feed her children,
yet nonetheless diverted much of her money to supporting her drug use. In fact , Marilyn
Jackson often sold the family's food stamps in exchange for cash so she could support her
drug habit.
89. As a result of his parents' drug use, Shonelle's childhood was marked by
extreme instability, absence of a father figure, violence, drugs, and alcohol. The testimony
of family members and friends, including Joyce Harvest, Marilyn Jackson, Laquanda
Jackson, Wanda Jackson, Geraldine Taylor, Monica Taylor, Thelma Owens, and Keisha
Young, as well as court and correctional records, would have established that Mr. Jackson's
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father, Louis Taylor, was chronically imprisoned when Shonelle was young , and even when
not incarcerated , was usually either using drugs and alcohol or was simply absent. Mr.
Jackson ' s father was constantly in legal trouble , in large part because of his drug use and
alcoholism ; family members and friends would have testified that as a result he did not
provide any support for Mr. Jackson.
90. Court records indicate that Louis Taylor was arrested no less than thirteen times
before 1997. In fact, at the time Shonelle Jackson allegedly committed this offense, he was
receiving no guidance or support from his father because, as Louis Taylor would have
testified , he was in jail at the time.
91. His father ' s pervasive absence was exacerbated by a complete lack of rnale
adult role models in Mr. Jackson's childhood and youth. Thelma Owens would have
testified, for example, that Shonelle attempted to fill this void by spending time with his
uncle Freddie Owens, but that Mr. Owens was not able to make up for the absence of stable
male role models within Shonelle 's household.
92. Family and friends, including Joyce Harvest, Thelma Owens, and Geraldine
Taylor would have testified that the only other male relative in Mr. Jackson's life - their
brother, Roosevelt Emerson, Jr. -- was not around much while Mr. Jackson was growing up
because he was either in the military or jail . As a result, as Shonelle got older , he began to
fill the void left by his father and uncles with older peers who engaged in illegal and violent
behavior.
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93. As a consequence of his parents' drug use and his father ' s absence , records and
testimony from family and community members would establish that Mr. Jackson and his
siblings suffered from neglect ; they grew up in an impoverished home and were not properly
cared for. Family members, such as Della Jackson, Geraldine Taylor, Joyce Harvest, and
Thelma Owens would have testified that Shonelle and his siblings were not properly clothed
and fed by their parents ,- and that they attempted to make up for these failings by providing
the children with food and clothing.
94. All of the aforementioned family members would have testified to the
impoverished conditions Mr. Jackson ' s family endured . Because Marilyn Jackson was
unable to provide her children with necessities , Wanda and Laquanda Jackson would have
testified that they were often forced to acquire nourishment from various sources outside the
home, including neighbors, the First Baptist Church and the Trenholm Court Community
Center.
95. Relatives, such as Thelma Owens and Della Jackson, who were aware of
Marilyn Jackson's desperate financial situation, would have testified that they knew the
children were receiving inadequate care and therefore often dropped off basic necessities,
such as food and clothing.
96. Marilyn Jackson would have testified that as a result of Louis Taylor's sporadic
presence she was forced to provide for all three of her children on her own. Despite working
long hours, including double shifts lasting from 6:00 a.m. until 10:00 p.m., Ms. Jackson was
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unable to support adequately her children. Consequently, the Jacksbn family was forced to
live in public housing, which was plagued by violence, drugs, and prostitution.
97. Because his family did not have enough money to eat, Mr. Jackson's mother
often asked him to borrow food, such as sugar , flour, and bread , from neighbors. It was
approximately at this time that Shonelle began to steal things , and eventually became a gofer
for older drug dealers established in the public housing development . His sisters and mother
would have testified that while their father was absent , Shonelle tried his hardest to help
support the family by selling drugs and obtaining money so he could buy clothes and other
necessities.
98. Geraldine Taylor, Monica Taylor, Julia Taylor, Laquanda Jackson, Wanda
Jackson , and Marilyn Jackson also would have testified regarding the Jackson's desperate
financial situation . Each of them would have informed the court and the jury that, at one
point, after Shonelle and his family had been kicked out of their home, they were forced to
live with Shonelle's aunt, Geraldine Taylor. The home was cramped because Ms. Taylor was
not only housing the four members of the Jackson family, but her own family as well. The
Jackson family changed residences on no less than six occasions during Mr . Jackson's
childhood and early teenage years.
99. This unstable life caused great trauma to Mr. Jackson, as is reflected in school
records which, had they been obtained by trial counsel, would have established that in
elementary school. Mr. Jackson was missing school on a regular basis, and that by an early
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age he had begun acting out at school and getting into fights with other kids. Records would
have established that by the time that he was thirteen, Mr. Jackson had been suspended from
school numerous times and had been expelled twice.
100. In addition to a life of instability, and the resulting emotional trauma, Mr.
Jackson has consistently struggled with diminished mental capacity . Education records and
juvenile court records as well as testimony from relatives such as Thelma Owens and
teachers such as Rosalyn Jordan would confirm his borderline intellectual functioning.
101. Indeed, Thelma Owens would have testified that her family has a history of
mental deficiencies , including Marilyn Jackson ' s biological brother who is mentally retarded.
Moreover, Ms. Jackson suffers from her own mental impairments for which she received
specialized training as a youth.
102. Unlike the specialized training received by his mother, Shonelle Jackson
received no meaningful parental supervision and , therefore, he continually struggled in
school. Had counsel acquired Mr. Jackson's school records, they would have learned that
he failed two grades and the only years he consistently received grades in the B range or
above were those in which he was taking courses for the second time. Indeed, Shonelle
severely struggled in school until the ninth grade when he dropped out.
103. Soon thereafter, as documented by Department of Youth Services records, it
was determined that Shonelle was in the lowest twelve percent of sixteen year olds in terms
of intellectual functioning. As a result, he was recommended for special education services.
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104. While average intellectual functioning children also require a certain degree
of attention , family members, such as Della Jackson , Joyce Harvest, Geraldine Taylor,
Monica Taylor, and Thelma Owens, would have testified that between the drugs, lack of
financial support from Louis Taylor, and Marilyn Jackson's brutal work schedule, Shonelle
never received even the minimal amount of academic attention one would devote to an
average functioning child . Consequently , he certainly did not receive the type of specialized
and individual attention needed to compensate for his impaired intellectual capacity.
105. Moreover, Ms. Jackson's own mental impairments prevented her from
providing appropriate and meaningful guidance to Shonelle. In this regard , Mr. Jackson had
no one to whom he could turn. Family members, including Geraldine Taylor and Thelma
Owens, would have testified that along with his already diminished mental capacity , Shonelle
was never required or even encouraged to attend school by his parents.
106. As a consequence of Mr. Jackson ' s mental and emotional impairments,
individuals such as Rosalyn Jordan and Thelma Owens would have testified that he was not
as mature as other kids , that he could be easily swayed by others, and that he was unusually
vulnerable to peer pressure. In addition, his Department of Youth Services records indicated
that he had difficultly with negative peer influence.
107. Despite his susceptibility to peer pressure, testimony from family members,
including Della Jackson, Dmitri Gatson, Monica Harvest, Joyce Harvest, Geraldine Taylor,
and other community members, such as Latanya Austin, Rick Cotton, and his teacher,
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Rosalyn Jordan , would have established that Mr. Jackson has always been eager to please and
incredibly respectful towards members of society.
108. Eddie Woods and other members ofhe Trenholm Court Community, amongst
others, would have testified that Shonelle occasionally performed yard work for them.
Indeed, Shonelle has always been a hard worker who has always done well in structured
environments , such as correctional facilities.
109. As a result of his family's desperate financial situation , Shonelle grew up in
a neighborhood that was plagued by rampant drug use and accompanying violence.
110. Latanya Austin would have testified that during the developmental stage of
Shonelle's life, the neighborhood in which Shonelle grew up was infiltrated by crack-
cocaine . She would have testified that by the mid-1980s Shonelle was living' in a
neighborhood where crack was rampant and by the early - 1990s gun shots were heard on a
regular basis.
111. Indeed, Shonelle's psychological intake report from the Department of Youth
Services reveal that violence deeply touched Shonelle ' s life . At the age of fifteen, Shonelle
had one friend who died after being kidnaped and another who was murdered while being
robbed.
112. Shonelle's exposure to violence did not stop at his front door; rather, he was
continually exposed to violent activity at the hands of family members. At a very early age,
Shonelle's father, Louis Taylor, carried a knife on his person most places he went. Louis
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Taylor, was often involved in violent altercations and court records would have revealed that
on one occasion he was arrested for fighting with a police officer. Louis and Geraldine
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Taylor would have testified that on another occasion, Louis Taylor returned home with a gun
shot wound. A panicked and disturbed Geraldine Taylor began to cry when she recognized
that Louis had been shot.
113. Nor was Louis Taylor the only parent prone to violence. Marilyn Jackson and
Louis Taylor fought physically on a regular basis. Laquanda and Wanda Jackson would have
testified that every few days Marilyn Jackson and Louis Taylor became physically violent
with one another. In one particular incident, Marilyn stomped on Louis as he lay on the
ground . Thelma Owens would have testified that Marilyn often had welts , bruises , and knots
caused by Louis during their frequent fights.
114. Violence and the threat ofviolence was pervasive during Shonelle's childhood.
Often it was promulgated by his parents. For example, Geraldine Taylor, Laquanda Jackson,
Wanda Jackson, Marilyn Jackson, and Julia Taylor would have testified that Shonelle
witnessed his aunt threaten his uncle Louis with being shot when he refused to leave the
apartment on one occasion . It was in this environment of a ready resort to violence or a
threat of violence in which Nlr. Jackson grew up.
115. Nor did Marilyn Jackson and Louis Taylor spare their children violent
treatment. Laquanda and Wanda Jackson would have testified that their mother often gave
them whoopings for engaging in childish activity. Unlike his sisters, Shonelle was rarely if
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ever whooped by his mother; instead, he was thrashed by his father. Roosevelt Emerson, Jr.
would have testified Shonelle was repeatedly beaten by his father with an electric cord,
which resulted in whip marks on his arms and legs.
116. Laquanda and Wanda Jackson would have testified that the discipline affected
the children in such a way that they eventually began to engage in a routine of disciplining
each other when they had engaged in activity they thought was unacceptable.
117. Asa form of discipline, when Shonelle was young, his father and uncles would
wrestle with him as if he was an adult, often causing extreme pain and injury. Shonelle's
father would often come home drunk and physically fight or wrestle with Shonelle. These
confrontations, fueled by alcohol and drugs, were even more violent than usual.
118. Marilyn Jackson, Louis Taylor, Laquanda Jackson, Wanda Jackson, Thelma
Owens, Geraldine Taylor, Della Jackson, Julia Taylor, Monica Taylor, and Joyce Harvest
would have testified that due at least in part to his violent behavior, Louis Taylor was often
absent from the home. His sporadic presence was attributable to periodic arrests resulting
in incarceration and fights with Marilyn that led to short periods of separation.
119. Shonelle tried to fill the void left by his father by protecting his sisters and
buying his family things; however, Mr. Jackson was never able to fill the gap left by his
father's absence in his own life. Due to a confluence of factors, including his father's
absence and violence, Shonelle began socializing with individuals much older than he, and
who were regularly engaged in violent and illegal activity. His family members and friends,
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including Wanda Jackson and Keisha Young, would have testified that Shonelle joined a
gang, which included much older young men than he, when he was a teenager.
120. Eddie Woods would have testified that Shonelle spent a considerable amount
of time at his house, socializing with his children. Mr. Woods' children include Marshall
(Bay-Bay), Tyronne, and Eddie. Latanya Austin, Eddie Woods, Laquanda Jackson, Monica
Taylor, and Wanda Jackson would have testified that Shonelle was also close with Eddie
Woods' grandson, Antwain Rainer ("Cornbread"). At the time Shonelle was fifteen,
Antwain Rainer was eighteen and Marshall Woods was twenty-two.
121. Lacking a responsible male role model, Shonelle instead turned to these
individuals, as well as another individual, Tollie Redmon, who were somewhat older than
Shonelle. Neither Antwain nor Marshall were capable of providing an appropriate role
model; instead, they provided just the opposite. Monica Taylor, Laquanda Jackson, Wanda
Jackson, and Latanya Austin would have shown that Marshall and Antwain consistently
engaged in violent and illegal activity.
122. Given his pervasive exposure to violence and criminal activity, it is not
surprising that by the age of twelve, Shonelle had already acquired a gun. In addition, Mr.
Jackson began using drugs and alcohol at a very young age. Records from the Department
of Youth Services indicate that by the time that he was thirteen, Shonelle had been diagnosed
as alcohol dependent. This substance abuse was consistent throughout his life up to the time
that he was arrested for this crime. In addition to using drugs and alcohol, Dmitri Gaston,
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Laquanda Jackson, Wanda Jackson, Julia Taylor, Monica Taylor, and Keisha Young would
have testified that Shonelle became a gofer for these older gang members , selling crack and
other drugs , to make money for both himself and his family.
123. Much of the money he made selling drugs , he used to provide his sisters and
mother with necessities. Laquanda Jackson, Marilyn Jackson, Wanda Jackson, Keisha
Young, and Monica Taylor would have testified that Shonelle primarily used this money to
provide for his family. In fact, Shonelle never owned a car himself nor did he ever acquire
his own residence , but instead biked around the neighborhood.
124. Mr. Jackson's familial devotion was not limited to his immediate family.-
Dmitri Gaston, Julia Taylor, Monica Harvest, Laquanda Jackson, Wanda Jackson, Della
Jackson, Joyce Harvest, Geraldine Taylor, Betty Brawlin, Freddie Owens, Donald Collins,
Christopher Harvest, Shantay Harvest, Chakka Harvest, Decarlos Harvest, Julia Taylor,
Monica Taylor, Gary Collins, Detrick Collins, and Sonya Ringstaff all would have testified
that Shonelle loved all of them and he was well-loved by them. In addition, Laquanda
Jackson, Marilyn Jackson, Wanda Jackson, and Sonya Ringstaff would have testified that he
loves his daughter, Zekia Jackson.
125. Mr. Jackson spent a great deal of time with his family growing up. Mr.
Jackson's sisters would have testified that three of them spent an exceptional amount of time
together. Marilyn Jackson's trust of her son resulted in Laquanda and Wanda being
prohibited from leaving the house without Shonelle. Despite the age difference, Mr. Jackson
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brought his sisters to church, the community center, and the jubilees.
126. Had counsel acquired Mr. Jackson's records they would have showed that
individuals outside Mr. Jackson's family often detected his desire to provide for loved ones
and members of the community. This was confirmed by Department of Youth Services'
records.
127. Mr. Jackson's familial devotion extended beyond his immediate family to his
half-sister, cousins, aunts, and grandmothers. Growing up, Mr. Jackson spent a great deal
of time with his half-sister, cousins, and grandmothers. Shonelle spent many weekends
playing sports with his cousin, Christoper Harvest, and neighbors at his grandmother's house.
Older relatives, including Betty Brawlin, Joyce Harvest, Geraldine Taylor, and Thelma
Owens, found Shonelle respectful and well-mannered. Moreover, he was willing to lend a
helping hand when chores needed to be done. His half-sister, Dmitri, would have testified
that despite being a few years older than Shonelle, he tried to look out for her by steering her
away from nightly hangouts he knew were unsafe.
128. Such devotion extended beyond Mr. Jackson's family to other significant
persons in his life. Latrice Walker would have testified that Mr. Jackson was different from
most young men who grew up in Trenholm Court. Rather, he was respectful and considerate.
She would have recalled times when Mr. Jackson inquired into her well-being by asking after
a long day whether she had enough to eat.
129. Evidence would have also established that Mr. Jackson is well loved by those
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who know him. He has always played and continues to play an important role in his family,
and make emotional contributions to his family members, including his grandmother, aunts,
parents, siblings and his daughter. Had counsel conducted a reasonable investigation, they
would have presented testimony revealing Mr. Jackson's dedication to his family.
130. Moreover, Mr. Jackson's sense of community and spirit manifested itself
through his religious activities. Had trial counsel spoken with members of Mr. Jackson's
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family, they would have learned that Mr. Jackson attended church regularly when he was
young. Della Jackson would have testified that as a child, she used to bring him and his
sisters to church on a regular basis. Similarly, Mr. Jackson's cousins, Monica Harvest,
Christopher Harvest, Decarlos Harvest, and Chakka Harvest would have testified that
Shonelle was very close with his father's mother and they too attended church together often.
In addition, Thelma Owens would have testified that Shonelle and his sisters att ended church
with her every other weekend.
131. Nor was his religious devotion forced. Laquanda and Wanda Jackson would
have testified that when extended family members could not pick them up to attend services,
Shonelle and his sisters would walk to the local, First Baptist Church. Mr. Jackson's sisters
and members of the First Baptist Church, such as Deacon Beasley, would have testified that
Shonelle and his sisters were baptized during his pre-teen years.
132. Despite the vast amount of readily available mitigating evidence available
related to Mr. Jackson's family history, medical history, criminal history, correctional history,
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educational history and good character , trial counsel failed to adequately prepare and present
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this evidence at either the penalty or judicial sentencing phases of Mr. Jackson's trial. Had
this evidence been presented , Mr. Jackson would have been sentenced to life without
possibility ofparole. Their performance was clearly deficient and prejudicial to Mr. Jackson.
See Wiggins, 123 S. Ct. at 2543 ( Court assessed the totality of the evidence to determine that
"had the jury been confronted with this considerable mitigating evidence , there is a
reasonable probability that it would have returned with a different sentence "); Williams,
529 U.S . at 420 (stating that prejudice determination must rest on assessment of the totality
of omitted and presented evidence rather than on idea that one piece of omitted evidence
must require a new hearing); see also Collier v. Turnip, 177 F.3d 1184 (11th Cir. 1999)
(citing counsel ' s failure to present the available evidence of defendant's upbringing,
compassion , his poverty, and gentle disposition in holding counsel ' s performance
ineffective); Harris v. Duaaer, 874 F.2d 756 (11th Cir. 1989) (finding counsel's performance
ineffective and stating that jury knew little about defendant including the fact that family
members described defendant as a devoted father , husband, and brother).
133. In Mr. Jackson's case, there was a reasonable probability that but for trial
counsel's deficient performance in failing to present all the available mitigating evidence,
the judge would not have imposed a sentence of death. See Williams, 529 U.S. at 419
(stating that fundamental unfairness to the defendant does not need to be found, rather a
reasonable probability of a difference in outcome is sufficient to establish constitutionally
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ineffective assistance of counsel).
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134. The failure to present character evidence and evidence unrelated to
dangerousness was extremely prejudicial . Such evidence "may alter the jury's selection of
penalty, even if it does not undermine or rebut the prosecution ' s death-eligibility case."
Williams, 529 U.S. at 421. If the court does not acknowledge this possibility, the court fails
"to accord appropriate weight to the body of mitigation evidence available to trial counsel."
Td. (stating that even if found mitigating evidence did not overcome finding of future
dangerousness , evidence of mental health and deprived childhood "might well have
influenced the jury ' s appraisal of [defendant 's] moral culpability").
135. As a result of trial counsel's deficient performance, Mr. Jackson was
prejudiced as the judge and the jury failed to consider "the information needed to properly
focus on the particularized characteristics of this petitioner." Armstrong v. Duaer, 833 F.2d
1430, 1433 (1 lth Cir. 1987); see Collier v. Tu in, 177 F.3d 1184 (11th Cir. 1999) (finding
defendant prejudiced despite presence of several aggravating factors due to chance that jury
confronted with contrast between defendant's acts on day of the crime and his history would
not have voted for the death sentence); Harris v. Dug er, 874 F.2d 756 (11th Cir. 1989);
Johnson v. Kemp, 615 F. Supp. 355 (N.D. Ga. 1985).
2. Trial Counsel Failed to Develop and Present aPenal and Sentencin g Phase Strategy toConvince the Sentencing Authority that Lifewithout Parole was the A ro riate Sentence inthis Case.
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136. Because trial counsel had not conducted a constitutionally adequate
investigation of the circumstances of Mr . Jackson 's life, they failed to failed to develop a
defense to the death penalty . Trial counsel ' s lack of penalty phase strategy is apparent from
the record.' At the conclusion of the guilt phase , trial counsel moved for a continuance
because they intended to call probation officer Carolyn Flack as witness , but because "she
wouldn 't come in voluntarily ," and because trial counsel had failed to anticipate the
possibility of a penalty phase trial, she had not been subpoened and so she was not present
in the courtroom . In assessing whether to grant a continuance , the trial court conducted an
exparte hearing with the District Attorney - agreed to by defense counsel - in which the trial
court agreed with the District Attorney's statement that defense counsel had "known all
along , Judge , about this ," and expressed his frustration with trial counsel : "I couldn ' t agree
with you more . I'm so mad I could chew nails ." (R. 530.)8
137. Trial counsel ' s opening and closing arguments at the penalty phase, as well as
counsel's argument at the judicial sentencing hearing, were constitutionally deficient and
prejudicial . See Dobbs v. Turnip, 142 F.3d 1383, 1389 (11th Cir. 1998) (citing Penryy.
'Indeed , counsel did not even know how many jurors were required to impose a sentence oflife without parole . When discussing jury instructions , trial counsel expressed surprise at the numberof jurors needed : "Seven jurors , your honor? I always thought it was ten." (R. 578.)
'Only part of this hearing is on the record . At some point, the trial court states , "[l]et's gooff the record," and nothing else about their conversation is recorded . (R. 532.) Because defensecounsel declined to be involved in this hearing, and failed to ensure the presence of his client at allof these hearings , defense counsel did not have the opportunity to object to any improper decisions,or to effectively advocate on his client ' s behalf.
5.3
L nau h, 492 U.S. 302, 316 (1989)). At the judicial sentencing hearing, trial counsel's
argument covered less than three pages in the transcript and consisted primarily of defense
counsel's explanation that the jury's recommendation should be given "great weight." (R.
58.)
138. Trial counsel then failed to present any additional evidence to the judge, instead
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informing the trial court that "most of the other argument that we would have on this case
has been included either in our proposed findings on what the court has heard at the penalty
phase hearing and I don't think there is any use in my going over that." (R. 11.)
139. Given that the sentencing authority --under Alabama law - was authorized to
reject the jury's verdict, trial counsel needed to marshal and present the mitigating evidence
of Mr. Jackson's violent upbringing, impoverished community, lack of a father figure or
other male remodel , mental impairments , religious influences and experiences , and familial
devotion in order to persuade the sentencing authority that the jury had reached the correct
decision when they unanimously sentenced Mr. Jackson to life without the possibility of
parole. Counsel should have then argued to both the jury and the judge that these compelling
mitigating circumstances constituted a basis for the imposition of a sentence of life without
the possibility of parole. Counsel's failure in this regard constitutes ineffective assistance
of counsel.
3. Trial Counsel Failed to Obtain and PresentIndependent Exert Witnesses at the Sentencinand Penal Phases of Mr. Jackson's Trial
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140. Trial counsel also failed to obtain and present independent expert witnesses at
the sentencing phase of Mr. Jackson's trial. Expert witnesses such as a social worker, an
investigator, and a mental health expert would have explained the likely causes of Mr.
Jackson's mental and emotional problems and how those problems were relevant both to Mr.
Jackson's defense and to his moral culpability.
141. An investigator "who has received specialized training [would have been]
indispensible [in] discovering and developing the facts [that would have been] unearthed at
trial. . . ." American Bar Association, Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases, Commentary to Guideline 4.1 (2003). As an attorney's
expertise does not extend to the area of investigation and his time is more wisely used when
focusing on the legal research, this expert would have devoted the due amount of time to
thoroughly researching and discovering all relevant mitigating evidence relating to Mr.
Jackson's life. Id.
142. A social worker or mitigation specialist would have synthesized and evaluated
the significance of the information obtained by the investigator. By compiling a psycho-
social history of Mr. Jackson, such an expert would have "analyzed the significance of the
information in terms of impact on development, including effect on [Mr. Jackson's]
personality and behavior." Id. Had a social worker or mitigation specialist been called, he
or she would have explained to the judge and the jury the multiple risk factors present in
Shonelle's life and how they affected his actions and development.
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143. A mental health expert would have gathered information relating to Mr.
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Jackson ' s familial history of mental impairments and his stunted mental and academic
development. Such an expert would then have explained the significance of Mr. Jackson's
mental impairments and the multiple ways in which they affected his life, including,
particularly, how these limitations would have rendered Mr. Jackson particularly ill-equipped
to overcome the milieu of poverty, drugs, alcohol, neglect, and violence in which Mr.
Jackson grew up.
144. An expert on drug and alcohol abuse would have testified about Mr. Jackson's
lifelong battle with alcohol and substance abuse and how his use of drugs and alcohol
impaired his mental state . This expert would have also assisted counsel in recognizing the
importance of finding , developing , and presenting evidence regarding Mr. Jackson's drug
use and alcohol abuse , as well as that of his parents and other role models . This expert could
then have synthesized this evidence for the jury and the court, and would have elucidated
how these factors resulted in an impaired and suggestible individual.
145. Trial counsel ' s failure to obtain and present independent expert witnesses at
the sentencing phase constituted deficient perfonnance that prejudiced Mr. Jackson. Such
evidence would have made it clear to both the jury and judge and that appropriate
punishment for Mr. Jackson was life without the possibility of parole. But for counsel's
deficient performance, the outcome of Mr. Jackson's trial would have been different and he
would not have been sentenced to death.
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146. Trial counsel's failure to investigate and present a compelling empathetic
portrait of Mr. Jackson to the jury and judge constitutes ineffectiveness. This performance
cannot be characterized as strategic. By failing to present a full picture of Mr. Jackson to the
jury and trial court, trial counsel "precipitated a breakdown in the adversarial process" and
violated Mr. Jackson's constitutional rights under state and federal law. Collier, 177 F.3d
at 1204. Mr. Jackson has a right, "indeed a constitutionally protected right to provide the
jury with the mitigating evidence that his trial counsel either failed to discover or failed to
offer." Williams, 529 U.S. at 420. Therefore, Mr. Jackson ' s death sentence must be
reversed.
4. Trial Counsel were Ineffective for Failing to Object tothe Method of Execution in Alabama as Cruel andUnusual Punishment
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147. Trial counsel was ineffective for failing to challenge the method of execution
used by the State of Alabama. Trial counsel failed to marshal evidence which reveals that
under the evolving standard of decency, Alabama's method of execution constitutes cruel and
unusual punishment. See, infra, issue XVII (incorporated by reference).
5. Trial Counsel Were Ineffective for Failin toObject to the Double Counting, of Robbery as anElement of the Ca ital Offense and as anAggravating Circumstance
148. Trial counsel failed to object to the double counting of robbery as both an
element of the capital offense and as an aggravating circumstance used to sentence Mr.
Jackson to death. See Gregg v. Georgia, 428 U.S. 153 (1976). Such error failed to narrow
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the class of cases eligible for the death penalty and exposed Mr . Jackson to two punishments
as a result of being convicted of a single charge . Counsel's failure to object constitutes
ineffective assistance of counsel . See, infra, issue XXIX (incorporated by reference).
6. Trial Counsel Failed to Ob'ect to the DeathSentence in this Case as Disproportionate,,- inViolation of Mr. Jackson's State and FederalRights
149.. Mr. Jackson has been convicted of a capital crime and sentenced to death.
Alabama appellate courts are required to independently review each sentence of death to
determine whether it is a disproportionate penalty based on the crime , the defendant and in
comparison to other crimes. See Pulley v. Harris, 465 U.S. 37 (1984). Based on the facts
of this case , the death penalty is disproportionate , and trial counsel ' s failure to object to the
imposition of the death penalty on this basis constitutes ineffective assistance of counsel.
See infra, issue V (incorporated by reference).
7. The Cumulative Errors of Mr . Jackson ' s TrialCounsel Denied Mr . Jackson EffectiveRepresentation at the Penal and SentencingPhases of His Capital Trial
150. The errors of counsel during the penalty and sentencing phase, as enunciated
above, denied Mr. Jackson his right to a fair trial and accurate sentence determination. The
failure of counsel to adequately investigate, prepare, and present evidence in support of a
sentence of life without parole resulted in the sentencing authorities' override of the jury's
life sentence, and resulted in Mr. Jackson's sentence of death. But for trial counsel's
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ineffective representation during the penalty and sentencing phases , Mr. Jackson would be
sentenced to life in prison without parole . See Kyles v . Whitley, 514 U. S. 419 (1995) (errors
considered cumulatively); Derden v . McNeel , 978 F .2d 1453 (5th Cir. 1992) (same). These
errors constitute a violation of Mr . Jackson 's rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution , the Alabama Constitution and
Alabama law. Wig, ig ns v . Smith , 123 S. Ct . 2527 (2003 ); Williams v. Taylor, 120 S. Ct.
1495 (2000 ); Strickland v. Washin gton , 466 U.S . 668 (1984 ). This Court must reverse Mr.
Jackson ' s sentence of death , and grant a new penalty and sentencing phase of Mr. Jackson's
capital trial.
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II. JUROR MISCONDUCT DURING THE TRIAL DEPRIVED MR.JACKSON OF HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS, ANDA RELIABLE SENTENCE DETERMINATION
151. Mr. Jackson's rights to a fair trial, due process and a reliable sentencing
determination were violated by the juror misconduct that occurred in this case . See Irwin v.
Dowd, 366 U.S. 717, 722 (1961) ( criminal defendant guaranteed right to fair trial by panel
of impartial , indifferent jurors). The fact that this is a capital case underscores the need for
a trial with a fair and impartial jury. As the Supreme Court stated in Woodson v. North
Carolina, 428 U.S. 280 ( 1976), "the penalty of death is qualitatively different from a sentence
of imprisonment , however long.... Because of that qualitative difference , there is a
corresponding difference in the need for reliability in the determination that death is the
appropriate punishment in a specific case ." Id. at 305.
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152. Mr . Jackson ' s right to a fair and impartial jury was violated due to several
jurors' failure to respond truthfully to multiple questions on voir dire. When a juror fails to
truthfully answer questions on voir dire , the defendant is deprived of his right to wisely
exercise peremptory strikes. Ex parteO'Leary , 438 So. 2d 1372 , 1373 (Ala. 1983); Ex pane
Ledbetter, 404 So . 2d 731 , 733 (Ala . 1981); Tomlin v. State, 695 So . 2d 157 (Ala. Crim.
App. 1996); see also United States v. Perkins, 748 F.2d 1519 , 1529 (111" Cir. 1984).
153. When asked on voir dire , several jurors failed to disclose that they were
familiar with the Smiley Court area , where the crime took place or the area where Mr.
Jackson ' s mother lived . These jurors, including jurors David Davis, Ashley Dickey Walden,
William Davis, Bernice Ethridge , James Garner , Monroe Clark and Coatest Carter , were all
familiar with these areas prior to the trial, but did not disclose this during voir dire. In fact,
Monroe Clark is a retired postal worker who, prior to trial, delivered mail to the Smiley Court
area and to the area where the accomplices lived . He did not disclose this information when
asked during voir dire.
154. Additionally, several jurors failed to disclose that they knew prosecutors, the 1
judge, or other individuals associated with Mr. Jackson's case. Jurors David Davis, William
Davis and Robert Hodgson all knew Judge Gordon but did not disclose this information on
avoir dire . Also, juror Jan Burkes did not reveal to the court that her cousin is Judge Gillis. 2,
Additionally , Robert Hodgson failed to disclose , when asked on voir dire , that he knewDi
Montgomery County District Attorney , Ellen Brooks . Had these jurors disclosed this
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information, these jurors would likely have been removed from Mr. Jackson's jury venire.
Additionally, juror Ashley Dickey Walden failed to disclose that she has several friends in
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the Montgomery County Police Department when asked during voir dire.
155. One of the critical issues at Mr . Jackson ' s trial was who fired the shot that
killed Mr. Moore . Several of the jurors failed to disclose that they owned guns in response
to a question about this. Juror Robert Hodgson failed to report that he owned a gun at the
time of trial. " Additionally, juror Mary Jackson owns a .380 , but did not disclose this 7
information on voir dire. This information was critical to counsel ' s ability to select a fair and
impartial jury to try Mr. Jackson ' s case , and without it, Mr . Jackson ' s rights were violated.
156. The jurors were instructed that their function during the guilt phase was only
Juror Barbara Endsley had made up her mind that Mr. Jackson should be sentenced to death
at the close of the guilt phase, in violation of these instructions and Mr. Jackson's rights to
a fair and impartial jury at sentencing.
to determine whether or not Mr. Jackson was guilty of capital murder. (R. 41.) Nonetheless,
157. Additionally , jurors William Davis and Mary Jackson did not reveal that they CA
each have relatives or close friends in law enforcement . Juror Monroe Clark did not reveaa 1 Q
that he had heard about the case before trial . Jurors Coatest Carter, Jan Burkes and Jarej \ t
Garner did not reveal that they had previously sat on a jury . Jan Burkes and Robert Hodgson \ ^.
had been or had family members who had been prior victims of crime , but failed to disclos6
this information on voir dire . Finally, juror Mary Jackson also failed to reveal that she had \3
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been involved in prior civil lawsuits.
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158. The failure of these jurors to respond to critical questions posed by defense
counsel on voir dire violated Mr . Jackson ' s right to due process and a fair and impartial jury
under the Fifth, Sixth, Eighth, and Fourteenth Amendments ofthe United States Constitution,
the Alabama Constitution, and Alabama State law. See Tomlin v. State, 695 So. 2d 157, 169
(Ala. Crim. App. 1996); McDonough Power Equipment v. Greenwood, 464 U.S. 548, 556
(1984) (constitutional violation when jurors deliberately deceive court about matter which
would constitute valid basis for challenge of juror).
159. Additionally, Mr. Jackson's right to a fair and impartial jury was violated by
the jury's consideration of extraneous evidence during deliberations . A criminal defendant
has the right to a fair and impartial jury. Jurors , in order to remain impartial, must be
guarded in their deliberations from outside influences that may unlawfully affect the verdict.
Ex arte Reed, 547 So. 2d 596, 597 (Ala. 1989); Miles v. State, 75 So. 2d 479, 672 (Ala.
1954). Federal and state law require that the verdict and sentence be based on the evidence
developed at trial, and only upon such evidence. Turner v. Louisiana, 379 U.S. 466, 472
(1965); Remmer v. United States, 347 U.S. 227, 229 (1954); Ex arte Troha, 462 So. 2d
953, 954 (Ala. 1984).
160. Mr . Jackson's right to a fair and impartial trial was violated when one or more
jurors , including juror JanBurkkees, did investigation outside the scope of the jury room and
visited the crime scene and then shared these findings with other members of the jury,
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including Cathy Bullock, Catrina Buggs, David Davis, William Davis, Barbara Endsley,
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Bernice Ethridge, James Garner, Mary Jackson , Monroe Clark, Coatest Carter, and Ashley
Dickey Walden . This crime scene investigation constituted unauthorized independent
investigation and was impermissible . ee United States v . Martinez, 14 F.3d 543 (11th Cir.
1994); Ex parte Potter, 661 So. 2d 260, 262 (Ala. 1994) (juror's visit to crime scene to view
the width of a street in a criminally negligent homicide case might have affected the jury's
verdict and warranted reversal of conviction).
161. Additionally, one or more jurors, including William Davis, David Davis, James
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Garner, Monroe Clark, performed outside experimentation by testing the bullets to discover
if the type of gun in Mr. Jackson' s possession at the time of his arrest could have fired the
bullet that killed the victim . These discoveries were then passed along to the jury members,
including Cathy Bullock , Jan Burkes , Catrina Buggs, David Davis , William Davis , Barbara
Endsley, Bernice Ethridge, James Garner, Mary Jackson, Monroe Clark, Coatest Carter, and
Ashley Dickey Walden, tainting the jury's determination by exposing them to extraneous
information. Ex parte Thomas, 666 So. 2d 855 (Ala. 1995) (juror putting on pants defendant
had been wearing at the time of arrest , having another juror bind his hands and attempt to
reach into his pockets to determine whether it was possible for handcuffed defendant to
remove cocaine from his pocket was reversible error); Reed v. State, 547 So. 2d 596 (Ala.
1988) (juror conducting home experiment was juror misconduct); Ex parte Lasle , 505 So.
2d 1263 (Ala. 1987) (several jurors conducting home experiment warranted reversal.); see
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also United States_v. Castello, 526 F. Supp. 847 (W.D. Tex. 1981) (court reversed where
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prejudice resulted when juror fired weapon into an object over weekend and informed other
jurors of results).
162. "When it cannot be absolutely proven that extraneous information obtained
through juror misconduct [] in no way affected the appellant, then a new trial is mandated."
Williams v. State, 570 So.2d 884, 887 (Ala. Crim. App. 1990). The extraneous information
obtained by these jurors most certainly influenced the jurors' guilt decision, and thus Mr.
Jackson is entitled to a new trial.
163. The conduct of the jurors in this case deprived Mr. Jackson of his right to be
tried by an impartial jury, his right to have questions answered by prospective jurors to enable
his counsel to exercise their peremptory strikes and to challenge jurors for cause, and his
rights to due process, a fair trial, an impartial jury, equal protection, and a reliable sentencing
protoected by the Fifth. Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution, the Alabama Constitution, and Alabama law.
III. THE STATE WITHHELD FAVORABLE EVIDENCE FOR THEDEFENSE THUS VIOLATING MR. JACKSON'S FEDERAL ANDSTATE RIGHTS.
164. The State withheld exculpatory information and information favorable to the
defense, despite defense counsel's request for such information. (C. 20, 33, 50.) The State's
suppression of this material violated Mr. Jackson's rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments of the United States Constitution, the Alabama Constitution. and
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Alabama State law.
165. In Brady v. Maryland , 373 U.S. 83 (1963 ), the United States Supreme Court
stated that "the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution ." Id. at 87.
166. In this case , the State failed to turn over to defense counsel the evidence of -
among other things - deals or agreements that had been entered into between the prosecution
and the co-defendants who testified for the State . Evidence favorable to the defense includes
evidence that would affect the jury ' s determination of the credibility ofthe witnesses. Gi lio
v. United States, 405 U.S. 150 (1972 ). The mandate to turn over favorable evidence extends
to both the determination of guilt or innocence and the sentencing proceeding . Brady, 373
U. S. 83, Ex parte Monk , 557 So. 2d 832 (Ala. 1989). The withholding of favorable evidence
is grounds for the reversal of a death sentence . See Brady, 373 U. S. 83; Ex parte Womack,
541 So . 2d 47 (Ala. 1988).
167. Additionally , the evidence introduced at trial and in the records that Mr.
^'1 Psi = NOT c C )7L-Jackson has received strongly indicates that additional discoverable material exists:
(a) In Gerard Burdette's April 26, 1997 statement to Corporal D. Cunningham, hestated that he thought an individual named P.J. was responsible for the victim'sdeath. Notably, Mr. Burdette did not reference P.J.'s real name nor did hemention the name Jay. However, while interviewing witness Lacrema Mooreon April 26, 1997 , Detective A.J. Signore suggested that P.J.' s real name isPatrick Stinson. He also suggested that someone named Jay hung around withan individual named "Big Leon." None of the offense reports or statementsprovided by the District Attorney's office explain how Detective Signore
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learned P .J.'s real name or obtained information referring to an individualnamed Jay . This suggests that some investigation occurred which was notdisclosed to Mr. Jackson.
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(b) In her April 27, 1996 statement, Victoria Moss, one of the few witnesses at thescene of this incident , drew a map of the crime scene for Detective Signore.Mr. Jackson' s trial counsel was never provided with a copy of the map drawnby Ms. Moss for Detective Signore., QKt,)l
(c) As indicated in a April 28 , 1997 offense report , after witnessing three African-American men on his property, A.C. Porterfield contacted Deputy Smithy atthe Montgomery County Sheriffs Department. Mr. Jackson's trial counselnever received any information from the Montgomery County SheriffsDepartment relating to this complaint. Wes'?
(d) In his statement to law enforcement officials , Antonio Barnes recalledreturning with Shonelle Jackson , and an individual named Roderick Crawford(a.k.a. Fido), to Old Hayneville Road the day after the incident. Lawenforcement officials interviewed many individuals named by the co-defendants as people they came in contact with after the alleged incident.However, no offense reports relating to Roderick Crawford or interviews withMr. Crawford were given to Mr. Jackson's trial counsel.y.'*-,,^.
(e) Members of law enforcement impounded both cars involved in this incident.These cars were examined by officials ; however , Mr. Jackson never receivedthe results of any tests or examinations that were performed on the inside ofthese automobiles . It is unreasonable to believe that the State would not haveconducted any tests of the interior of either car in order to ascertain whetheror not the seats or upholstery contained evidence of blood , hair , or other fibers,especially because Shonelle Jackson was initially charged with shooting intothe car. 1Jvk
(f) Other gaps in the evidence indicate that the State has not provided all of therequired evidence to Mr. Jackson . f"r. Jackson ' s co-defendants understoodthere to be a verbal agreement by which they would receive lesser sentencesin exchange for their testimony against Shonelle Jackson . Nonetheless,statements to at least one co -defendant's trial judge and statements made bythat court indicate that the co-defendants ' sentencing was deeply intertwinedwith the State ' s having already secured a conviction and sentence againstShonelle Jackson . Evidence of these deals between the co-defendants and the
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-,r,,QA ^r`' E4prosecution were not disclosed to Mr . Jackson ' s trial counsel. 1>
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(g) Sometime after this crime occurred, law enforcement officials questioned Mr.Jackson ' s girlfriend at the time , Latrice Walker . Not only did they speak withher, they asked her to accompany them to her former residence . No evidenceor information obtained during these meetings were provided to Mr. Jackson'strial counsel. cep
168. Due to the State ' s withholding of the above evidence , as well as other evidence
material to Mr. Jackson' s case , defense counsel did not have the ability to fairly challenge
the State 's evidence at both the guilt and penalty phase of Mr. Jackson' s trial . The State's
violation of Mr. Jackson ' s right to due process necessitates a reversal of Mr . Jackson's
conviction and death sentence.
IV. THE IMPOSITION OF THE DEATH PENALTY ON ONE WHO ISMENTALLY RETARDED VIOLATES THE EIGHTH ANDFOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION.
169. Application of the death penalty to, and execution of, a mentally retarded
person violates the Eighth and Fourteenth Amendments to the United States Constitution, the
Alabama Constitution and Alabama law. Atkins v. Virrginia, 536 U.S. 304 (2002). In Atkins,
the United States Supreme Court specifically held:
We are not persuaded that the execution of mentally retardedcriminals will measurably advance the deterrent or theretributive purpose of the death penalty . Construing andapplying the Eighth Amendment in the light of our "evolvingstandards of decency ," we therefore conclude that suchpunishment is excessive and that the Constitution "places asubstantive restriction on the State 's power to take the life" of amentally retarded offender.
Atkins, 536 U.S. at 321. The Court emphasized that while mentally retarded persons
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"frequently know the different between right from wrong and are competent to stand trial,"
because of their impairments , "by definition they have diminished capacities to understand
and process information , to communicate , to abstract from mistakes and learn from
experience , to engage in logical reasoning , to control impulses, and to understand the
reactions of others." Id.
170. In determining whether an individual is mentally retarded the Court looked to
the following as a generally accepted definition of mental retardation : "significantly
subaverage intellectual functioning (Criterion A) that is accompanied by significant
limitations in adaptive functioning in at least two of the following skill areas:
communication , self-care , home living, social/interpersonal skills, use of community
resources , self-direction , functional academic skills, work , leisure , health, and safety
(Criterion B). The onset must occur before age 18 years. (Criterion C)." Atkins, 536 U.S.
304 n .3 (citing American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 41 (0 Ed. 2000)).
171. As documented in records from the Department of Youth Services, Mr. Jackson
was diagnosed with borderline intellectual functioning at the age of fifteen . School records
- introduced into evidence at the suppression hearing held in 2001 - support this diagnosis.
Mr. Jackson failed both the first and third grade, and repeatedly made D's and F's throughout
his school career, which ended in the ninth grade. (Supp. C.R. 60.) Additionally, the
testimony at the suppression hearing revealed that Mr. Jackson was a "low achiever," (Supp.
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R. 67), and eager to please, (Supp . R. 67). All of these descriptions are consistent with an
individual who is mentally retarded.
172. Moreover, records of the Alabama Department of Corrections in 1997 DO*)QWI
establishes that Mr. Jackson received an Full Scale IQ score of 75 on a Beta II Test.
173. Additionally, investigation reveals that Mr. Jackson's mother, Marilyn Jackson,
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is mentally impaired and at some point in her youth resided at the Elks Memorial Center in
Chisholm, Alabama, through the State Department of Mental Health and/or the State
Department of Rehabilitation. A family history of mental retardation has been identified as
a possible predisposing factor to mental retardation in a particular individual. See Mental
Retardation: Definition, Classification, and Systems of Supports, American Association on
Mental Retardation, 10` ed. 2002, at 123-41.
174. This evidence establishes that Mr. Jackson meets the definition of mental
retardation identified by the Atkins Court and as such, his death sentence violates the Eighth
and Fourteenth Amendments.
V. THE DEATH SENTENCE IN THIS CASE IS DISPROPORTIONATE,IN VIOLATION OF MR. JACKSON'S STATE AND FEDERALRIGHTS
The American Association of Mental Retardation and the American Psychiatric Associationboth define subaverage intellectual functioning to include individuals with IQ's of between 70 and75 and below. See American Association on Mental Retardation, Mental Retardation: DefinitionClassification and Systems of Supports, 58-59 (10" ed. 2002); American Psychiatric Association,Diagnostic and Statistical Manual of Mental Disorders Text Revision 41 (4" ed. 2001).
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175. Mr . Jackson has been convicted of a capital crime and sentenced to death.
Alabama appellate courts are required to independently review each sentence of death to
determine whether it is a disproportionate penalty based on the crime, the defendant and in
comparison to other crimes . See Pulley v. Harris, 465 U . S. 37 (1984 ). Based on the facts
of this case , the death penalty is disproportionate.
176. Mr . Jackson was just over 18 years old at the time of the crime. See Eddinas
v. Oklahoma, 455 U.S. 104, 115 n.l 1 (1982)("crimes committed by youths may be just as
harmful to victims as those committed by older persons , but they deserve less punishment
because adolescents may have less capacity to control their conduct and to thing in long-
range terms than adults ."). Moreover, because none of the other codefendants received the
death penalty, the death penalty in this case is disproportionate to others who participated in
the crime . The application of the death penalty must be narrowed to an ascertainable and
distinct class of offenses.
If a State has determined that death should be an availablepenalty for certain crimes, then it must administer that penaltyin a way that can rationally distinguish between those indi-viduals for whom death is an appropriate sanction and those forwhom it is not.
Spaziano v. Florida, 468 U.S. 447, 460 (1984). There were three other people involved in
the crime for which Mr. Jackson was sentenced to die. All three of these codefendants were
given the opportunity and did plead to lesser offenses than capital murder. Antonio Barnes,
who was involved in the robbery and as the trial court acknowledged in its sentencing order,
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may actually be responsible for shooting and killing Mr. Moore, was sentenced to twenty-five
years. Eric Williams, another co-defendant who was also involved in the robbery, and as
established by his own testimony, shot a gun at the crime scene, was sentenced to life with
the possibility of parole. A third person, Christopher Rudolph, who was also involved in the
crime was sentenced to twenty years.
177. There is no adequate explanation for such a disparity in sentencing that meets
the Eighth Amendment's requirement that the death penalty be applied with some rationality
and review ability. Luck of the draw does not and cannot explain why Mr. Jackson is facing
death while three other people involved intricately involved in the crime are not. Spaziano
v. Florida, 468 U.S. 447, 460 (1984). Mr. Jackson's sentence violates his rights to due
process, a fair trial and a proportionate sentence protected by the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution, the Alabama Constitution and
Alabama law.
VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BYFAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDEDOFFENSE OF ROBBERY.
178. Mr. Jackson's jury convicted him of murder "during a robbery." The trial court
precluded Mr. Jackson from presenting evidence which supported his theory ofthe case: that
the motive for the killing was retaliation for a drug deal and that the killing did not occur
"during a robbery." Although the State's evidence showed that the victim was killed and that
the victim's car was stolen, the State's evidence also showed that the car was stolen only as
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an "afterthought" and that the robbery was thus a separate crime from the murder.
179. Under Alabama law, to obtain a conviction of capital murder, the state had the
burden of proving that the murder in this case took place "during" a robbery. It is well
established that a defendant is entitled to a charge on a lesser included offense if there is any
reasonable theory from the evidence that would support the position. Fletcher v. State, 621
So. 2d 1010, 1018 (Ala. Crir. App. 1993) ( citing Exparte Oliver, 518 So. 2d 705, 706 (Ala.
1987)); see also Ex parte McCall, 594 So. 2d 628, 628 (Ala. 1991); Fulghum v. State, 277
So. 2d 886 (Ala. 1973); Starks v. State , 594 So. 2d 187, 195 (Ala. Crim. App. 1991);
Connolly v. State, 500 So. 2d 57, 65 (Ala. Crim. App. 1985).
180. In the death penalty context, the United States Supreme Court has mandated
that capital juries be given the option of convicting defendants of lesser included offenses
because the failure to do so removes the "third option" from the jury, and thus increases the
risk of unwarranted convictions. Beck v. Alabama, 447 U.S. 625, 638 (1980). The Court
of Criminal Appeals has reiterated the importance of lesser included offenses in capital cases
in Connolly, 500 So. 2d at 66 (citing Spaziano v. Florida, 468 U.S. 447, 455 (1984)). The
trial court in this case never gave the jury the third option of convicting Mr. Jackson of
murder and robbery as separate crimes.
181. Alabama law is clear: a robbery committed as a "mere afterthought" and
unrelated to the murder will not sustain a conviction under Alabama Code § 13A-5-40(a)(2)
for the capital offense of murder-robbery. Ex 12arte Johnson, 620 So. 2d 709, 712 (Ala. 1993)
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("under Alabama law, a robbery committed as a `mere afterthought' and unrelated to the
murder will not sustain a conviction for the capital offense of robbery murder").
109. The trial court's failure to allow the jury the choice of the lesser included
offense of robbery resulted in an improper conviction that violated Mr. Jackson's rights
under the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution,
the Alabama Constitution and Alabama law.
VII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BYDENYING MR. JACKSON A CONTINUANCE TO SECURE ACRITICAL WITNESS.
182. Prior to trial, Mr. Jackson moved the trial court for a continuance to secure a
material witness. The witness was material because, according to the state, he was the only
eyewitness to the crime other than the defendant and co-defendants. (R. 19-20) Moreover,
the witness gave a statement to the police which supported Mr. Jackson's defense in this case
that the motive for the killing was retaliation for a bad drug deal and that the killing did not
occur during a robbery. (C. 87-96) The court denied Mr. Jackson's motion for continuance,
(C. 100), and in doing so, committed reversible error under Alabama law. Ex parte
Saranthus, 501 So. 2d 1256 (Ala. 1986). Moreover, the trial court's failure to grant a
continuance contravened the United States Supreme Court's warning that the swift
administration of justice should never override a defendant's right to due process and a fair
trial. See Powell v. Alabama, 287 U.S. 45, 59 (1932).
183. In this case the trial court abused its discretion in denying Mr. Jackson's
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pretrial motion for a continuance to secure a material witness as all three Saranthus factors
were met. The expected witness was unquestionably material and competent. The witness,
Gerard Burdette, was an eyewitness to the shooting, (R. 19), and gave a statement to the
police which supported Mr. Jackson's defense theory. Jackson made "a good-cause
showing" as to the probability that Burdette would testify if the case were continued. See
Pilley v. State, 789 So. 2d 870 (Ala. Crim. App. 1998) (overruled on other grounds) (moving
party must make a "good-cause showing" of the three grounds that support the granting of
a motion of continuance).
184. By denying Mr. Jackson's motion for a continuance, the trial court erroneously
excluded potentially exculpatory evidence. Brady v. M land, 373 U.S. 83 (1963). Mr.
Burdette's testimony would have supported a finding by the trial court that the victim was
a participant in the crime, which would have constituted a statutory mitigating circumstance
under Alabama law. ALA. CODE § 13A-5-51 (3) (1975).
185. Mr. Jackson met all three of this Court's requirements for obtaining a
continuance in order to secure a missing witness. The trial court's failure to grant a
continuance deprived Mr. Jackson of his rights to due process, to present a defense, a fair
trial, and a reliable sentence protected by the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, the Alabama Constitution, and Alabama law.
VIII. THE TRIAL COURT IMPROPERLY LEFT THE COURTROOMWHILE THE JURY WATCHED MR. JACKSON'S VIDEOTAPEDSTATEMENT.
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186. "There can be no court without a judge, and his presence, as the presiding
genius of the trial , is as essential at one time as another." Smith v. State , 158 So . 808, 811
(Ala. 1935) (citation and quotation omitted). Mr. Jackson had a fundamental right to have
the trial judge be present during his capital trial. See Heflin v. United States, 125 F. 2d 700
(5`h Cir. 1942) ("Neither the stage of the proceeding, the length of or reason for the departure,
nor the judge's proximity to the courtroom has been viewed as a factor which mitigates the
harm created by the judge's absence.") Yet, during Mr. Jackson's capital trial, the judge left
the courtroom while the jury watched a videotaped statement of Mr. Jackson. (R. 524-25.)
187. The trial judge, essential to the proceedings, relinquished judicial control and
refused to "see that the trial proceed[ed] in an orderly manner and in accordance with law"
solely because he had seen the evidence before. Smith,158 So. at 8 10-11. This, in and of
itself, constitutes reversible error. See Brown v. State, 1538 So. 2d 833, 836 (Fla. 1989)
(holding that the absence of the judge when a jury communication is received and answered
is reversible error despite appellant's failure to ol?ject).Moreover, the court forced Mr.
Jackson to rely upon a court reporter to ensure that the trial proceeded in accordance with
law. Smith, 158 So. at 811. The trial judge's absence during Mr. Jackson's capital trial
violated Mr. Jackson's right to due process, a fair trial and reliable sentencing protected by
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the
Alabama Constitution and Alabama law.
IX. THE STATE IMPROPERLY OBTAINED MR. JACKSON'SCONVICTION BY UNCORROBORATED ACCOMPLICE
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TESTIMONY.
188. The state 's robbery case rested on the testimony of three accomplices,
individuals who themselves were indicted for the same crime of capital murder , individuals
who all hoped to gain something by testifying, and individuals who were housed together in
the Montgomery County Jail prior to the trial. This testimony with respect to robbery
remained wholly uncorroborated by any other evidence.
189. Under Alabama law, such uncorroborated testimony is insufficient to convict
Mr. Jackson of capital murder . See Ala . Code § 12-21-222 (1975). Because no question
exists as to whether these individuals were accomplices in the alleged robbery of Mr.
Moore ' s car, Alabama law requires that their testimony be corroborated . See Leitner v. State,
672 So. 2d 1371 (Ala. Crim. App. 1995) (state must present other evidence tending to
connect defendant with offense to allow consideration of accomplice ' s testimony).
190. Under Alabama law, one accomplice cannot corroborate another accomplice's
testimony to support a felony conviction. Knowles v. _State, 204 So. 2d 506 (Ala. 1967).
Accordingly, the testimony of Antonio Barnes, Eric Williams and Christopher Rudolph
cannot be used to implicate Mr. Jackson in the crime , instead corroborating evidence must
be provided by other sources.
191. Moreover, the trial court failed to instruct the jury about the accomplice
corroboration requirement. This was a question of fact for the jury, and without such
instructions, the jury could not have reliably determined whether the accomplice testimony
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of these witnesses was in fact corroborated by outside evidence . See Gurley v. State , 639 So.
2d 557, 561 (Ala. Crim. App. 1993); In re Winship, 397 U.S. 358 (1970) ("Proof beyond
reasonable doubt is required to establish guilt of criminal charge .") Mr. Jackson 's conviction
and death sentence were thus achieved in violation of his rights to due process, a fair trial and
a reliable sentencing protected by the Fifth , Sixth , Eighth and Fourteenth Amendments to the
United States Constitution, the Alabama Constitution and Alabama law.
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X. THE STATE ' S USE OF ITS PEREMPTORY CHALLENGESDISCRIMINATED ON THE BASIS OF RACE AND GENDER.
192. This Court must remand Mr. Jackson 's case to the trial court for a hearing to
determine whether the State discriminated on the basis of gender and race in its use of
peremptory strikes. At Mr. Jackson's trial, there was a prima facie case of discrimination in
violation of Batson v. Kentucky, 476 U.S. 79 (1986), and J .E.B. v. Alabama, 511 U.S. 127
(1994). Mr. Jackson is black. There were 42 prospective jurors on Mr . Jackson 's jury venire,
of which 25 were female and 19 were black . The prosecutor had 15 peremptory strikes, of
which he used 8 to remove women and 8 to remove blacks. In overruling defense counsel's
timely objection under Batson and J.E.B. (by reference to Batson 's progeny), the trial court
committed reversible error . (R. 156.)
193. In Ex parte Thomas, 659 So. 2d 3 (Ala. 1994), the Alabama Supreme Court
held that a prima facie case of discrimination can be made by showing that the prosecution
used a large number of its strikes to remove blacks, notwithstanding the fact that a larger
percentage of blacks sat on the jury than sat on the venire. Id. at 8; see also Alexander v.
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State, 673 So. 2d 791 (Ala. Crim. App. 1995) (principles of Batson and its progeny extended
to gender discrimination). In addition, there was a lack of meaningful voir dire and the
district attorney for Montgomery County has a history of racial discrimination in jury
selection. See,a e.g., Ex parte Yelder, 630 So. 2d 107, 109 (Ala. 1992); Ex pane Bird, 594 So.
2d 676, 681 (Ala. 1991); Parker v. State, 568 So. 2d 335 (Ala. Crim. App. 1990); Powell v.
State, 548 So. 2d 590 (Ala. Crim. App. 1988); Williams v. State, 548 So. 2d 501 (Ala. Cr.
App. 1988); Acres v. State, 548 So. 2d 459 (Ala. Crim. App. 1987).
194. The trial court erred by not requiring the state to articulate its reasons for
striking women and blacks from Mr. Jackson's jury and thus violated his rights to due
process, a fair trial, equal protection and a reliable sentencing protected by the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama
Constitution and Alabama law.
XI. THE TRIAL COURT'S REASONABLE DOUBT INSTRUCTION WASUNCONSTITUTIONAL.
195. In Cage v. Louisiana, 498 U.S. 39 (1990), the United States Supreme Court
reversed a conviction because the trial court gave an improper reasonable doubt instruction.
The trial court in Cage erroneously defined "reasonable doubt" as "an actual substantial
doubt" and "such doubt as would give rise to a grave uncertainty," and indicated that in order
to convict the jury need not find guilt to "an absolute or mathematical certainty," but only to
a "moral certainty." Id. at 364. Since Cage, courts must reverse convictions "where there is
a reasonable likelihood that the jury understood the instruction to allow conviction based on
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proof insufficient to meet the Winship standard ." Victor v . Nebraska, 511 U. S. 1 , 6 (1994).
196. In Mr . Jackson ' s case, the court instructed that "proof beyond a reasonable
doubt is proof of such a convincing character that you will be willing to rely and act upon it
without hesitation in the most important ofyour personal affairs ." (R. 85.) Similar to the trial
this court also told the jury that the State need not prove Mr. Jackson ' s guiltcourt in Ca
"to a mathematical certiant[y]." (R. 85 .) These instructions, in addition to the other
instructions , lowered the burden of proof.
197. The problem was exacerbated by the court ' s instruction that "a reasonable
doubt is a doubt for which you can give a reason ." (R. 84.) Such an instruction improperly
suggests that even if the state 's proof had not persuaded a juror , the resulting doubt would not
be regarded as "reasonable " unless the juror were able to assign a reason to it.
198. In its entirety , the trial court 's reasonable doubt instruction created a reasonable
likelihood that the jury would convict on proof insufficient to meet the Winship standard.
It therefore violated Mr . Jackson ' s right to due process , a fair trial and a reliable sentencing
determination protected by the Fifth, Sixth, Eighth , and Fourteenth Amendments to the
United States Constitution , the Alabama Constitution , and Alabama state law.
XII. THE TRIAL COURT IMPROPERLY ADMITTED PHOTOGRAPHSTHAT SERVED ONLY TO INFLAME AND PREJUDICE THE JURY.
199. Photographs or videotapes that "serve little or no purpose except to arouse the
passion, prejudice, or sympathy ofthejury" should be excluded from evidence. Qtt v. Smith,
413 So. 2d 1129, 1132 (Ala. 1982). The introduction of cumulative and prejudicial
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photographs is not only a violation of state law, but also infringes on Mr. Jackson's rights to
due process and a fair trial. Futch v. Dugger, 874 F.2d 1483, 1487 (11th Cir. 1989); Osborne
v. Wainwright, 720 F.2d 1237, 1238 (11th Cir. 1983); Dickson v. Wainwright, 683 F.2d 348,
350 (11th Cir. 1982). At Mr. Jackson' s trial , the state introduced pictures of the victim after
he was killed. (R. 191.) Showing the jury these slides and pictures seriously prejudiced Mr.
Jackson.
200. In admitting such evidence, the trial court violated Mr. Jackson's rights to due
process, a fair trial and a reliable sentencing guaranteed by the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and
Alabama state law.
XIII. THE TRIAL COURT IMPROPERLY GRANTED THE STATE'SCHALLENGES OF JURORS FOR CAUSE
201. In Witherspoon v. Illinois, 391 U.S. 510 (1968), the United States Supreme
Court held that it was unconstitutional to exclude venire members for cause when they
expressed general objections to the death penalty. Id. at 522. The standard for determining
whether a prospective juror may be excluded for cause because of his or her views on capital
punishment is whether the juror's views would "prevent or substantially impair" the
performance of his or her duties as a juror in accordance with instructions and his or her oath.
Wainwright v. Witt 469 U.S. 412, 424 (1985); see also Brownlee v. State, 545 So. 2d 151,
155-56 (Ala. Crim. App. 1988). At Mr. Jackson's trial, jurors that were struck indicated they
could follow the law even though they had opinions about the death penalty. Because they
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could follow the law, the trial court erred in granting the state's challenge for cause as to
these jurors . Wainwright v. Witt, 469 U.S. 412, 424 ( 1985).
202. Moreover, the use of strikes for cause or the use of peremptory strikes to
exclude jurors with reservations about the death penalty is unconstitutional because jurors
with reservations about the death penalty possess a commonality that makes them a
cognizable group . Although in Lockhart v. McCree , 476 U.S. 162 (1986 ), the Court did not
find that such jurors are a cognizable group under the Sixth Amendment , the Court has
embraced a broader definition of cognizability under the Equal Protection Clause of the
Fourteenth Amendment in the Batson context . See, ems, Powers v. Ohio, 499 U.S. 400
(1991); J.E.B. v. Alabama, 511 U.S. 127 (1994).
203. The exclusion of these jurors violated their rights to equal protection as well
as Mr . Jackson's rights to due process , equal protection , a jury comprised of a fair cross
section of the community , an impartial jury , a fair trial and a reliable sentencing guaranteed
by the Fifth , Sixth, Eighth , and Fourteenth Amendments to the United States Constitution,
the Alabama Constitution , and Alabama law.
XIV. THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE THATDID NOT HAVE A PROPER CHAIN OF CUSTODY.
204. The trial court erred when it admitted evidence without establishing a proper
chain of custody. As this Court is well aware , evidence is not admissible at trial when there
is a "missing link" in the chain of people who handle an evidentiary item. Exparte Holton,
590 So. 2d 918 (Ala. 1991); Russaw v. State, 624 So. 2d 234 (Ala. Crim. App. 1993); see
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also Rochin v. California, 342 U.S. 165 (1952) ("Under the Due Process Clause of the
Fourteenth Amendment , a state's convictions cannot be brought about by methods that offend
a sense of justice .") In this case , the state attempted to introduce evidence of a bullet that
allegedly relevant to the crime . However , the state did not establish a proper chain of
custody of the bullet , thus rendering the evidence inadmissible at trial . In admitting this
evidence , the trial court committed reversible error and violated Mr. Jackson ' s rights to due
process, a fair trial and a reliable sentencing protected by the Fifth , Sixth , Eighth and
Fourteenth Amendments to the United States Constitution, the Alabama Constitution and
Alabama law. Ex parte Cook, 624 So. 2d 511 (Ala. 1993); Laws v. State, 562 So. 2d 305
(Ala. Crim. App. 1990).
XV. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT MR.JACKSON OF CAPITAL MURDER.
205. Due process requires that no person shall lose his liberty unless the state has
proven every element of the criminal charge beyond a reasonable doubt. In re Winship, 397
U.S. 358, 364 (1974); see also Montana v. Egeihoff, 518 U.S. 37, 46 (1996) ("the Due
Process Clause requires the government to prove the existence of every element of the
offense beyond a reasonable doubt."); Beard v . State, 612 So. 2d 1335, 1345 (Ala. Crim.
App. 1992) (state must prove every element beyond reasonable doubt). The state's failure to
meet its burden of proof requires reversal . See Ex parte Edwards, 452 So. 2d 503 (Ala.
1983) (capital case reversed where evidence insufficient to establish malice aforethought to
sustain conviction of murder of police officer); Banks v. State, 575 So. 2d 1244 (Ala. Crim.
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App. 1991) (state's failure to sufficiently prove one element of charged offenses requires
reversal); see also Ex2arte Woodall, 730 So. 2d 652 (Ala. 1998) ("[the role of the appellate
courts] is to judge whether the evidence is legally sufficient to allow submission of an issue
for decision by the jury").
206. In order to sustain a conviction for robbery-murder, both the intentional killing
and the robbery must be proven. See Coleman v. Jones, 909 F.2d 447 (11 `" Cir. 1990), cert.
denied, 499 U.S. 911 (1991). In this case, the state failed to prove the element of robbery.
The state's failure to satisfy its burden of proof to establish that Mr. Jackson was guilty of
all of the elements of the capital crime of murder during a robbery violated his rights to due
process, a fair trial and a reliable sentencing under the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution, the Alabama Constitution and Alabama law.
XVI. DOUBLE COUNTING ROBBERY AS AN ELEMENT OF THECAPITAL OFFENSE AND AS AN AGGRAVATING CIRCUMSTANCEWAS IMPROPER.
207. An aggravating circumstance the state presented at the penalty-phase of the
trial was that Mr. Jackson been found guilty of committing an intentional murder during the
course of a robbery. This conviction rendered him eligible for the death penalty under
Alabama law. The trial court gave weight to this conviction in sentencing Mr. Jackson to
death. The "double counting" of Mr. Jackson's robbery conviction in this case was improper
and unconstitutional.
208. The Alabama Supreme Court has held that double counting does not offend the
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state Constitution generally. See Ex 12arte Kennedy, 472 So. 2d 1106, 1108 (Ala. 1985). In
this case, however, the use of robbery both as an elevator in the guilt-phase and as an
aggravator in the penalty-phase failed to narrow the class of cases eligible for the death
penalty, resulting in the arbitrary imposition of the death penalty. Se e.g., Gregg v.
Georgia, 428 U.S. 153, 197 (1976); Zant v. Stephens, 462 U.S. 862, 877 (1983).
209. Further, double counting robbery subjected Mr. Jackson to two punishments
as a result of being convicted of a single criminal charge . See North Carolina X. Pearce, 395
U.S. 711, 717 (1969); Meyer v. State, 575 So. 2d 1212 (Ala. Crim. App. 1990). The double
counting of robbery both as an elevator in the guilt-phase and as an aggravator in the penalty-
phase violated Mr. Jackson's rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, the Alabama Constitution, and state law.
XVII. ALABAMA'S MANNER OF EXECUTIONCONSTITUTES CRUEL AND UNUSUAL PUNISHMENT
210. The Eighth Amendment requires states to take all feasible measures to
minimize the risk of cruelty in administering capital punishment. See Zant v. Stephens, 462
U. S. 862 (1983). Electrocutions in Alabama are characterized by the use of faulty equipment,
unqualified personnel, and inadequate procedures which result in body charring and electrical
burns to the backs, thighs, arms, and abdomens of condemned prisoners. If Mr. Jackson is
executed in Alabama's electric chair, his death likely will be slow and excruciating, his body
burned and mutilated. The Eighth Amendment cannot be construed to uphold the kind of
error that has attended electrocutions in Alabama.
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211. Mr. Jackson also contends that the undeveloped procedures for administering
lethal injection , and the cruelty of lethal injection violate the Eighth Amendment . Evolving
standards of decency have rendered Alabama ' s method of execution unconstitutional. Mr.
Jackson ' s death sentence constitutes cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments to the United States Constitution.
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XVIII. THE CUMULATIVE EFFECT OF ALL OF THEABOVE ERRORS ENTITLES MR. JACKSON TORELIEF
212. The cumulative effect of the errors of state and federal law alleged in this Rule
32 petition violate Mr . Jackson ' s rights to due process and a fair trial protected by the Fourth,
Fifth , Sixth, Eighth , and Fourteenth Amendments to the United States Constitution, the
Alabama Constitution, and Alabama law.
PRAYER FOR RELIEF
For all the above stated reasons and other such reasons as may be made upon
amendment of this petition and a full evidentiary hearing, Petitioner Shonelle Jackson
respectfully asks this Honorable Court to grant him the following relief:
(a) conduct a full evidentiary hearing at which proof may be offered concerning
the allegations in this petition;
(b) provide Petitioner , who is indigent, with funds sufficient to present witnesses,
experts , and other evidence in support of the allegations contained in this
petition;
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(c) issue an order relieving petitioner of his unconstitutionally obtained conviction
and death sentence following a full and complete hearing; and
(d) grant Petitioner any such additional relief as is just, equitable , and proper
under federal and state law.
Respectfully submitted,
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A. Stevensonela L. Setzer
Equal Justice Initiative of Alabama122 Commerce StreetMontgomery, AL 3 6104334-269-1803
Counselfor Mr. Jackson
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Dated : March 31, 2004
ATTORNEY 'S VERIFICATION
I swear under penalty of perjury that, upon in
true and correct . Signed on March 31, 2004.
nnation aj belief, the foregoing is
er
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Counselfor Mr. Jackson
SWORN AND SUBSCRIBED before me this the '3 ^ day of /14 L 1-+ , 2004.
'^ r A L / 1Notary Public
My cominissi •pires: ZOO
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CERTIFICATE OF SERVICE
I hereby certify that on March 31, 2004, I served a copy of the attached petition by
first class mail, postage prepaid and properly addressed to:
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Jeremy McIntireOffice of the Attorney GeneralAlabama State House11 South Union StreetMontgomery, AL 3 613 0
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NO.
IN THE SUPREME COURT OF ALABAMA
EX PARTE SHONELLE ANDRE JACKSON
(In re : Ex parte State of Alabama
(In re: Shonelle Andre Jackson,Petitioner
v.
1 State of Alabama,Respondent))
Alabama Court of CriminalAppeals No . CR-04-0096
Montgomery County CircuitCourt No. CC-97-2300.60
FILED
APR - 1 2005
CLERKALA COURT CRIMINAL APPEALS
PETITIONER ' S APPENDIX TOPETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OFCRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY,
CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT
VOLUME II OF III
1I
Bryan A . Stevenson
Angela L. SetzerEqual Justice Initiative ofAlabama122 Commerce StreetMontgomery , AL 36104Ph: (334) 269-1803Fax: (334 ) 269-1806
Counsel for Shonelle Jackson
April 1, 2005
1 NO.
IN THE SUPREME COURT OF ALABAMA
EX PARTE SHONELLE ANDRE JACKSON
(In re : Ex parte State of Alabama
(In re : Shonelle Andre Jackson,
Petitioner
v.
State of Alabama,
Respondent))
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Alabama Court of CriminalAppeals No. CR-04-0096
Montgomery County CircuitCourt No . CC-97-2300.60
PETITIONER'S APPENDIX TO
PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OFCRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY,
CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT
VOLUME II OF III
I
Bryan A. StevensonAngola L. Setzer
Equal Justice Initiative ofAlabama122 commerce StreetMontgomery, AL 36104Ph: (334) 269-1803Fax: (334) 269-1806
Counsel for Shonelle Jackson
April 1, 2005
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INDEX TO APPENDIX OF EXHIBITS
TAB 1 Opinion of the Alabama Court of Criminal Appealsdated March 18, 2005
TAB 2 Order of Honorable Judge Tracy S. McCooey dated
March 23, 2005
TAB 3 State of Alabama's Petition for Writ of Mandamus toHonorable Tracy S. McCooey, Circuit Judge, FifteenthJudicial Circuit; Volumes I, II of Exhibits
Exhibit A
Exhibit B
Exhibit C
Exhibi t D
Exhibit E
Exhibit F
Exhibi t G
Shonelle Jackson's Amended Rule 32
Petition
State 's Answer to Shonelle Jackson'sAmended Rule 32 Petition
State's Motion to Dismiss ProcedurallyBarred Claims
State's Motion to DismissInsufficiently Plead Claims
State's Motion to Dismiss ClaimsPursuant to Rule 32.7(d)
Mr. Jackson 's Motion for Discovery ofInstitutional Records , Files, andInformation Necessary to a Fair Rule32 Evidentiary Hearing
Mr. Jackson's Motion for Discovery ofProsecution Files, Records and
Information Necessary to a Fair Rule32 Evidentiary Hearing
Exhibit H State's Response to Mr. Jackson'sMotion for Discovery of InstitutionalRecords, Files, and InformationNecessary to a Fair Rule 32Evidentiary Hearing
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Exhibit I State's Response to Mr. Jackson'sMotion for Discovery of ProsecutionFiles, Records, and InformationNecessary to a Fair Rule 32Evidentiary Hearing
Exhibit J Mr. Jackson's Response to the State's
Opposition to his Discovery Requests
Exhibit K Transcript of the Hearing Held onOctober 13 , 2004 in the MontgomeryCounty Circuit Court on the Parties'Motions
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Exhibit L Circuit Court's Order of October 13,2004
TAB 4 Shonelle Jackson's Answer in Opposition to the Stateof Alabama's Petition for Writ of Mandamus toHonorable Tracy S. McCooey, Circuit Judge, FifteenthJudicial Circuit
Exhibit A Petitioner's Response to the State'sMotions to Dismiss
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TAB 5 Brief of Amicus Curiae of the Alabama Department toHuman Resources
TAB 6 Petitioner's Objection to this Court's Signing ofthe State's Proposed Orders Without Modification
TAB 7 State's Response to Jackson's Objection to thisCourt's Signing of the State's Proposed Orderswithout Modification
2
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IN THE CIRCUIT COURT OF MONTGOMERY COUNTY , ALABAMA
SHONELLE ANDRE JACKSON,
Petitioner,
v. ) CC-1997-2300.60
STATE OF ALABAMA,
Respondent.
STATE OF ALABAMA ' S ANSWER TO JACKSON ' S AMENDED PETITIONFOR RELIEF FROM CONVICTION AND DEATH SENTENCE
Comes now Respondent, the State of Alabama, and
files an answer to Jackson's amended petition for
relief from conviction and death sentence. The State
answers the petition for relief from conviction and
sentence of death, filed pursuant to Rule 32 of the
Alabama Rules of Criminal Procedure, as follows:
RESPONSE TO PROCEDURAL HISTORY
1. In the unnumbered introductory paragraph to his
Rule 32 petition, Jackson claims that his conviction
and death sentence were unconstitutionally obtained.
That claim is denied. It is admitted that Shonelle
Andre Jackson is now incarcerated at Holman State
Prison in Atmore, Alabama.
2. Paragraph one of the petition is admitted.
Jackson was indicted on two counts of capital murder,
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in violation of Alabama Code Sections 13A-5-40(a)(2)
and 13A-5-40(a) (17), on one count of theft, in
violation of Alabama Code Section 13A-8-3, and on one
count of receiving stolen property, in violation of
Alabama Code Section 13A-8-17. (CR. 7-11)
3. Paragraph two of the petition is admitted.
4. Paragraph three of the petition is admitted to
the extent that the jury's recommendation of life
without parole was not a "verdict" but was a
recommendation. In addition, this court found the
existence of the following aggravating circumstances:
the §13A-5-49(4), Code of Alabama (1975) aggravating
circumstance that the capital offense was committed
while Jackson was engaged in the commission of, or an
accomplice in the commission of, a robbery; and the
§13A-5--49(1), Code of Alabama (1975) aggravating
circumstance that the capital offense was committed by
one under a sentence of imprisonment. (CR. 174-175)
This court also found the following mitigating
circumstance: the §13A-5-51(7), Code of Alabama (1975)
mitigating circumstance that Jackson was 18 years old
at the time the offense was committed. (CR. 177-178)
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This Court also considered numerous non-statutory
mitigating circumstances. (CR. 178-179)
5. Paragraphs 4-5 of the petition are admitted.
6. Paragraph 6 is admitted. A hearing was
conducted on October 24, 2001, as ordered by the
Supreme Court of Alabama. This Court subsequently
determined, after examining the totality of the
circumstances surrounding Jackson's statement, that
Jackson's statement was voluntary and therefore
properly admissible. (Supp. R. 8-12) On return from
remand, the Supreme Court of Alabama affirmed Jackson's
conviction and death sentence and denied his
application for rehearing. Ex parte Jackson, 836 So. 2d
979 (Ala. 2002). In addition, the Alabama Court of
Criminal Appeals issued the Certificate of Judgment in
this case on May 31, 2002..
7. Paragraphs 7-8 of the petition are admitted.
RESPONSE TO GROUNDS FOR RELIEF
I
1. THE CLAIM THAT COUNSEL WAS INEFFECTIVE AT BOTH THE
GUILT AND PENALTY PHASES OF JACKSON ' S TRIAL
8. Paragraphs 9-11 fail to state an independent
claim for relief in accordance with Alabama Rule of
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Criminal Procedure 32.7(d) because they do not allege
specific acts or omissions of counsel and, instead, are
merely introductory paragraphs for the particular
allegations within Ground I of the petition. As such,
these paragraphs are due to.be dismissed pursuant to
Rule 32.7(d). See Thomas v. State, 766 So. 2d 860, 892
(Ala. Crim. App. 1998) ("... a review of a claim of
ineffective counsel is not triggered until the
petitioner has identified specific acts or
omissions."). Alternatively, any arguments contained
in paragraphs 9-11 are denied. The ineffective
assistance of counsel claims are answered as follows:
The Claim That Jackson Was Denied The Effective
Assistance Of Counsel In Part Because Of The
Insufficient Funds Provided For Court -AppointedAttorneys In Capital Cases'
9. This claim is contained in paragraphs 12-16
and is answered as follows:
a) This claim is due to be dismissed because it
is procedurally barred as it could have been but was
not raised at trial or on direct appeal. Ala. R. Crim.
P. 32.2(a)(3) and (5). As noted by Alabama Court of
(This claim is unnumbered in Jackson's amended Rule 32petition.
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Criminal Appeals in Bui v. State, 717 So. 2d 6, 16 n. 9
(Ala. Crim. App. 1997):
[T]here is a sound legal basis for applying
the procedural bars found in Rule 32.2(a)
to the appellant's claim. Most of the usual
factors disinclining an attorney fromalleging his or her own ineffectiveness are
not present in a claim of this nature,
because an attorney claiming that he or she
was deprived of funds sufficient to mount
an adequate defense is not necessarily
admitting to having made poor strategic
choices or unprofessional mistakes, but is
instead asserting that despite the best
intentions to act in the client's behalf,the attorney's performance has been
improperly hampered by forces beyond theattorney's control. It might be argued,
then, that the appellant's attorneys at
trial and on appeal had little
disincentive, and ample opportunity, to
present a claim that the compensation
scheme in § 15-12-21(d) prevented them fromrendering legally effective assistance, ifthey believed this to be the case.
Accordingly, the claim that Alabama's compensatory
scheme caused counsel to render ineffective
assistance should be deemed procedurally barred
because Jackson's counsel could have raised this
issue both at trial and on appeal.
b) This claim is due to be dismissed for failing
to meet the requirements of Rules 32.3 and 32.6(b),
Ala.R.Crim.P. Jackson does not fully disclose the
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factual basis of his claim that he was denied effective
assistance of counsel. Jackson has not made a full
disclosure of the facts upon which he is relying to
entitle himself to relief. His pleading does not
include any facts which, if presented by trial counsel,
would have resulted in a different finding by the trial
court. Under Rule 32.7(d), Ala.R.Crim.P., this claim
of ineffective assistance of counsel that is not
sufficiently pleaded is due to be dismissed. ("If the
court determines that the petition is not sufficiently
specific, or is precluded, or fails to state a claim,
or that no material issue of fact or law exists which
would entitle the petitioner to relief under this rule
and that no purpose would be served by any further
proceedings, the court may either dismiss the petition
or grant leave to file an amended petition").
c) Moreover, this claim should be dismissed as a
matter of law because the underlying issue was raised
on direct appeal and held to be without merit. Jackson
v. State, 836 So. 2d 915, 959-960 (Ala. Crim. App.
1999). Jackson cannot prevail on a claim of
ineffective assistance of counsel when the Court of
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Criminal Appeals ruled that the ground for the claim
was without merit. See Dobyne v. State, 805 So. 2d
733, 744 (Ala. Crim. App. 2000)("A finding of no
manifest injustice under the `plain error' standard on
direct appeal serves to establish a finding of no
prejudice under the test for ineffective assistance of
counsel provided in Strickland v. Washington");
Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be
without merit"). The ground which underlies Jackson's
claim of ineffective assistance of counsel has been
held to be without merit and, as a result, this claim
should be dismissed as a matter of law.
d) Alternatively, this claim is denied.
A. The Claim That Jackson Was Denied Effective
Assistance Of Counsel During The Guilt PhaseOf His Trial.
10. This claim is contained in paragraphs 17-71
and contains numerous sub-claims. These claims are
answered as follows:
11. Paragraph 17 fails to state an independent
claim. for relief in accordance with Alabama Rule of
7
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Criminal Procedure 32.7(d) because it does not allege
specific acts or omissions of counsel and, instead, is
merely an introductory paragraph for the particular
allegations within Ground I.A of the petition,. As such,
this paragraph is due to be dismissed pursuant to Rule
32.7(d). See Thomas v. State, 766 So. 2d 860, 892
(Ala. Crim. App. 1998) ("... a review of a claim of
ineffective counsel is not triggered until the
petitioner has identified specific acts or omissions").
1. The Claim That Counsel Was Ineffective
For Failing To Adequately Investigate TheState's Capital Murder Charge AgainstJackson.
12. This claim is contained in paragraphs 18-27
and contains separate sub-claims. Specifically,
Jackson alleges that trial counsel was ineffective for
failing to adequately meet with or interview himself,
his family, or other witnesses. Jackson argues that
had trial counsel adequately met with and interviewed
those individuals, trial counsel would have been able
to present evidence that the crime was the result of a
"drug deal gone bad". Jackson asserts that had trial
counsel presented such evidence, the trial court would
not have granted the State's motion in limine to
8
prevent the defense from introducing evidence that the
victim was a drug dealer.2 These claims are answered
as follows:
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a) The claim that trial counsel was
ineffective for failing to adequately
meet with Jackson and establish arelationship of trust.
a) Based on the trial record, this claim is due
to be summarily dismissed pursuant Ala. R. Crim. P.
32.7(d) because no material issue of law or fact exists
which would entitle Jackson to relief and no purpose
2 This claim is due to be dismissed as insufficientlyplead to the extent that Jackson is alleging thattrial counsel's failure to investigate would haveresulted in the discovery of evidence or testimony
separate and distinct from evidence concerning a
"drug deal gone bad". In Thomas v. State, 766 So. 2d860, 892 (Ala. Crim. App. 1998), the Alabama Court of
Criminal Appeals, citing Nelson v. Hargett, 989 F. 2d
847, 850 (5th Cir. 1993), held that "claims of
failure to investigate must show with specificitywhat information would have been obtained with
investigation, and whether, assuming the evidence isadmissible, its admission would have produced a
different result." Jackson fails to specify to theCourt any information or evidence that would have
been discovered or why such evidence would have been
so compelling that it might have had an impact on theguilt-phase or penalty phase of trial. As such,
Jackson's claim fails to comply with the specificity
and full factual pleading requirements of Rule
32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is dueto be summarily dismissed by the Court. Ala. R.Crim. P. 32.7(d).
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would be served by any further proceedings. In his
amended Rule 32 petition, Jackson argues that had trial
counsel not failed to investigate, they would have
found evidence indicating that the murder was the
result of a drug deal and not a robbery. Jackson
argues that had counsel presented such evidence, the
trial court would have denied the State's motion in
limine. However, the record demonstrates that in
objecting to the State's motion in limine, counsel did
present the same evidence that Jackson asserts should
have been presented in response to the State's motion
in limine. Prior to trial, Jackson's counsel argued
that the victim and defendant were drug dealers and the
murder was the result of a drug deal and not a robbery.
Trial counsel further explained to the trial court that
there was evidence that the victim was also known to
sell fake crack. (R. 26-31, 37-38)
Jackson has not presented any new facts that were
not already heard and rejected by this Court in
granting the State's motion in limine. As such, this
claim is due to be summarily dismissed pursuant Ala. R.
10
r
1
111
1
It
I
Crim. P. 32.7(d) because no material issue of law or
fact exists which would entitle Jackson to relief and
no purpose would be served by any further proceedings.
b) Alternatively, this claim is denied.
b) The claim that trial counsel was
ineffective for failing to adequatelymeet with Jackson ' s family.
a) Based on the trial record, this claim is due
to be summarily dismissed pursuant to Ala. R. Crim. P.
32.7(d) because no material issue of law or fact exists
which would entitle Jackson to relief and no purpose
would be served by any further proceedings. In his
amended Rule 32 petition, Jackson argues that had trial
counsel not failed to investigate, they would have
found evidence indicating that the murder was the
result of a drug deal and not a robbery. Jackson
argues that had counsel presented such evidence, the
trial court would have denied the State's motion in
limine. However, the record demonstrates that in
objecting to the State's motion in limine, counsel did
present the same evidence that Jackson now asserts
should have been presented in response to the State's
motion in limine. In response to the State's motion
11
Iin limine, Jackson's counsel argued that the victim and
defendant were drug dealers and the murder was the
result of a drug deal and not a robbery. Trial counsel
further explained to the trial court that there was
evidence that the victim was also known to sell fake
crack. (R. 26-31, 37-38)
Jackson has not presented any new facts that were
11111
I
not already heard and rejected by this Court in
granting the State's motion in limine. As such, this
claim is due to be summarily dismissed pursuant Ala. R.
Crim. P. 32.7(d) because no material issue of law or
fact exists which would entitle Jackson to relief and
no purpose would be served by any further proceedings.
b) Alternatively, this claim is denied.
c) The claim that trial counsel was
ineffective for failing to adequatelymeet with or interview the State' switnesses or other individuals whosetestimony would have undermined theState' s case.
a) Based on the trial record, this claim is due
to be summarily dismissed pursuant to Ala. R. Crim. P.
32.7(d) because no material issue of law or fact exists
which would entitle. Jackson to relief and no purpose
would be served by any further proceedings. In his
12
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1
1111
1
1
amended Rule 32 petition, Jackson argues that had trial
counsel not failed to investigate, they would have
found evidence indicating that the murder was the
result of a drug deal and not a robbery. Jackson
argues that had counsel presented such evidence, the
trial court would have denied the State's motion in
limine. However, the record demonstrates that in
objecting to the State's motion in limine, counsel did
present the same evidence that Jackson asserts should
have been presented in response to the State's motion
in limine. Prior to trial, Jackson's counsel argued
that the victim and defendant were drug dealers and the
murder was the result of a drug deal and not a robbery.
Trial counsel further explained to the trial court that
there was evidence that the victim was also known to
sell fake crack. (R. 26-31, 37-38)
Jackson has not presented any new facts that were
not already heard and rejected by this Court in
granting the State's motion in limine. As such, this
claim is due to be summarily dismissed pursuant Ala. R.
Crim. P. 32.7(d) because no material issue of law or
13
fact exists which would entitle Jackson to relief and
no purpose would be served by any further proceedings.
b) Alternatively, this claim is denied.
d) The claim that trial counsel was
ineffective for failing to locate andinterview Gerard Burdette.
a) Based on the trial record, this claim is due
1
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1t
I
to be summarily dismissed pursuant to Ala. R. Crim. P.
32.7(d) because no material issue of law or fact exists
which would entitle Jackson to relief and no purpose
would be served by any further proceedings. In his
amended Rule 32 petition, Jackson argues that had trial
counsel not failed to investigate, they would have
found evidence indicating that the murder was the
result of a drug deal and not a robbery. Jackson
argues that had counsel presented such evidence, the
trial court would have denied the State's motion in
limine. However, the record demonstrates that in
objecting to the State's motion in limine, counsel did
present the same evidence that Jackson asserts should
have been presented in response to the State's motion
in limine. Prior to trial, Jackson's counsel argued
that the victim and defendant were drug dealers and the
14
1
I
1
1
11
murder was the result of a drug deal and not a robbery.
Trial counsel further explained to the trial court that
there was evidence that the victim was also known to
sell fake crack. (R. 26-31, 37-38)
Jackson has not presented any new facts that were
not already heard and rejected by this Court in
granting the State's motion in limine. As such, this
claim is due to be summarily dismissed pursuant Ala. R.
Crim. P. 32.7(d) because no material issue of law or
fact exists which would entitle Jackson to relief and
no purpose would be served by any further proceedings.
b) Moreover, this claim should be dismissed as a
matter of law because the underlying issue was raised
on direct appeal and held to be without merit. Jackson
v. State, 836 So. 2d 915, 939-941 (Ala. Crim. App.
1999). The Court of Criminal Appeals held that Jackson
was not entitled to a continuance to locate Mr.
Burdette and that reading of his statement into
evidence was satisfactory. Jackson cannot prevail on a
claim of ineffective assistance of counsel when the
Court of Criminal Appeals ruled that the ground for the
claim. was without merit. See Dobyne v. State, 805 So.
15
1
11
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no
manifest injustice under the `plain error' standard on
direct appeal serves to establish a finding of no
prejudice under the test for ineffective assistance of
counsel provided in Strickland v. Washington");
Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be
without merit"). The ground which underlies Jackson's
claim of ineffective assistance of counsel has been
held to be without merit and, as a result, this claim
should be dismissed as a matter of law.
c) Alternatively, this claim is denied.
2. The Claim That Counsel Was Ineffective
For Failing To "Procure Necessary Expert
Assistance".
13. This claim is contained in paragraphs 28-38
and contains separate sub-claims. These claims are
answered as follows:
a)The claim that trial counsel was
ineffective for failing to procure the
assistance of a firearm and projectileexpert.
a) Based on the trial record, this claim is due to
I be summarily dismissed pursuant Ala. R. Crim. P.
16
11111
1
111I
32.7(d) because no material issue of law or fact exists
which would entitle Jackson to relief and no purpose
would be served by any further proceedings. In his
amended Rule 32 petition, Jackson argues that,a firearm
expert could have testified that it was possible that
the "projectile that caused Mr. Moore's death could
have been fired by either the 9 mm gun or the .357
carried by the co-defendants." However, the record
demonstrates that such testimony was introduced and
presented to the jury. On cross-examination of State's
witness Joe Saloom, Jackson's trial counsel brought out
the fact that the bullet recovered from Mr. Moore's
body could have been fired from either a 9 mm pistol or
.357 pistol.
Q. Let me get back to my question. Could it have
come from a nine-millimeter?
A. Yes, sir, it could.
(R. 506)
* * * * * * * * * * *
Q. Dr. Saloom, are you saying that there is no
ninety grain .357 cartridges or nine-millimeter
cartridges on the market? .
17
11
1
111
1
11I
A. No,, sir, I'm not.
(R. 508)
Because testimony was introduced by a firearms
expert that the bullet could have come from a,nine-
millimeter or .357 pistol, Jackson cannot establish
deficient performance or prejudice under Strickland v.
Washington. As such, this claim is due to be dismissed
pursuant to Ala. R. Crirn. P. 32.7(d) because no
material issue of law or fact exists which would
entitle Jackson to relief and no purpose would be
served by any further proceedings.
b) Alternatively, this claim is denied.
b) The claim that trial counsel was
ineffective for failing to secure the
assistance of an expert on eyewitness
identifications.
a) Based on the trial record, this claim is due to
be summarily dismissed pursuant Ala. R. Crim. P.
32.7(d) because no material issue of law or fact exists
which would entitle Jackson to relief and no purpose
would be served by any further proceedings. In his
amended Rule 32 petition, Jackson argues that the State
relied on Leroy Geary to establish that it was the
18
person in the driver's seat who shot the victim.
(Jackson's Amnd. Pet. at 12) Jackson asserts. that an
expert on eyewitness identification would have
testified that under the conditions at the time, any
such identification would have been unreliable.
However, Leroy Geary never identified Jackson as the
1
1
shooter. Moreover , all three co-defendants testified
that it was Jackson who was driving the car at the time
of the murder and who jumped out of the car from the
driver's seat after the crash. (R. 317, 386, 438).
Furthermore, Eric Williams and Christopher Rudolph both
identified Jackson as the driver and shooter in this
case. (R. 386, 438). Far from relying on Leroy Geary's
testimony to establish that the person in the driver's
side of the vehicle that was responsible for murdering
the victim, the State presented multiple eyewitnesses
who testified that Jackson was the shooter.
As such,-even if trial counsel had procured an
expert to testify that Leroy Geary's testimony was
unreliable, other overwhelming evidence existed that
Jackson was the shooter. Therefore, Jackson cannot
establish deficient performance or prejudice under
19
1 Strickland v. Washington. As such, this claim is due
to be dismissed pursuant to Ala. R. Crim. P. 32.7(d)
because no material issue of law or fact exists which
would entitle Jackson to relief and no purpose would be
served by any further proceedings.
b) Alternatively, this claim is denied.
c.)-The claim that trial counsel was
ineffective for failing to procure the
assistance of an investigator and/orsocial worker.
1
1
I
a) This claim is due to be dismissed for failing
to meet the requirements of Rules 32.3 and 32.6(b),
Ala.R.Crim.P. Jackson does not fully disclose the
factual basis of his claim that he was denied effective
assistance of counsel because trial counsel failed to
procure the services of an investigator and/or social
worker. His pleading does not include any facts which
an investigator or social worker would have uncovered
that, if presented by trial counsel, would have
resulted in a different outcome during the guilt phase.
Under Rule 32.7(d), Ala.R.Crim.P., any claim of
ineffective assistance of counsel that is not
sufficiently pleaded is due to be dismissed. ("If the
court- determines that the petition is not sufficiently
20
1
1
specific, or is precluded, or fails to state a claim,
or that no material issue of fact or law exists which
would entitle the petitioner to relief under this rule
and that no purpose would be served by any further
proceedings, the court may either dismiss the petition
or grant leave to file an amended petition").
Jackson's claim fails to comply with the specificity
and full factual pleading requirements of Rule 32.6(b),
32.3, Ala. R. Crim. P.; therefore, it is due to be
summarily dismissed by the Court. Ala. R. Crim. P.
32.7(d).
b) Additionally, Jackson also asserts that an
investigator or social worker would have also assisted
trial counsel in challenging the admissibility of his
statements. This claim should be dismissed as a matter
of law because the underlying issue was raised on
direct appeal and held to be without merit. Ex parte
Jackson, 836 So. 2d 979, 982-985 (Ala. 2002). The
Supreme Court of Alabama found that Jackson's
statements were voluntary and admissible. Jackson
cannot prevail on a claim of ineffective assistance of
counsel when the Supreme Court has ruled that the
21
El
1
1
ground for the claim was without merit. See Dobyne v.
State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A
finding of no manifest injustice under the `plain
error' standard on direct appeal serves to establish a
finding of no prejudice under the test for ineffective
assistance of counsel provided in Strickland v.
Washington"); Callahan v. State, 767 So. 2d 380, 388
(Ala. Crim. App. 1999)("Counsel can not be said to be
ineffective for not raising a claim this court has
already found to be without merit"). The ground which
underlies Jackson's claim of ineffective assistance of
counsel has been held to be without merit and, as a
result, this claim should be dismissed as a matter of
law.
c) Alternatively, this claim is denied.
1
11
d) The claim that trial counsel was
ineffective for failing to procure the
assistance of a mental health expert.
a) This claim is due to be dismissed for failing
to meet the requirements of Rules 32.3 and 32.6(b),
Ala.R.Crim.P. Jackson does not fully disclose the
factual basis of his claim that he was denied effective
assistance of counsel because trial counsel failed to
22
procure the services of a mental health expert. His
pleading does not include any facts which a mental
health expert would have uncovered that, if presented
by trial counsel, would have resulted in a different
outcome during the guilt phase. Nor does Jackson
specifically identify any mental impairments he
11
111I
allegedly suffers from . Under Rule 32.7(d),
Ala.R.Crim.P., any claim of ineffective assistance of
counsel that is not sufficiently pleaded is due to be
dismissed. ("If the court determines that the petition
is not sufficiently specific, or is precluded, or fails
to state a claim, or that no material issue of fact or
law exists which would entitle the petitioner to relief
under this rule and that no purpose would be served by
any further proceedings, the court may either dismiss
the petition or grant leave to file an amended
petition"). Jackson's claim fails to comply with the
specificity and full factual pleading requirements of
Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is
due to be summarily dismissed by the Court. Ala. R.
Crim. P. 32.7(d).
b) Alternatively, this claim is denied.
23
1
1
1
t
e)The claim that trial counsel was
ineffective for failing to procure theassistance of an expert on drug andalcohol abuse.
a) Jackson has failed to allege any facts in
support of this claim in his petition, nor has he
demonstrated or indicated how he was prejudiced by
trial counsel's failure to procure a drug and alcohol
expert. As such, Jackson's claim fails to comply with
the specificity and full factual pleading requirements
...of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it
is due to be summarily dismissed by the Court. Ala. R.
Crim. P. 32.7(d). See, Bracknell v. State, 2003 WL
1949823, *3 (Ala. Crim. App. 2003)("Although Bracknell
specifically identified the acts or omissions on the
part of his trial counsel that he believed constituted
deficient performance, he failed to include in his
petition any facts tending to indicate how those acts
or omissions prejudiced his defense."). Under Rule
32.7(d), Ala.R.Crim.P., any claim of ineffective
assistance of counsel that is not sufficiently pleaded
is due to be dismissed. ("If the court determines that
the petition is not sufficiently specific, or is
24
1
t11
precluded, or fails to state a claim, or that no
material issue of fact or law exists which would
entitle the petitioner to relief under this rule and
that no purpose would be served by any further
proceedings, the court may either dismiss the petition
or grant leave to file an amended petition").
Jackson's claim fails to comply with the specificity
and full factual pleading requirements of Rule 32.6(b),
32.3, Ala. R. Crim. P.; therefore, it is due to be
summarily dismissed by the Court. Ala. R. Crim. P.
32.7(d).
b) Alternatively, this claim is denied.
1t
t
3. The Claim That Counsel Was Ineffective
For Failing To Effectively Challenge The
State's investigation And Presentation Of
The Case.
14. This claim is contained in paragraphs 39-65
and contains numerous sub-claims. These claims are
answered as follows:
a. The claim that trial counsel wasineffective for failing to timelyfile a Youthful Offender Application.
1 a) Based on the trial record, this claim is due to
be summarily dismissed pursuant Ala. R. Crim. P.
25
32.7(d) because no material issue of law or fact exists
1
1
tt
11
which would entitle Jackson to relief and no purpose
would be served by any further proceedings. Even if
trial counsel had presented evidence of Jackson's
upbringing and drug use, his Youthful Offender
Application would have been turned down. As documented
in the pre-sentence investigation report, Jackson had
an extensive criminal record. (C. 12-18) Jackson had
previously been arrested for such felonies as robbery,
burglary, theft, and assault multiple times. (C. 16-17)
Due to the seriousness of Jackson's previous
convictions and the failure of boot camp and other
punishments. to reform his conduct, his Youthful
Offender Application would have been denied even if
counsel had presented evidence cited by Jackson in his
petition.
b) Additionally, this claim is due to be
dismissed for failing to meet the requirements of Rules
32.3 and 32.6(b), Ala.R.Crim.P. Jackson does not
fully disclose the factual basis of his claim that he
was denied effective assistance of counsel because
trial counsel failed to timely file and adequately
26
11t1
1t
argue his Youthful Offender Application. His pleading
does not include any facts which, if presented by trial
counsel, would have resulted in a different outcome
during the guilt phase. ("If the court determines that
the petition is not sufficiently specific, or is
precluded, or fails to state a claim, or that no
material issue of fact or law exists which would
entitle the petitioner to relief under this rule and
that no purpose would be served by any further
proceedings, the court may either dismiss the petition
or grant leave to file an amended petition").
Jackson's claim fails to comply with the specificity
and full factual pleading requirements of Rule 32.6(b),
32.3, Ala. R. Crim. P.; therefore, it is due to be
summarily dismissed by the Court. Ala. R. Crim. P.
32.7(d).
c) Alternatively, this claim is denied.
b. The claim that trial counsel was
ineffective for failing to challengeJackson ' s underlying convictions.
II
a) This claim is due to be dismissed for failing
to meet the requirements of Rules 32.3 and 32.6(b),
Ala.R.Crim.P. Jackson does not disclose the factual
27
11
1
11111
basis of his claim that he was denied effective
assistance of counsel because trial counsel failed to
challenge his underlying convictions. Jackson does not
explain why guilty pleas to the underlying convictions
were not voluntary. ("If the court determines that the
petition is not sufficiently specific, or is precluded,
or fails to state a claim, or that no material issue of
fact or law exists which would entitle the petitioner
to relief under this rule and that no purpose would be
s,_erved by any further proceedings, the court may either
dismiss the petition or grant leave to file an amended
petition"). Jackson's claim fails to comply with the
specificity and full factual pleading requirements of
Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is
due to be summarily dismissed by the Court. Ala. R.
Crim. P. 32.7(d).
b) Alternatively, this claim is denied.
c. The claim that trial counsel was
ineffective for conceding guiltbefore the trial court.
tI
a) This claim is due to be dismissed pursuant to
Ala. R. Crim. P. 32.7(d). Jackson cannot demonstrate
prejudice or that the outcome of the trial would have
28
1It11tt
been different had trial counsel not told the trial
court that they may know where the murder weapon was
located. This information was never related to the
jury, who was charged with deciding Jackson's guilt or
innocence. As such, Jackson cannot satisfy the
prejudice prong as required by Strickland v.
Washington. Therefore, this claim is due to be
summarily dismissed by the Court. Ala. R. Crim. P.
32.7(d).
b) Alternatively, this claim is denied.
d. The claim that trial counsel was
ineffective for shifting the burden
of proof during jury selection.
1
1
a) Based on the trial record, this claim is due to
be summarily dismissed pursuant to Ala. R. Crim. P.
32.7(d) because no material issue of law or fact exists
which would entitle Jackson to relief and no purpose
would be served by any further proceedings. The
record indicates that at the close of testimony during
the guilt phase, the trial court instructed the jury as
to the law:
We are that point in the proceedings where it is
my duty to tell you what the law of this case is
29
and how you will go about arriving at a verdict inthis phase of the case.
11
11t11
1I
(R. 69-70) The trial court went on to explain that it
was the State's burden to prove Jackson's guilt beyond
a reasonable doubt.
And that plea of not guilty places the burden
entirely on the State of Alabama to prove his
guilt beyond a reasonable doubt before you find
him guilty. Because the burden rests entirely on
the State, we say he starts his trial -- Mr.
Jackson starts his trial with a clean slate
presumed not to be guilty because Mr. Jackson doesnot have any burden.
(R. 77-78) Jurors are presumed to follow the trial
court's-instructions. Harrison v. State, 2002 WL
1137708, (Ala. Crim. App. 2002). The trial court's
instructions were thorough and accurate. Therefore,
those instructions eliminated any possible prejudice to
the appellant. Because Jackson cannot demonstrate
prejudice as required by Strickland, this claim is due
to be dismissed pursuant to Ala. R. Crim. P. 32.7(d)
for failing to state a claim upon which relief may be
granted.
b) Alternatively, this claim is denied.
e. The claim that trial counsel wasineffective for failing to remove
30
1
11
1
1
1t
certain jurors and for failing tosecure a jury expert.
a) This claim is due to be dismissed for failing
to meet the requirements of Rules 32.3 and 32.6(b),
Ala.R.Crim.P. Jackson does not disclose the factual
basis of his claim. Jackson does not identify any
jurors that trial counsel should have removed nor does
Jackson explain how a jury expert would have assisted
in voir dire. ("If the court determines that the
petition is not sufficiently specific, or is precluded,
or fails to state a claim, or that no material issue of
fact or law exists which would entitle the petitioner
to relief under this rule and that no purpose would be
served by any further proceedings, the court may either
dismiss the petition or grant leave to file an amended
petition"). Jackson's claim fails to comply with the
specificity and full factual pleading requirements of
Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is
due to be summarily dismissed by the Court. Ala. R.
Crim. P. 32.7(d).
b) Alternatively, this claim is denied.
31
I
1
1I1I1
11I
f. The claim that trial counsel wasineffective for failing to,object tothe State' s challenges for cause.
a) This claim should be dismissed as a matter of
law because the underlying issue was raised on direct
appeal and held to be without merit. Jackson v. State,
836 So. 2d 915, 951-953 (Ala. Crim. App. 1999). The
Court of Criminal Appeals concluded that State's
challenges for cause were properly granted. Jackson
cannot prevail on a claim of ineffective assistance of
counsel when the Court of Criminal Appeals has ruled
that the ground for the claim was without merit. See
Dobyne v. State, 805 So. 2d 733, 744 (Ala. Crim. App.
2000)("A finding of no manifest injustice under the
`plain error' standard on direct appeal serves to
establish a finding of no prejudice under the test for
ineffective assistance of counsel provided in
Strickland v. Washington"); Callahan v. State, 767 So.
2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be
said to be ineffective for not raising a claim this
court has already found to be without merit"). The
ground which underlies Jackson's claim of ineffective
assistance of counsel has been held to be without merit
32
1
1111
11
I1
1
and, as a result, this claim should be dismissed as a
matter of law.
b) Alternatively, this claim is denied.
9- The claim that trial counsel was
ineffective for failing to adequately
raise and argue Batson and J.E.B.
objections.
a) This claim should be dismissed as a matter of
law because the underlying issue was raised on direct
appeal and held to be without merit. Jackson v. State,
836 So. 2d 915, 946-948 (Ala. Crim. App. 1999). The
Court of Criminal Appeals held that no Batson or J.E.B.
violations occurred. Jackson cannot prevail on a claim
of ineffective assistance of counsel when the Court of
Criminal Appeals has ruled that the ground for the
claim was without merit. See Dobyne v. State, 805 So.
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no
manifest injustice under the `plain error' standard on
direct appeal serves to establish a finding of no
prejudice under the test for ineffective assistance of
counsel provided in Strickland v. Washington");
Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be
33
E
1111111
1
1I
without merit"). The ground which underlies Jackson's
claim of ineffective assistance of counsel has been
held to be without merit and , as a result , this claim
should be dismissed as a matter of law.
b) Alternatively, this claim is denied.
h. The claim that trial counsel wasineffective for failing to adequatelyinvestigate and cross-examine certainwitnesses.
a) This claim is due to be dismissed for failing
to meet the requirements of Rules 32.3 and 32.6(b),
Ala.R.Crim.P. Jackson does not disclose the factual
basis of his claim. Jackson does not identify
testimony, evidence, or questions that trial counsel
should have elicited in their investigation or on
cross-examination. Instead, Jackson only makes bare
allegations that trial counsel's investigation and
cross-examination of witnesses was insufficient. ("If
the court determines that the petition is not
sufficiently specific, or is precluded, or fails to
state a claim, or that no material issue of fact or law
exists which would entitle the petitioner to relief
under this rule and that no purpose would be served by
any further proceedings, the court may either dismiss
34
I
1
the petition or grant leave to file an amended
petition"). Jackson's claim fails to comply with the
specificity and full factual pleading requirements of
Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is
due to be summarily dismissed by the Court. Ala. R.
Crim. P. 32.7(d).
b) Alternatively, this claim is denied.
i. The claim that trial counsel was
ineffective for failing to challenge
the voluntariness of Jackson's
statements in front of the jury.
1
a) This claim should be summarily dismissed
because this Court is without jurisdiction to consider
this claim. This claim does not relate back to any
claim in the original Rule 32 petition and was only
alleged after the limitation's period set forth in Rule
32.2(c) had expired. Because his certificate of
judgement was issued on May 31, 2002, Jackson only had
until July 31, 2003, to file his Rule 32 petition.
Jackson timely filed his original Rule 32 petition on
July 31, 2003. Jackson did not file his amended Rule
32 petition until March 31, 2004. As such,. any claims
in his amended petition that are new and different
35
claims, and, thus, do not relate back, are time-barred.
Charest v. State, 2002 WL 734306, *2 (Ala. Crim. App.
Apr. 26, 2002). Jackson's claim that trial counsel
should have challenged the voluntariness of his
statements before the jury is a new claim that does not
relate back to his original and timely filed petition.
1I
1
Therefore, this claim is due to be dismissed as time-
barred by Rule 32,2(c).
b) Alternatively, this claim should be dismissed
as a matter of law because the underlying issue was
raised on direct appeal and held to be without merit.
Ex parte Jackson, 836 So. 2d 979, 982-985 (Ala. 2002).
The Supreme Court of Alabama found that Jackson's
statements were voluntary and admissible. Jackson
cannot prevail on a claim of ineffective assistance of
counsel when the Supreme Court has ruled that the
ground for the claim was without merit. See Dob rie v.
State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000) ("A
finding of no manifest injustice under the `plain
error' standard on direct appeal serves to establish a
finding of no prejudice under the test for ineffective
assistance of counsel provided in Strickland v.
36
Washington"); Callahan v. State, 767 So. 2d 380, 388
(Ala. Crim. App. 1999)("Counsel can not be said to be
ineffective for not raising a claim this court has
already found to be without merit"). The ground which
underlies Jackson's claim of ineffective assistance of
counsel has been held to be without merit and, as a
1
1
1
result, this claim should be dismissed as a matter of
law.
c) Alternatively, this claim is denied.
The claim that trial counsel wasineffective for failing to challengethe State's expert ballisticevidence.
a) Based on the trial record, this claim is due to
be summarily dismissed pursuant to Ala. R. Crim. P.
32.7(d) because no material issue of law or fact exists
which would entitle Jackson to relief and no purpose
would be served by any further proceedings. In his
amended Rule 32 petition, Jackson argues that counsel
was ineffective in its cross-examination of the State's
expert on ballistics evidence. Jackson alleges that
trial counsel should have established that the bullet
that killed the victim could have come from a different
gun. However, the record demonstrates that such
37
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.testimony was introduced and presented to the jury. On
cross-examination of State's witness Joe Saloom,
Jackson's trial counsel brought out the fact that the
bullet recovered from Mr. Moore's body could have been
fired from either a 9 mm pistol or .357 pistol.
Q. Let me get back to my question. Could it have
come from a nine-millimeter?
A. Yes, sir, it could.
(R. 506)
Q. Dr. Saloom, are you saying that there is no
ninety grain .357 cartridges or nine-millimeter
cartridges on the market?
A. No, sir, I'm not.
(R. 508)
Because testimony was introduced by a firearms
expert that the bullet could have come from a nine-
millimeter or .357 pistol, Jackson cannot establish
deficient performance or prejudice under Strickland v.
Washington. As such, this claim is due to be dismissed
pursuant to Ala. R. Crim. P. 32.7(d) because no
material issue of law or fact exists which would
38
entitle Jackson to relief and no purpose would be
iI
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served by any further proceedings.
b) Alternatively, this claim is due to be
dismissed for failing to meet the requirements of Rules
32.3 and 32.6(b), Ala.R.Crim.P. Jackson does not
disclose the factual basis of his claim. Jackson does
not specify what further testimony, or questions on
cross-examination that trial counsel should have
elicited. Instead, Jackson only makes bare allegations
that trial counsel's investigation and cross-
examination were insufficient. ("If the court
determines that the petition is not sufficiently
specific, or is precluded, or fails to state a claim,
or that no material issue of fact or law exists which
would entitle the petitioner to relief under this rule
and that no purpose would be served by any further
proceedings, the court may either dismiss the petition
or grant leave to file an amended petition").
Jackson's claim fails to comply with the specificity
and full factual pleading requirements of Rule 32.6(b),
32.3, Ala. R. Crim. P.; therefore, it is due to be
39
1 summarily dismissed by the Court. Ala. R. Crim. P.
32.7 (d) .
t) Alternatively, this claim is denied.
k. The claim that trial counsel wasineffective for failing to object toirrelevant and prejudicial evidence.
11
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a) This claim should be dismissed as a matter of
law because the underlying issue was raised on direct
appeal and held to be without merit. Jackson v. State,
836 So. 2d 915, 950-951 (Ala. Crim. App. 1999). The
Court of Criminal Appeals held that photos and video
were properly admitted. Jackson cannot prevail on a
claim of ineffective assistance of counsel when the
Court of Criminal Appeals has ruled that the ground for
the claim was without merit. See Dobyne v. State, 805
So. 2d 733, 744 (Ala. Crirn. App. 2000)("A finding of no
manifest injustice under the `plain error' standard on
direct appeal serves to establish a finding of no
prejudice under the test for ineffective assistance of
counsel provided in Strickland v. Washington");
Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be
40
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without merit"). The ground which underlies Jackson's
claim of ineffective assistance of counsel has been
held to be without merit and, as a result, this claim
should be dismissed as a matter of law.
b) Alternatively, this claim is denied.
1. The claim that trial counsel was
ineffective for failing to object to
evidence without the proper chain ofcustody.
a) This claim should be dismissed as a matter of
law because the underlying issue was raised on direct
appeal and held to be without merit. Jackson v. State,
836 So. 2d 915, 953-955 (Ala. Crim. App. 1999). The
Court of Criminal Appeals held that the bullet was
properly admitted into evidence. Jackson cannot
prevail on a claim of ineffective assistance of counsel
when the Court of Criminal Appeals has ruled that the
ground for the claim was without merit. See Dobyne v.
State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A
finding of no manifest injustice under the `plain
error' standard on direct appeal serves to establish a
finding of no prejudice under the test for ineffective
assistance of counsel provided in Strickland v.
Washington"); Callahan v. State, 767 So. 2d 380, 388
41
1
1
(Ala. Crim. App. 1999)("Counsel can not be said to be
ineffective for not raising a claim this court has
already found to be without merit"). The ground which
underlies Jackson's claim of ineffective assistance of
counsel has been held to be without merit and, as a
result, this claim should be dismissed as a matter of
law.
b) Alternatively, this claim is denied.
111t1
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M. The claim that trial counsel was
ineffective for failing to present a
viable defense theory.
a) Based on the trial record, this claim is due to
be summarily dismissed pursuant Ala. R. Crim. P.
32.7(d) because Jackson cannot demonstrate deficient
performance or prejudice as required by Strickland v.
Washington. As a result, no material issue of law or
fact exists which would entitle Jackson to relief and
no purpose would be served by any further proceedings.
The trial record clearly demonstrates that trial
counsel did have a viable theory of defense.
Specifically, trial counsel's theory of defense was
that Jackson did not fire the fatal shot. On cross-
examination of State's witness Joe Saloom, Jackson's
42
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trial counsel brought out the fact that the bullet
recovered from Mr. Moore's body could have been fired
from either a 9 mm pistol or .357 pistol. (R. 508)
During closing argument, Jackson's trial counsel re-
iterated that someone else may have fired the fatal
shot. (R. 56-57) Clearly, trial counsel presented a
viable theory of defense.
Furthermore, Jackson's assertions that trial
counsel should have presented evidence that the murder
was the result of a drug deal is without merit. Prior
to trial, Jackson's counsel argued that the victim and
defendant were drug dealers and the murder was the
result of a drug deal and not a robbery. Trial counsel
further explained to the trial court that there was
evidence that the victim was also known to sell fake
crack. (R. 26-31, 37-38) The trial court rejected
trial counsel's arguments and granted the State's
motion in limine preventing trial counsel from
presenting any such evidence. The trial court's
granting of the motion in limine was upheld on appeal.
Jackson v. State, 836 So. 2d 915, 929-931 (Ala. Crim.
App.-1999). Jackson has not presented any new facts
43
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concerning the "drug deal gone bad" theory that was not
already heard and rejected by this Court and by the
Court of Criminal Appeals. As such, this claim is due
to be dismissed pursuant to Ala. R. Crim. P. 32.7(d)
because no material issue of law or fact exists which
would entitle Jackson to relief and no purpose would be
served by any further proceedings.
b) Alternatively, this claim is denied.
n. The claim that trial counsel was
ineffective for failing to give an
adequate closing statement.
a) Based on the trial record, this claim is due
to be summarily dismissed pursuant to Ala. R. Crim. P.
32.7(d) because Jackson cannot demonstrate deficient
performance or prejudice as required by Strickland v.
Washington. As a result, no material issue of law or
fact exists which would entitle Jackson to relief and
no purpose would be served by any further proceedings.
Jackson argues that trial counsel should have argued
during closing that someone else may have fired the
fatal shots and that the murder was not the result of a
robbery, but a drug deal. In fact, during closing
argument, Jackson's trial counsel did argue that
44
someone else may have fired the fatal shot. (R. 56-57)
Furthermore, Jackson's assertions that trial
counsel should have presented evidence that the murder
was the result of a drug deal is without merit. Prior
to trial, Jackson's counsel argued that the victim and
defendant were drug dealers and the murder was the
1
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1
result of a drug deal and not a robbery. Trial counsel
further explained to the trial court that there was
evidence that the victim was also known to sell fake
crack. (R. 26-31, 37-38) The trial court rejected
trial counsel's arguments and granted the State's
motion in limine preventing trial counsel from
presenting any such evidence. The trial court's
granting of the motion in limine was upheld on appeal.
Jackson v. State, 836 So. 2d 915, 929-931 (Ala. Crim.
App. 1999). Jackson has not presented any new facts
concerning the "drug deal gone bad" theory that was not
already heard and rejected by this Court and by the
Court of Criminal Appeals. Therefore, Jackson.'s trial
counsel was prevented from arguing any such theory. As
such, this claim is due to be dismissed pursuant to
Ala. R. Crim. P. 32.7(d) Jackson cannot demonstrate
45
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deficient performance or prejudice based on counsel's
alleged failure to argue that someone else fired the
fatal shot or that the murder was the result of a drug
deal.
'b) Alternatively, this claim is denied.
o. The claim that trial counsel was
ineffective for failing to ensure acomplete record.
a) This claim is due to be dismissed for failing
to meet the requirements of Rules 32.3 and 32.6(b),
.Ala.R.Crim.P. Jackson fails to state how he was
prejudiced by trial counsel's failure to ensure a
complete record. As a result, Jackson has not provided
any information that would show that the outcome of the
trial would have been different had trial counsel
ensured a complete record. As such, Jackson's claim
fails to comply with the specificity and full factual
pleading requirements of Rule 32.6(b), 32.3, Ala. R.
Crim. P.; therefore, it is due to be summarily
dismissed by the Court. Ala. R. Crim. P. 32.7(d). See,
Bracknell v. State, 2003 WL 1949823, *3 (Ala. Crim.
App. 2003)("Although Bracknell specifically identified
the acts or omissions on the part of his trial counsel
46
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that he believed constituted deficient performance, he
failed to include in his petition any facts tending to
indicate how those acts or omissions prejudiced his
defense.").
b) Alternatively, this claim is denied.
4. The Claim That Counsel Was Ineffective For
Failing To Request A Jury Instruction On
The Lesser Included Offense Of Robbery,
And For Failing To Object To The Trial
Court ' s Failure To Give An Instruction On
Robbery Sua Sponte.
15. This claim is contained in paragraph 66 and is
answered as follows:
(a) This claim is without merit and should be
dismissed as a matter of law because the underlying
issue was raised on direct appeal and held to be
without merit. Jackson v. State, 836 So. 2d 915, 938-
939 (Ala. Crim. App. 1999): Jackson cannot prevail on
a claim of ineffective assistance of counsel when the
Court of Criminal Appeals ruled that the ground for the
claim was without merit. See Dobyne v. State, 805 So.
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no
manifest injustice under the `plain error' standard on
direct appeal serves to establish a finding of no
47
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I
prejudice under the test for ineffective assistance of
counsel provided in Strickland v. Washington")
Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be
without merit"). The ground which underlies Jackson's
claim of ineffective assistance of counsel has been
held to be without merit and, as a result, this claim
should be dismissed as a matter of law.
Fb) -Alternatively, this claim is denied.
5. The Claim That Counsel Was Ineffective For
Failing To Object To The Trial Court's
Leaving The Courtroom While The Jury
Watched Jackson ' s Videotaped Statement To
Police.
16. This claim is contained in paragraph 67 and is
answered as follows:
(a) This claim is without merit and should be
dismissed as a matter of law because the underlying
issue was raised on direct appeal and held to be
without merit. Jackson v. State, 836 So. 2d 915, 941-
943 (Ala. Crim. App. 1999). Jackson cannot prevail on
a claim of ineffective assistance of counsel when the
Court of Criminal Appeals ruled that the ground for the
48
claim was without merit. See Dobyne v. State, 805 So.
1
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tt111
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1
2d 733, 744 (Ala. Crim. App. 2000) ("A finding of no
manifest injustice under the `plain error' standard on
direct appeal serves to establish a finding of no
prejudice under the test for ineffective assistance of
counsel provided in Strickland v. Washington");
Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be
without merit"). The ground which underlies Jackson's
claim of ineffective assistance of counsel has been
held to be without merit and, as a result, this claim
should be dismissed as a matter of law.
(b) Alternatively, this claim is denied.
6. The Claim That Counsel Was Ineffective For
Failing To Object To The Trial Court's
Instruction On Reasonable Doubt.
17. This claim is contained in paragraph 68 and
is answered as follows:
(a) This claim is without merit and should be
dismissed as a matter of law because the underlying
issue was raised on direct appeal and held to be
without merit. Jackson v. State, 836 So. 2d 915, 948-
49
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1
950.(Ala. Crim. App. 1999). Jackson cannot prevail on
a claim of ineffective assistance of counsel when the
Court of Criminal Appeals ruled that the ground for the
manifest injustice under the `plain error' standard on
claim was without merit. See Dob yne v. State,.805 S
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no
direct appeal serves to establish a finding of no
prejudice under the test for ineffective assistance of
counsel provided in Strickland v. Washington");
Callahan v..St.ate, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be
without merit"). The ground which underlies Jackson's
claim of ineffective assistance of counsel has been
held to be without merit and, as a result, this claim
should be dismissed as a matter of law.
(b) Alternatively, this claim is denied.
7. The Claim That Counsel Was Ineffective For
Failing To Insure That The Jury Was
Instructed About The Accomplice
Corroboration Requirement.
18. This claim is contained in paragraphs 69-70
Iand is answered as follows:
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(a) This claim is without merit and should be
dismissed as a matter of law because the underlying
issue was raised on direct appeal and held to be
without merit. Jackson v. State, 836 So. 2d 9.15, 946
(Ala. Crim. App. 1999). Jackson cannot prevail on a
claim of ineffective assistance of counsel when the
Court of Criminal Appeals ruled that the ground for the
claim was without merit. See Dobyne v. State, 805 So.
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no
manifest injustice under the `plain error' standar.d.on.
direct appeal serves to establish a finding of no
prejudice under the test for ineffective assistance of
counsel provided in Strickland v. Washington");
Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be
without merit"). The ground which underlies Jackson's
claim of ineffective assistance of counsel has been
held to be without. merit and, as a result, this claim
should be dismissed as a matter of law.
(b) Alternatively, this claim is denied.
8. The Claim That The Cumulative Effect OfCounsel ' s Ineffective Performance At The
51
Guilt Phase Denied Jackson The Right To TheEffective Assistance Of Counsel.,
1
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19. This claim is contained in paragraph 71 and is
answered as follows:
(a) This claim should be dismissed because, as a
matter of law, this claim cannot be evaluated under
Strickland v. Washington, 466 U.S. 668, 690 (1984).
Strickland requires the petition to identify specific
acts or omissions on the part of trial counsel. The
United States Supreme Court states in Strickland:
A convicted defendant making a claim
of ineffective assistance of counselmust identify the acts or omissionsof counsel that are alleged not tohave been the result of reasonableprofessional judgment. The courtmust then determine whether, in
light of all the circumstances, theidentified acts or omissions wereoutside the wide range of
professionally competent assistance.
Strickland, 466 U.S. at 690 (emphasis added). This
passage from Strickland supports the proposition that
the United States Supreme Court has required that
specific instances of ineffective assistance of counsel
be alleged, and a claim that the cumulative effect of
alleged errors equals ineffective assistance of counsel
is insufficient.
52
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1111
1
Moreover, Rule 32.7(d) states:
If the court determines that the
petition is not sufficiently
specific, or is precluded, or failsto state a claim, that no materialissue of fact or law exists whichwould entitle the petitioner to
relief under this rule and that no
purpose would be served by any
further proceedings, the court may
either dismiss the petition or grantleave to file an amended petition.
Ala. R. Crim. P. 32.7(d). (emphasis added). Thus,
this claim should be dismissed because it does not
assert a specific claim of ineffective assistance of
counsel as required by Strickland and, accordingly,
fails to present a material issue of law or fact under
Rule 32.7(d).
(b) Alternatively, this claim is denied.
B. The Claim That Jackson Was Denied EffectiveAssistance Of Counsel During The Penalty AndSentencing Phases of His Trial.
20. This claim is contained in paragraphs 72-150
and contains numerous sub-claims. These claims are
answered as follows3:
3To the extent that paragraphs 72-73 are meant as an
independent claim for relief, they do not sufficiently
state a claim upon which relief may be granted pursuantto Ala. R. Crim. P. 32.3, 32.6(b). Jackson fails to
identify any evidence or information that would have
53
i.The Claim That Counsel Was Ineffective For
Failing To Investigate And Present "Even APortion Of The Available Mitigating
Evidence " At Both The Penalty AndSentencing Phases.
21. This claim is contained in paragraphs 74-135
and is answered as follows:
a) This claim is denied.
2. The Claim That Counsel Was Ineffective
For Failing To Develop And Present A
Penalty And Sentencing Phase Strategy
That Would Convince The Trial Court That
Life Without Parole Was The Appropriate
Sentence.
11
22. This claim is contained in paragraphs 136-139
and is answered as follows:
a) This claim is denied.
3. The Claim That Counsel Was Ineffective
For Failing To Obtain And Present
Independent Expert Testimony At The
Penalty And Sentencing Phases.
been discovered that would have changed the outcome ofthe trial. As such, Jackson's claim fails to complywith the specificity and full factual pleading
requirements of Rule 32.6(b), 32.3, Ala. R. Cram. P.;
therefore, it is due to be summarily dismissed by theCourt. Ala. R. Crim. P. 32.7(d). See, Bracknell v.
State, 2003 WL 1949823, *3 (Ala. Crim. App.
2003)("Although Bracknell specifically identified the
acts or omissions on the part of his trial counsel thathe believed constituted deficient performance, he
failed to include in his petition any facts tending toindicate how those acts or omissions prejudiced hisdefense.").
54
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23. This claim is contained in paragraphs 140-146.
Jackson alleges that counsel was ineffective for
failing to procure the services of an investigator,
social worker or mitigation specialist, mental health
expert, and an expert on drug and alcohol abuse. This
claim is answered as follows:
a) Jackson fails to state how he was prejudiced
by trial counsel's failure to procure an investigator,
social worker or mitigation specialist, mental health
expert, and an expert on drug and alcohol abuse.
Jackson has not specified what these experts would have
testified to or how their testimony would have altered
the outcome of the penalty phase. Jackson fails to
identify any evidence or information that would have
been discovered that would have changed the outcome of
the trial. As such, Jackson's claim fails to comply
with the specificity and full factual pleading
requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.;
therefore, it is due to be summarily dismissed by the
Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v.
State, 2003 WL 1949823, *3 (Ala. Crim. App.
2003).("Although Bracknell specifically identified the
55
1
acts or omissions on the part of his trial counsel that
he believed constituted deficient performance, he
failed to include in his petition any facts tending to
indicate how those acts or omissions prejudiced his
defense.").
b) Alternatively, this claim is denied.
4. The Claim That Counsel Was Ineffective
For Failing To Object To Alabama ' s Method
Of Execution As Cruel And Unusual
Punishment.
11
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24. This claim is contained in paragraph 147 and
is answered as follows:
a) This claim is due to be dismissed because
there is no material issue of fact or law. Ala. R.
Crim. P. 32.7(d). On July 1, 2002, the Alabama
Legislature modified Alabama law to provide for
execution by lethal injection unless the person elects
to be executed by electrocution. Furthermore, this
claim should also be dismissed pursuant to Ala. R.
Crim. P. 32.7(d) for failure to state a claim upon
which relief can be granted because lethal injection
has never been found to be cruel and unusual
punishment. See Poland v. Stewart, 117 F. 3d 1094,
1105 (9th Cir. 1997)(Lethal injection not found to be
56
1cruel and unusual punishment). Rather, offering lethal
injection as a method of execution has been deemed to
correct any possibility of cruel and unusual punishment
in regards to other methods of execution. See Stewart
v. LeGrand, 526 U.S. 115, 119 (1999). Thus, this claim
is due to be dismissed.
b) Alternatively, this claim is denied.
5. The Claim That Counsel Was Ineffective
For Failing To Object To Double Counting
Robbery As An Element Of The Capital
Offense And As An Aggravating
Circumstance.
1
25. This claim is contained in paragraph 148 and
is answered as follows:
a) This claim is without merit and should be
dismissed as a matter of law because the underlying
issue was raised on direct appeal and held to be
without merit. Jackson v. State, 836 So. 2d 915, 958-
959 (Ala. Crim. App. 1999). Jackson cannot prevail on
a claim of ineffective assistance of counsel when the
Court of Criminal Appeals ruled that the ground for the
claim was without merit. See Dobyne v. State, 805 So.
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no
manifest injustice under the `plain error' standard on
57
direct appeal serves to establish a finding of no
11
1
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I
prejudice under the test for ineffective assistance of
counsel provided in Strickland v. Washington");
Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be
without merit"). The ground which underlies Jackson's
claim of ineffective assistance of counsel has been
held to be without merit and, as a result, this claim
should be dismissed as a matter of law pursuant to Rule
32.7(d) of the Ala. R. Crim. F.
b) Alternatively, this claim is denied.
6. The Claim That Counsel Was. Ineffective
For Failing To Object To The Death
Penalty In This Case As Disproportionate.
26. This claim is contained in paragraph 149 and
is answered as follows:
a) This claim is without merit and should be
dismissed as a matter of law because the underlying
issue was raised on direct appeal and held to be
without merit. Jackson v. State, 836 So. 2d 915, 965
(Ala. Crim. App. 1999). Jackson cannot prevail on a
claim of ineffective assistance of counsel when the
58
11
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111
Court of Criminal Appeals ruled that the ground for the
claim was without merit. See Dobyne v. State, 805 So.
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no
manifest injustice under the `plain error' standard on
direct appeal serves to establish a finding of no
prejudice under the test for ineffective assistance of
counsel provided in Strickland v. Washington");
Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be
without merit"). The ground which underlies Jackson's
claim of ineffective assistance of counsel has been
held to be without merit and, as a result, this claim
should be dismissed as a matter of law pursuant to Rule
32.7(d) of the Ala. R. Crim. P.
b) Alternatively, this claim is denied.
7. The Claim That The Cumulative Effect Of
Counsels ' Ineffective Performance At The
Penalty And Sentencing Phases Denied
Jackson The Right To The EffectiveAssistance Of Counsel.
27. This claim is contained in paragraph 150 and
is answered as follows:
59
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a) This claim should be dismissed pursuant to
Ala. R. Crim. P. 32.7(d) as a matter of law because
this claim cannot be evaluated under Strickland v.
Washington, 466 U.S. 668, 690 (1984). Strickland
requires the petition to identify specific acts or
omissions on the part of trial counsel. The United
States Supreme Court states in Strickland:
A convicted defendant making a claim
of ineffective assistance of counselmust identify the acts or omissionsof counsel that are alleged not tohave been the result of reasonableprofessional judgment. The courtmust then determine whether, in
light of all the circumstances, the
identified acts or omissions wereoutside the wide range of
professionally competent assistance.
Strickland, 466 U.S. at 690 (emphasis added). This
passage from Strickland supports the proposition that
the United States Supreme Court has required that
specific instances of ineffective assistance of counsel
be alleged, and a claim that the cumulative effect of
alleged errors equals ineffective assistance of counsel
is insufficient.
Moreover, Rule 32.7(d) states:
If the court determines that thepetition is not sufficiently
60
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1I
specific, or is precluded, or failsto state a claim, that no materialissue of fact or law exists whichwould entitle the petitioner torelief under this rule and that nopurpose would be served by anyfurther proceedings, the court mayeither dismiss the petition or grantleave to file an amended petition.
Ala. R. Crim. P. 32.7(d). (emphasis added). Thus,
this claim should be dismissed because it does not
assert a specific claim of ineffective assistance of
counsel as required by Strickland and, accordingly,
fails to present a material issue of law or fact under
Rule 32.7(d).
b) Alternatively, this claim is denied.
II. THE CLAIM THAT JUROR MISCONDUCT DURING THE TRIAL
DEPRIVED JACKSON OF HIS RIGHTS TO A FAIR TRIAL,
DUE PROCESS , AND A RELIABLE SENTENCE
DETERMINATION.
28. This claim is contained in paragraphs 151-163
and contains numerous allegations of juror misconduct.
These claims are answered collectively as follows:
a) These claims are procedurally barred from
review because they could have been but were not raised
at trial. Rule 32.2(a)(3), Ala.R.Crim.P. and Alabama
caselaw provide that relief cannot be given on a claim
which could have been raised or addressed at trial but
61
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was not. See e.g., Daniels v. State, 650 So. 2d 544,
551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 So.
2d 167, 171 (Ala. 1989).
b) These claims are procedurally barred.from
review because they could have been but were not raised
on appeal. Rule 32.2(a)(5), Ala.R.Crim.P. and Alabama
caselaw provide that relief cannot be given on a claim
that could have been raised or addressed on appeal but
was not. See e.g., Daniels v. State, supra; Ma wood v.
State, 791 F. 3d 1428, 1444 (11th Cir. 1986); Coulter
v. State, 494 So. 2d 895, 898, 907-08 (Ala. Crim.
App.), cert. denied, 494 So. 2d 895 (Ala. 1996).
c) Additionally, in paragraph 156, Jackson
alleges that Juror Barbara Endsley determined that
Jackson should be sentenced to death prior to the
penalty phase of the trial. This claim is without
merit and is due to dismissed based on the record
pursuant to Rule 32.7(d). The jury unanimously
recommended that Jackson be sentenced to life without
the possibility of parole. (R. 599) As such, Jackson's
allegation regarding Juror Endsley is obviously without
merit-and due to be dismissed based on the record.
62
d) Alternatively, these claims are denied.
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III. THE CLAIM THAT THE STATE WITHHELD FAVORABLE
EVIDENCE FROM THE DEFENSE THUS VIOLATING JACKSON'S
FEDERAL AND STATE RIGHTS.
29. This claim is contained in paragraphs 164-168,
and contains several allegations of Brady violations by
the State. Specifically, Jackson alleges that the
State:
1) entered into deals or agreements with co-
defendants, in which in exchange for their
testimony, they would receive lesser
sentences;
2) withheld evidence involving an individual by
the name of Patrick Stinson;
3) withheld a copy of a crime scene diagram drawn
by Victoria Moss;
4) withheld a complaint filed by A.C. Porterfield
concerning three men on his property;
5) withheld offense reports or interviews with
Roderick Crawford;
6) withheld test or examination results performed
on both cars involved in this case;
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7) withheld-information provided by Latrice
Walker.
These claims are answered collectively as follows:
a) Jackson's claims are procedurally barred from
review because they could have been but were not raised
at trial. Rule 32.2(a)(3), Ala.R.Crim.P. and Alabama
caselaw provide that relief cannot be given on a claim
which could have been raised or addressed at trial but
was not. See e.2., Daniels v. State, 650 So. 2d 544,
551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 S
2d 167, 171 (Ala. 1989).
b) These claims are also procedurally barred
from review because they could have been but were not
raised on appeal. Rule 32.2(a)(5), Ala.R.Crim.P. and
Alabama caselaw provide that relief cannot be given on
a claim that could have been raised or addressed on
appeal but was not. See e.g., Daniels v. State, supra;
Ma wood v. State, 791 F. 3d 1428, 1444 (11th Cir.
1986); Coulter v. State, 494 So. 2d 895, 898, 907-08
(Ala. Crim. App.), cert. denied, 494 So. 2d 895 (Ala.
1996).
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c) Additionally, the Brady allegations are due to
be dismissed as insufficiently plead. Jackson states
that "evidence introduced at trial and in the records
that Mr. Jackson has received strongly indicates that
additional discoverable material exists". (Jackson's
Amd. Pet. at 65) Far from actually asserting that such
violations took place, Jackson has only alleged that
they may exist. Furthermore, Jackson has not
specifically explained how any of the evidence
allegedly withheld from the defense was either
favorable or exculpatory to his defense. For example,
Jackson alleges that a witness drew a diagram of the
crime scene and that it was not disclosed to the
defense. However, Jackson does not explain in the
petition how this diagram is either favorable or
exculpatory. Another example involves Jackson's claim
that law enforcement impounded both the cars involved
in the murder. Jackson argues that testing may have
been done on the vehicles which was never disclosed to
the defense. Again, Jackson fails to explain how or
why such testing, if it even exists, is favorable or
exculpatory. All of Jackson's Brady claims lack any
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statement as to why the allegedly suppressed evidence
is either favorable, exculpatory, or even discoverable.
As such, Jackson's claim fails to comply with the
specificity and full factual pleading requirements of
Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is
due to be summarily dismissed by the Court. Ala. R.
Crim. P. 32.7(d). Ala. R. Crim. P. 32.7(d).
d) Jackson's claim that the State suppressed
deals or agreements with the co-defendants in this case
is due to be dismissed pursuant to Rule 32.7(d) based
on the record at trial. Jackson's three co-defendants-
- Antonio Barnes, Eric Williams, and Christopher
Rudolph -- all testified at trial against Jackson. On
direct examination and under oath, all three stated
that they were offered nothing by the State in exchange
for their testimony, no deal or agreements were made in
exchange for their testimony, no promises were made and
that they were only asked to tell the truth. (R. 300,
369-370, R. 424) In his amended petition, Jackson has
offered no facts to support his bare allegation that
the State suppressed deals or agreements with the co-
defendants. As such, this claim is due to be summarily
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dismissed pursuant Ala. R. Crim. P. 32.7(d) because no
material issue of law or fact exists which would
entitle Jackson to relief and no purpose would be
served by any further proceedings.
e) Alternatively, these allegations fail to state
claims upon which relief may be granted even if plead
as newly discovered evidence. These claims fail to
satisfy the elements for newly discovered material.
Ala. R. Crim. P. 32.1(e) requires the following
elements to be met in a.claim of newly discovered
evidence:
(1) The facts relied upon were not known by thepetitioner or the petitioner's counsel at the timeof trial or sentencing or in time to file a
posttrial motion pursuant to Rule 24, or in timeto be included in any previous collateral
proceeding and could not have been discovered by
any of those times through the exercise ofreasonable diligence;
(2) The facts are not merely cumulative to otherfacts that were known;
(3) The facts do not merely amount to impeachmentevidence;
(4) If the facts had been known at the time of
trial or of sentencing, the result probably wouldhave been different; and
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(5) The facts establish that the petitioner isinnocent of the crime for which the petitioner was
convicted or should not-have received the sentence
67
that the petitioner received.
Ala. R. Crim. P. 32.1(e). Jackson cannot satisfy
the third or fifth element of 32.1(e). Even if the
allegations in this claim were true, they would not
establish that Jackson is innocent of the crime for
which he was convicted, but would rather amount to mere
1
impeachment evidence. As such, this claim fails to
state a claim upon which relief may granted or that
would entitle Jackson to relief. Thus, this claim is
due to be summarily dismissed pursuant to Ala. R. Crim.
P. 32.7(d).
f) Alternatively, this claim is denied.
IV. THE CLAIM THAT THE IMPOSITION OF THE DEATH PENALTY
ON ONE WHO IS MENTALLY RETARDED VIOLATES THE
EIGHTH AND FOURTEENTH AMENDMENTS AND THE STATE
CONSTITUTION.
30. This claim is contained in paragraphs 169-174
and is answered as follows:
a) This claim is without merit and is denied.
V. THE CLAIM THAT THE DEATH SENTENCE IN THIS CASE ISDISPROPORTIONATE IN VIOLATION OF JACKSON'S STATEAND FEDERAL RIGHTS.
30. This claim is contained in paragraphs 175-177
Iand is answered as follows:
68
ia) This claim is procedurally barred from review
because it could have been but was not raised or
addressed at trial. Rule 32.2(a-)(3) Ala.R.Crim.P. and
Alabama caselaw provide that relief cannot be. given on
a claim which could have been raised or addressed at
trial but was not. See e.g., Daniels v. State, 650 So.
2d 544, 551 (Ala. Crim. App. 1994); Ex arte Sin leton,
548 So. 2d 167, 171 (Ala. 1989).
b) This claim is procedurally barred from review
because it was raised and addressed on appeal. Jackson
v. State, 836 So-2d 915, 965 (Ala. Crim. App. 1999).
Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw
provide that relief cannot be given on a claim that was
raised or addressed on appeal. See e.g., Ex parte
Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114
S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103,
1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d
1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989);
Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988),
cert. denied, 486 U.S. 1036 (1988).
c) Alternatively, this claim is denied.
69
VI. THE CLAIM THAT THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY
ON THE LESSER INCLUDED OFFENSE OF ROBBERY.
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31. This claim is contained in paragraphs 178-181
and is answered as follows:
a) This claim is procedurally barred from review
because it could have been but was not raised or
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and
Alabama caselaw provide that relief cannot be given on
a claim which could have been raised or addressed at
trial._.but.was not. See e.g., Daniels V. State, 650 So.
2d 544, 551 (Ala. Crim. App. 1994); Ex arte Sin leton,
548 So. 2d 167, 171 (Ala. 1989).
b) This claim is procedurally barred from review
because it was raised and addressed on appeal. Jackson
v. State, 836 So. 2d 915, 938-939 (Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
caselaw provide that relief cannot be given on a claim
that was raised or addressed on appeal. See e.g., Ex
carte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,
114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d
1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539
So. 2.d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
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(1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App.
1988), cert. denied, 486 U.S. 1036 (1988).
c) Alternatively, this claim is denied.
VII. THE CLAIM THAT THE TRIAL COURT COMMITTED .
REVERSIBLE ERROR BY DENYING JACKSON A CONTINUANCE
TO SECURE A CRITICAL WITNESS.
32. This claim is contained paragraphs 182-185 and
is answered as follows:
a) This claim is procedurally barred from review
because it was raised or addressed at trial. (R. 30)
Rule 32.2(a)(2), Ala.R.Crim.P. and Alabama case:law.
provides that relief cannot be given on a claim which
was raised or addressed at trial. See e.g., Daniels v.
State, supra; Holladay v. State, 629 So. 2d 673, 678
(Ala. Crim. App. 1992), cert. denied, 510 U.S. 1171
(1994).
b) This claim is procedurally barred from review
because it was raised and addressed on appeal. Jackson
v. State, 836 So. 2d 915, 939-941 (Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
caselaw provide that relief cannot be given on a claim
that was raised or addressed on appeal. See e.g., Ex
arte.Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,
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114.S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d
1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539
So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
(1989); Bell v. State, 518 So. 2d 840 (Ala. Grim. App.
1988), cert. denied, 486 U.S. 1036 (1988).
c) Alternatively, this claim is denied.
VIII . THE CLAIM THAT THE TRIAL COURT IMPROPERLY LEFT
THE COURTROOM WHILE THE JURY WATCHED JACKSON'S
VIDEOTAPED STATEMENT.
33. This claim is contained in paragraphs 186-187
and. is answered. as follows:
a) This claim is procedurally barred from review
because it could have been but was not raised or
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and
Alabama caselaw provide that relief cannot be given on
a claim which could have been raised or addressed at
trial but was not. See e.g., Daniels v. State, 650 So.
2d 544, 551 (Ala. Crim. App. 1994); Ex parteSingleton,
548 So. 2d 167, 171 (Ala. 1989).
b) This claim is procedurally barred from review
because it was raised and addressed on appeal. Jackson
v. State, 836 So. 2d 915, 941-943(Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
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caselaw provide that relief cannot be given on a claimr
that was raised or addressed on appeal. See e.g., Ex
arte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,
114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d
1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539
So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
(1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App.
1988), cert. denied, 486 U.S. 1036 (1988).
c) Alternatively, this claim is denied.
IX. THE CLAIM THAT THE STATE IMPROPERLY OBTAINED
JACKSON ' S CONVICTION BY UNCORROBORATED ACCOMPLICETESTIMONY.
34. This claim is contained in paragraphs 188-191
and contains two distinct allegations. First, Jackson
alleges that the he was convicted solely on the basis
of uncorroborated accomplice testimony. Second, Jackson
alleges that the trial court erred in failing to
instruct the jury on the accomplice corroboration
requirement. These claim are answered as follows:
A. The Claim That The State Improperly ObtainedJackson ' s Conviction By Uncorroborated
Accomplice Testimony.
This claim is procedurally barred from review
because it was raised or addressed at trial. (R. 26-
73
30).. Rule 32.2(a)(2), Ala.R.Crim.P. and Alabama
1
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caselaw provides that relief cannot be given on a claim
which was raised or addressed at trial. See e•g.,
Daniels v. State, supra; Hollada v. State, 629 So. 2d
673, 678 (Ala. Cram. App. 1992), cert. denied, 510 U.S.
1171 (1994).
b) This claim is procedurally barred from review
because it was raised and addressed on appeal. Jackson
v. State, 836 So. 2d 915, 943-946 (Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
caselaw provide that relief cannot be given on a claim
that was raised or addressed on appeal. See Ex
parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,
114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d
1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539
So. 2d 1103 (Ala. 1989), cert. denied , 110 S.Ct. 206
(1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App.
1988), cert. denied, 486 U.S. 1036 (1988).
c) Alternatively, this claim is denied.
B. The Claim That The Trial Court Erred In
Failing To Instruct The Jury About The
Accomplice Corroboration Requirement.
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35. This claim is contained in paragraph 191 and
is answered as follows:
a) This claim is procedurally barred from review
because it could have been but was not raised or
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and
Alabama caselaw provide that relief cannot be given on
a claim which could have been raised or addressed at
trial but was not. See e., Daniels v. State, 650 So.
2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton,
548 So. 2d 167, 171 (Ala. 1989).
b) This claim is procedurally barred from review
because it was raised and addressed on appeal. Jackson
v. State, 836 So. 2d 915, 946 (Ala. Crim. App. 1999).
Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw
provide that relief cannot be given on a claim that was
raised or addressed on appeal. See e.g., Ex parte
Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114
S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103,
1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d
1103 (Ala. 1989), cert. denied, 110 S.Ct..206 (1989);
.Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988),
cert.. denied, 486 U.S. 1036. (1988).
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C) Alternatively, this claim is denied.
X. THE CLAIM THAT THE STATE ' S USE OF ITS PEREMPTORYCHALLENGES DISCRIMINATED ON THE BASIS OF RACE ANDGENDER.
36. This claim is contained in paragraphs 192-194
and is answered as follows:
a) The Batson claim is procedurally barred from
review because it was raised or addressed at trial. (R.
156) Rule 32.2(a)(2), Ala.R.Crim.P. and Alabama
caselaw provides that relief cannot be given on a claim
which was raised or. addressed at trial. See egg.,
Daniels v. State, supra; Holladay v. State, 629 So. 2d
673, 678 (Ala.
1171 ( 1994).
Crim. App. 1992), cert. denied, 510 U.S.
b) The J.E.B. claim is procedurally barred from
review because it could have been but was not raised or
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and
Alabama caselaw provide that relief cannot be given on
a claim which could have been raised or addressed at
trial but was not. See e.g., Daniels v. State, 650 So.
2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton,
548 So. 2d 167, 171 (Ala. 1989).
76
c) This claim is procedurally barred from review
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because both the Batson and J.E.B. claims were raised
and addressed on appeal. Jackson v. State, 836 So. 2d
915, 946-948 (Ala. Crim. App. 1999). Rule 32.2(a)(4),
Ala.R.Crim.P. and Alabama caselaw provide that relief
cannot be given on a claim that was raised or addressed
on appeal. See e.g., Ex arte Ford, 630 So. 2d 115
(Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994);
Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim.
App. 1988), cert. denied, 539 So. 2d 1103 (Ala. 1989),
cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518
So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486
U.S. 1036 (1988).
d) Alternatively, this claim is denied.
XI. THE CLAIM THAT THE TRIAL COURT ' S REASONABLE DOUBTINSTRUCTION WAS UNCONSTITUTIONAL.
37. This claim is contained in paragraphs 195-198
and is answered as follows:
a) This claim is procedurally barred from review
because it could have been but was not raised or
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and
Alabama caselaw provide that relief cannot be given on
a claim which could have been raised or addressed at
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trial but was not. See e.q., Daniels v. State, 650 So.
2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton,
548 So. 2d 167, 171 (Ala. 1989).
b) This claim is procedurally barred from review
because it was raised and addressed on appeal. Jackson
v. State, 836 So. 2d 915, 948-950 (Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
caselaw provide that relief cannot be given on a claim
that was raised or addressed on appeal. See e.g., Ex
parte Ford, 630 So. 2d 115 (Ala.. 1993), cert. denied,
114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d
1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539
So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
(1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App.
1988), cert. denied, 486 U.S. 1036 (1988).
c) Alternatively, this claim is denied.
XII. THE CLAIM THAT THE TRIAL COURT IMPROPERLY
ADMITTED PHOTOGRAPHS THAT SERVED ONLY TO INFLAME
AND PREJUDICE THE JURY.
38. This claim is contained in paragraphs 199-200
and is answered as follows:
This claim is procedurally barred from review
because it could have been but was not raised or
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addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and
Alabama caselaw provide that relief-cannot be given on
a claim which could have been raised or addressed at
trial but was not. See e.g., Daniels v. State, 650 So.
2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton,
548 So. 2d 167, 171 (Ala. 1989).
b) This claim is procedurally barred from review
because it was raised and addressed on appeal. Jackson
v. State, 836 So. 2d 915, 950-951 (Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
caselaw provide that relief cannot be given on a claim
that was raised or addressed on appeal. See e•g., Ex
parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied/.
114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d
1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539
So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
(1989); Bell v. State, 518 So. 2d 840 (Ala. Crirn. App.
1988), cert. denied, 486 U.S. 1036 (1988).
XIII.
Alternatively, this claim is denied.
THE CLAIM THAT THE TRIAL COURT IMPROPERLY
GRANTED THE STATE ' S CHALLENGES OF JURORS FORCAUSE.
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39. This claim is contained in paragraphs 201-203
and is answered as follows:
This claim is procedurally barred from review
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because it could have been but was not raised. or
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and
Alabama caselaw provide that relief cannot be given on
a claim which could have been raised or addressed at
trial but was not. See e.g., Daniels v. State, 650 So.
2d 544, 551 (Ala. Crim. App. 1994); Ex parteSingleton,
548 So. 2d 167, 171 (Ala. 1989)..
b) This claim is procedurally barred from review
because it was raised and addressed on appeal. Jackson
v.-State, 836 So. 2d 915, 951-953 (Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
caselaw provide that relief cannot be given on a claim
that was raised or addressed on appeal. See e.g., Ex
parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,
114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d
1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539
So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
(1989); Bell v. State, 518 So. 2d 840 (Ala. Cram. App.
1988)., cert. denied, 486 U.S. 1036 (1988).
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c) Alternatively, this claim is denied.
XIV. THE CLAIM THAT THE TRIAL COURT IMPROPERLY ADMITTED
EVIDENCE THAT DID NOT HAVE A PROPER CHAIN OF
CUSTODY.
40. This claim is contained in paragraph 204 and
is answered as follows:
a) This claim is procedurally barred from review
because it was raised or addressed at trial. (R. 499-
500) Rule 32 . 2(a)(2), Ala.R.Crim . P. and Alabama
caselaw . provides that relief cannot be given on a claim
which was raised or addressed at trial. See e . g.,
Daniels v . State, supra ; Holladay v. State, 629 So. 2d
673, 678 (Ala. Crim. App . 1992 ), cert. denied , 510 U.S.
1171 (1994).
b) This claim is procedurally barred from review
because it was raised and addressed on appeal . Jackson
v. State, 836 So. 2d 915, 953 - 955 (Ala. Crim. App.
1999 ). Rule 32.2(a )( 4), Ala.R.Crim . P. and Alabama
caselaw provide that relief cannot be given on a claim
that was raised .. or addressed on. appeal . See e.g., Ex
arte Ford , 630 So . 2d 115 (Ala. 1993 ), cert. denied,
114 S.Ct. 1664 ( 1994 ); Baldwin v . State, 539 So. 2d
1103, . 1105 ( Ala. Crim. App ., 1988 ), cert. denied, 539
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So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
(1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App.
1988), cert. denied, 486 U.S. 1036 (1988).
c) Alternatively, this claim is denied.
XV. THE CLAIM THAT THERE WAS INSUFFICIENT EVIDENCE TO
CONVICT JACKSON OF CAPITAL MURDER.
41. This claim is contained in paragraphs 205-206
and is answered as follows:
a) This claim is procedurally barred from review
because it could have been but was not raised or
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and
Alabama caselaw provide that relief cannot be given on
a claim which could have been raised or addressed at
trial but was not. See e.g_, Daniels v. State, 650 So.
2d 544, 551 (Ala. Crim. App. 1994); Ex ante Singleton,
548 So. 2d 167, 171 (Ala. 1989).
b) This claim is procedurally barred from review
because it was raised and addressed on appeal. Jackson
v. State, 836 So. 2d 915, 955-958 (Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
caselaw provide that relief cannot be given on a claim
that was raised or addressed on appeal. See e.g., Ex
parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,
82
114.S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d
1I
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1103, 1105 (Ala. Crim. App. 1988 ), cert. denied, 539
So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
(1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App.
1988), cert. denied, 486 U.S. 1036 (1988).
c) Alternatively, this claim is denied.
XVI. THE CLAIM'THAT DOUBLE COUNTING ROBBERY AS AN
ELEMENT OF THE CAPITAL OFFENSE AND AS AN
AGGRAVATING CIRCUMSTANCE WAS IMPROPER.
42. This claim is contained in paragraphs 207-209
and is answered as follows:
a) This claim is procedurally barred from review
because it could have been but was not raised or
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and
Alabama caselaw provide that relief cannot be given on
a claim which could have been raised or addressed at
trial but was not. See e.2., Daniels v. State, 650 So.
2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton,
548 So. 2d 167, 171 (Ala. 1989).
b) This claim is procedurally barred from review
because it was raised and addressed on appeal. Jackson
v. State, 836 So. 2d 915, 958-959 (Ala. Crim. App.
1999).. Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
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caselaw provide that relief cannot be given on a claim
that was raised or addressed on appeal. See e.g., Ex
parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,
114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d
1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539
So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
(1989); Bell v.' State, 518 So. 2d 840 (Ala. Crim. App.
1988), cert. denied, 486 U.S. 1036 (1988).
c) Alternatively, this claim is denied.
XVII. THE CLAIM THAT ALABAMA' S MANNER OF EXECUTION
CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.
43. This claim is contained in paragraphs 210-211
and is answered as follows:
a) The claim regarding electrocution is
procedurally barred from review because it could have
been but was not raised or addressed at trial. Rule
32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide
that relief cannot be given on a claim which could have
been raised or addressed at trial but was not. See
e.2., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim.
App. 1994); Ex parte Singleton, 548 So. 2d 167, 171
(Ala. 1989).
84
b) The claim regarding electrocution is
I
procedurally barred from review because it was raised
and addressed on appeal. Jackson v. State, 836 So. 2d
915, 960-962 (Ala. Crim. App. 1999). Rule 32.2(a) (4) ,
Ala.R.Crim.P. and Alabama caselaw provide that relief
cannot be given on a claim that was raised or addressed
on appeal. Seee.g., Ex parte Ford, 630 So. 2d 115
(Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994);
Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim.
App. 1988)..,-cert. denied, 539 So. 2d 1103 (Ala. 1989),
cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518
So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486
U.S. 1036 (1988).
c) The claim regarding electrocution is moot
because the State has changed to lethal injection as
its means of execution.
d) The claim regarding lethal injection must be
dismissed, or in the alternative, amended for failing
to meet the requirements of Rules 32.3 and 32.6(b),
Ala.R.Crim.P.
e) This claim should also be dismissed pursuant
to Ala. R. Crim. P. 32.7(d) for failure to state a
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claim upon which relief can be granted because lethal
injection has never been found to be cruel and unusual
punishment . See Poland v. Stewart , 117 F. 3d 1094,
1105 ( 9th Cir. 1997) ( Lethal injection not found to be
cruel and unusual punishment ). Rather , offering lethal
injection as a method of execution has been deemed to
correct any possibility of cruel and unusual punishment
in regards to other methods of execution. See Stewart
v. LeGrand, 526 U.S. 115, 119 (1999). Thus, this claim
is due to be dismissed.
f) Alternatively, this claim is denied.
XVIII: THE CLAIM THAT THE CUMULATIVE EFFECT OF ALL OF
THE ABOVE ERRORS ENTITLE JACKSON TO RELIEF.
44. This claim is contained in paragraph 212 and
is answered as follows:
a) This claim is procedurally barred from review
because it could have been but was not raised or
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and
Alabama caselaw provide that relief cannot be given on
a claim which could have been raised or addressed at
trial but was not. See Boyd v. State, 2003 WL
22220330, at *23 (Ala. Crim. App. Sept. 26,
2003)(holding that a claim regarding the cumulative
86
effect of alleged trial court errors could have been
11111
1
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raised at trial and, therefore , is subject to
preclusion by Rule 32.2(a)(3), Ala.R.Crim.P.). See
e.g , Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim.
App. 1994); Ex parte Singleton, 548 So. 2d 167, 171
(Ala. 1989).
b) This claim is procedurally barred from review
because it was raised or addressed on appeal. Jackson
v. State, 836 So. 2d 915, 964 (Ala. Crim. App. 1999).
Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw
provide that relief cannot be given on a claim that was
raised or addressed on appeal. See e.g., Ex parte
Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114
S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103,
1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d
1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989);
Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988),
cert. denied, 486 U.S. 1036 (1988).
c) Alternatively, this claim is denied.
87
MISCELLANEOUS MATTERS
r
1
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45. The responses herein are based on the
undersigned counsel's understanding of the grounds for
relief alleged in the petition. If Jackson is
attempting to state any other claims, Respondent
requests a more definite statement of the issues and
that it be given an opportunity to respond if the
claims are amended in any way.
46. All averments in Jackson's petition that are
not expressly admitted are denied.
47. The responses set out herein are pleaded
separately and severally.
RESPONSE TO PRAYER FOR RELIEF
48. Jackson is not entitled to an evidentiary
hearing, or relief, on those claims in the petition
that are procedurally barred from review or due to be
summarily dismissed.
49. Jackson is not entitled to an evidentiary
hearing, or relief, on those claims in the petition
which are not supported by a "full disclosure of the
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factual basis" for such claims as required by Rule
32.6(b), Ala.R.Crim.P.
50. Jackson is not entitled to funds to present
witnesses, experts, or other evidence. The fact that
Jackson may be indigent is not relevant to this issue.
See, Williams v. State, 783 So. 2d 108, 113 (Ala. Crim.
App. 2000)(holding that "indigent defendants are not
entitled to funds to hire experts to assist in
postconviction litigation").
51. Jackson was properly convicted and sentenced
to death. He is not entitled to any relief from that
conviction and death sentence.
May 31, 2004
Respectfully submitted,
Troy King
Attorney General
eremf W. McIntire
Assistant Attorney GeneralCounsel of Record *
74
State of AlabamaOffice of the Attorney General
11 South Union Street
Montgomery, AL 36130-0152
(334) 353-4014 *
89
CERTIFICATE OF SERVICE
I hereby certify that on this nth day of May,
2004, I served a copy of the foregoing on counsel for
Petitioner, by placing said copy in the United States
Mail, first class, postage prepaid and addressed as
follows:
Bryan A. StevensonAngela L. Setzer
Equal Justice Initiative of Alabama122 Commerce StreetMontgomery, AL 36104
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1
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"" YVere W. McIntireAssistant Attorney GeneralCounsel of Record *
ADDRESS OF COUNSEL:
Office of the Attorney GeneralCapital Litigation DivisionAlabama State House11 South Union StreetMontgomery, AL 36130(334) 353-4014 *
90
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We sdaw.
836 So.2d 915(Cite as: 836 So-2d 915)
PCourt of Criminal Appeals of Alabama.
Shonelle Andre JACKSON
STATE.
CR-97-2050.
May 28, 1999.Rehearing Denied July'9, 1999.
Defendant was convicted in the MontgomeryCircuit Court, No. CC-97-2300, William R. Gordonand Tracy S. McCooey, JJ., of capital murder and
first-degree theft of property. He appealed. TheCourt of Criminal Appeals, Baschab , J., held that:(1) defendant voluntarily gave inculpatory statement
to police; (2) trial court properly used defendant'sjuvenile record to assess weight it would assign tostatutory mitigating circumstance of defendant's ageat time of offense; (3) failure to instruct jury onlesser included offense of robbery did not constituteplain error; (4) denying motion for continuance toallow defendant time to secure attendance ofallegedly critical witness was not an abuse ofdiscretion; (5) admission of photographs andvideotapes did not constitute plain error, (6)granting state 's challenges for cause as toprospective jurors did not constitute plain error; (7)evidence was sufficient to support conviction forcapital offense of murder committed during first-degree robbery; (8) using robbery as both elementof capital offense and as aggravating circumstancedid not violate double jeopardy; (9) trial court didnot improperly override jury's unanimoussentencing recommendation; and (10) deathsentence was proper.
Affirmed.
Remanded, Ala., 836 So.2d 973, remanded,Ala.Cr.App., 836 So.2d 978, opinion after remand,Ala., 836 So.2d 979.
West Headnotes
11] Criminal Law €1030(1)110kl030(l) Most Cited Cases
Page I
Although the lack of an objection at trial will notbar appellate review of an issue in a death penaltycase, the lack of an objection will weigh against anyclaim of prejudice. Rules App.Proc., Rule 45A.
121 Criminal Law 01030(1)I10k1030(1) Most Cited Cases
The plain error exception to the contemporaneousobjection rule is to be used sparingly , solely inthose circumstances in which a miscarriage ofjustice would otherwise result . Rules App.Proc.,Rule 45A.
131 Criminal Law 01035(2)I I0k1035(2) Most Cited Cases(Formerly 110k1036.1(3.1), 203k325)
Capital murder defendant failed to preserve forappellate review claim that trial court improperlygranted state's motion in limine preventing defensefrom presenting evidence that victim was drugdealer, and, thus , claim was subject to plain errorreview , where trial court indicated willingness toreconsider ruling on motion and defendant did notraise issue again . Rules App.Proc., Rule 45A.
14] Criminal Law 01044.2(1)110k1044 . 2(l) Most Cited Cases
When a party seeking to introduce evidence suffersan adverse ruling on the opposing party's motion inlimine , the adverse ruling alone , unless absolute orunconditional , does not preserve the issue forappellate review.
151 Criminal Law 01035(2)110k1035(2) Most Cited Cases
Grant of state 's motion in limine preventing defensefrom presenting evidence that capital murder victimwas drug dealer did not constitute plain error, whereallegation that murder was committed in retaliationfor bad drug deal was not presented until after statefiled motion , defendant failed to mention bad drug
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836 So.2d 915(Cite as . 836 So .2d 915)
deal in statements to police, and trial court indicatedwillingness to reconsider ruling on motion ifdefendant informed court that he intended to testify,but defendant failed to so inform court and failed to,raise issue again . Rules App.Proc., Rule 45A.
[61 Criminal Law €1044.2(1)110k1044.2(1) Most Cited Cases
Capital murder defendant's claim that circumstancessurrounding his interrogation were coercive wassubject to plain error review, where defendant failedto allege specific facts in motion to suppress tosupport claim. Rules App.Proc., Rule 45A.
17] Criminal Law €412.1(4)I10k412.1(4) Most Cited Cases
Detective's misrepresentation that capital murderdefendant's fingerprints were found on soda cuprecovered from stolen vehicle involved in murderdid not render defendant's inculpatory statementinvoluntary, where defendant initiated contact withpolice, defendant was not subjected to lengthyinterrogation, by making misrepresentationdetective was attempting to inform defendant thathe had already been connected with vehicle so thatdefendant would be truthful in making statement,defendant had previously been arrested on othercharges, and there was no evidence that defendantwas threatened or coerced or that officers promiseddefendant anything in exchange for statement.
181 Criminal Law €414110k414 Most Cited Cases
181 Criminal Law €531(1)I10k531(1) Most Cited Cases
Confessions and inculpatory statements arepresumed to be involuntary and inadmissible.
191 Criminal Law €517.1(2)110k517.1(2) Most Cited Cases
[9J Criminal Law €518(1)II Ok518(1) Most Cited Cases
For a confession to be properly admitted intoevidence , the state must prove that the defendantwas informed of his Miranda rights and that theconfession was voluntarily given. U.S.C.A.Const.Amend. 5.
[10] Criminal Law €1158(4)110k1158(4) Most Cited Cases
Page 2
Trial court's finding of voluntariness of confessionneed only be supported by a preponderance of theevidence.
[111 Criminal Law €1158(4)1 lOk1158(4) Most Cited Cases
A trial court's determination as to whether aconfession is voluntary will not be disturbed onappeal unless it is manifestly contrary to the greatweight of the evidence.
1121 Criminal Law €1144.12110k1144.12 Most Cited Cases
In reviewing the correctness of a trial court's rulingon a motion to suppress, the Court of CriminalAppeals makes all the reasonable inferences andcredibility choices supportive of the decision of thetrial court.
113] Criminal Law € 1158(4)11 Ok1158(4) Most Cited Cases
A trial court's ruling on a motion to suppress willnot be disturbed unless it is palpably contrary to thegreat weight of the evidence.
1141 Criminal Law €412.1(1)I I0k412.1(1) Most Cited Cases
1141 Criminal Law €519(1)I I Ok519(1) Most Cited Cases
The test for determining whether a confession oranother inculpatory statement is involuntary is notwhether the defendant bargained with the police,but whether in his discussions with the police,which may have included bargaining, thedefendant's will was overborne by apprehension ofharm or hope of favor.
1151 Criminal Law €412.1(1)110k412. I (I) Most Cited Cases
[ 15J Criminal Law €519(1)I IOk519(1) Most Cited Cases
To determine if a defendant's will was overbornewhen he made a confession or another inculpatory
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836 So.2d 915(Cite as : 836 So -2d 915)
statement, the court must assess the conduct of thelaw enforcement officials in creating pressure andthe defendant's capacity to resist that pressure; thedefendant's personal characteristics as well as hisprior experience with the criminal justice system arefactors to be considered in determining thedefendant's susceptibility to police pressures.
1161 Criminal Law X412.1(1)110k412.1(l) Most Cited Cases
[161 Criminal Law X521110021 Most Cited Cases
Subtle forms of psychological manipulation, such astrickery or deception by the police, have not beenconsidered sufficiently coercive, standing alone, torender a confession or incriminating statementinvoluntary; instead, the trial judge must examinethe totality of the circumstances surrounding thestatement to determine its voluntariness.
1171 Criminal Law 0=1035(10)110k1035(10) Most Cited Cases
[171 Criminal Law X1044.2(1)110kI044.2(1) Most Cited Cases
Capital murder defendant's claim that trial courterred in admitting inculpatory statement withoutfirst conducting suppression hearing outside jury'spresence was subject to plain error review;although defendant requested hearing in writtenmotion, he did not subsequently object when trialcourt denied motion. Rules App.Proc., Rule 45A.
1181 Criminal Law X1035(10)110k1035(l0) Most Cited Cases
Error, if any, in trial court's decision to deny motionto suppress capital murder defendant's inculpatorystatement without conducting hearing outsidepresence of jury did not constitute plain error, giventhat statement was voluntarily made. RulesApp.Proc., Rule 45.
[191 Sentencing and Punishment X1706350Hk1706 Most Cited Cases
1191 Sentencing and Punishment c'1714350Hkl7l4 Most Cited Cases
Trial court properly used capital murder defendant's
Page 3
juvenile record to assess weight it would assign tostatutory mitigating circumstance of defendant's ageat time of offense, rather than improperly treatingjuvenile record as nonstatutory aggravatingcircumstance to override jury's recommendation oflife sentence and impose death sentence.
1201 Sentencing and Punishment X1714350Hk1714 Most Cited Cases
(201 Sentencing and Punishment €1721350Hk1721 Most Cited Cases
Trial court properly considered capital murderdefendant's height and weight, in addition to otherfactors, including defendant's physical maturity,defendant's juvenile record, fact that defendant wasfather, fact that defendant used marijuana dailysince age 14, and fact that defendant consumedalcohol on regular basis, in concluding thatdefendant was physically mature adult at time ofoffense, for purpose of determining weight to assignmitigating circumstance of age at time of offense.
1211 Sentencing and Punishment X1777350Hkl777 Most Cited Cases
The decision as to whether a particular mitigatingcircumstance in a capital murder prosecution issufficiently proven by the evidence and the weightto be accorded to it rests with the trial court.
(221 Sentencin g and Punishment X1785(3)35OHkl 785(3) Most Cited Cases
Trial court made individualized sentencingdetermination in capital murder proceeding;although court analyzed mitigating circumstance ofage at time of offense in form similar to that used byFlorida court, trial court incorporated facts andevidence presented in defendant's case.
[23] Sentencing and Punishment X1784(3)350Hk1784(3) Most Cited Cases
Trial court did not base its sentencing determinationon speculation about jurors' residual doubt, butinstead carefully considered jury's recommendationin overriding that recommendation and sentencingcapital murder defendant to death; although whentrying to test reliability of advisory verdict trialcourt speculated that jury may have maderecommendation based on belief that codefendant
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836 So.2d 915(Cite as. 836 So.2d 915)
fired fatal shot, trial court ultimately concluded thatassigning weight to advisory verdict based ontesting reliability of advisory verdict wasinappropriate.
(241 Sentencing and Punishment 0:^329350Hk329 Most Cited Cases
Trial court is the sentencing authority.
[251 Sentencing and Punishment X1784(3)350Hk1784(3) Most Cited Cases
Before overriding a jury's sentencingrecommendation of life imprisonment and imposingthe death penalty, a trial court must determine thatthe aggravating circumstances outweighed themitigating circumstances.
1 26) Sentencing and Punishment X308350Hk308 Most Cited Cases
By necessity, when sentencing , a trial court mayrely on information the jury did not hear.
1271 Sentencing and Punishment X1784(3)350Hkl784(3) Most Cited Cases
Trial court made adequate determination ofculpability for capital murder, in overriding juryverdict, where trial court stated that evidenceshowed that defendant shot victim and thatdefendant was ringleader in offense.
1281 Criminal Law X1038.2I lOk1038.2 Most Cited Cases
]28] Criminal Law X1038.3110ki038.3 Most Cited Cases
Claim that trial court should have instructed jury onlesser included offense of robbery was subject toplain error review, where capital murder defendantdid not request robbery instruction and did notobject when instruction was not given. RulesApp.Proc., Rule 45A.
(291 Criminal Law '795(2.50)I10k795(2.50) Most Cited Cases
Failure in prosecution for capital offense of murdercommitted during commission of first-degreerobbery to instruct jury on lesser included offense
Page 4
of robbery did not constitute plain error, wheredefendant contended that robbery was mereafterthought to murder and defendant was at least anaccomplice to murder such that there was norational basis on which jury could find defendantguilty of robbery but not of murder. Code 1975,13A-I- 9(b); Rules App.Proc., Rule 45A.
[30J Criminal Law X594(3)I I Ok594(3) Most Cited Cases
Denying motion for continuance to allow defendanttime to secure attendance of allegedly criticalwitness was not an abuse of discretion, wheredefendant failed to present any evidence thatwitness could be located and would testify, andmoreover, witness's statement was admitted intoevidence by stipulation of prosecution and defense.
1311 Criminal Law X586110k586 Most Cited Cases
1311 Criminal Law X11511 l Oki 151 Most Cited Cases
A motion for a continuance is addressed to thediscretion of the trial court, and the trial court'sruling on the motion will not be disturbed unlessthere is an abuse of discretion.
1321 Criminal Law X594(1)110k594(l) Most Cited Cases
A trial court should grant a motion for continuanceon the ground that a witness or evidence is absent ifthe following principles are established: (1) theexpected evidence must be material and competent;(2) there must be a probability that the evidence willbe forthcoming if the case is continued; and (3) themoving party must have exercised due diligence tosecure the evidence.
(331 Criminal Law X1035(3)I10k1035(3) Most Cited Cases
(331 Criminal Law X1039I I Oki 039 Most Cited Cases
Claims that trial judge improperly left courtroomwhile jurors viewed capital murder defendant'svideotaped statement and that trial judge improperlyallowed court reporter to admonish jurors to avoidmedia exposure, not to discuss case, and to be back
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at 9:30 next morning were subject to plain errorreview , where defendant failed to present claims totrial court. Rules App.Proc., Rule 45A.
134] Criminal Law €1035(3)11Oki 035(3) Most Cited Cases
134] Criminal Law €1039I I Oki 039 Most Cited Cases
Trial judge's actions of leaving courtroom whilejurors viewed capital murder defendant's videotapedstatement and of allowing court reporter toadmonish jurors to avoid media exposure, not todiscuss case , and to be back at 9:30 next morningdid not constitute plain error , where judge was notabsent during counsels ' arguments , examination ofwitnesses, or handing down of verdict, judge statedthat he had previously viewed videotape andinstructed jurors about videotape before leaving,court adjourned for day immediately after videotapewas played, court reporter made same comments tojurors that judge had made when court previouslyadjourned for day , and defendant failed to allegethat error occurred during judge's absence. RulesApp.Proc., Rule 45A.
1351 Criminal Law €1166.2111Oki166.21 Most Cited Cases
The rule that it is the presiding judge's duty to bevisibly present during every moment in a trial sothat he can always see and hear all that is being saidand done does not mandate a reversal in everyinstance of his absence.
1361 Criminal Law €511.1(7)I10k511.1(7) Most Cited Cases
Evidence was sufficient to corroborate accomplices'testimony concerning robbery element of capitalmurder; in addition to defendant 's conduct andinculpatory statements to law enforcement officials,state introduced eyewitness testimony and physicalevidence connecting defendant with offense. Code1975, § 12-21-222.
1371 Criminal Law €511.1(2.1)I IOk5l l.1(2.l) Most Cited Cases
1371 Criminal Law €511.1(3)I lOk5l 1.1(3) Most Cited Cases
Page 5
While evidence corroborating an accomplice'stestimony need not be strong , it must be ofsubstantive character, be inconsistent withdefendant 's innocence, and do more than raise asuspicion of guilt. Code 1975, § 12-21-222.
1381 Criminal Law €511.2I IOk5 l l.2 Most Cited Cases
The means for determining if there is sufficientevidence to corroborate an accomplice 's testimonyis to set aside the accomplice 's testimony anddetermine whether the remaining evidence tends toconnect the defendant with the commission of theoffense . Code 1975, § 12-21-222.
1391 Criminal Law €741(5)110k741(5) Most Cited Cases
Whether evidence corroborating an accomplice'stestimony exists is a question of law to be resolvedby the trial court; the evidence's probative forceand sufficiency are jury questions. Code 1975, §12-21-222.
1401 Criminal Law €511.3110k511.3 Most Cited Cases
Circumstantial evidence is sufficient to showcorroboration of an accomplice's testimony. Code1975, § 12-21-222.
1411 Criminal Law €511.1(1)I I0k511.1(1) Most Cited Cases
A combination of facts may be sufficient tocorroborate an accomplice 's testimony even thougheach single fact, standing by itself, is insufficient.Code 1975, § 12-21-222.
1421 Criminal Law €511.1(1)110k5 l 1.1 (1) Most Cited Cases
Corroborative evidence need not directly confirmany particular fact nor go to every material factstated by an accomplice . Code 1975, § 12-21-222.
1431 Criminal Law €511.1(7)I IOk511.1(7) Most Cited Cases
Even assuming codefendants were accomplices tocapital murder, the state was not required to presentcorroborative evidence as to each element of the
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offense or as to each fact about which accomplicestestified; rather, state was simply required topresent other evidence that tended to connectdefendant to commission of the offense. Code1975, § 12-21-222.
[44] Criminal Law €1038.2I10k1038.2 Most Cited Cases
1441 Criminal Law X1038.3110k1038.3 Most Cited Cases
Claim that trial court erred by failing to instruct jurythat accomplice testimony must be corroborated byother evidence was subject to plain error review,where capital murder defendant failed to requestsuch instruction and did not object when instructionwas not given. Rules App.Proc., Rule 45A.
1451 Criminal Law X1038.2110k1038.2 Most Cited Cases
Failing to instruct jury in capital murder prosecutionthat accomplice testimony must be corroborated byother evidence did not constitute plain error, wherestate presented sufficient evidence to corroborateaccomplice testimony. Rules App.Proc., Rule 45A.
1461 Criminal Law X1035(5)110kl035(5) Most Cited Cases
Claim that state improperly used its peremptorychallenges to discriminate on basis of gender wassubject to plain error review, where capital murderdefendant failed to raise claim in trial court. RulesApp.Proc., Rule 45A.
1471 Criminal Law €1115(2)1 1Ok1115(2) Most Cited Cases
Trial court's finding that capital murder defendantfailed to establish prima facie case of race andgender discrimination in state's exercise ofperemptory challenges did not constitute reversibleerror , where record failed to include documentsshowing race or gender of prospective jurors orcopies of questionnaires completed by jurors.
1481 Criminal Law €1038.1(5)110k1038.1(5) Most Cited Cases
Claim that trial court's reasonable doubt instructionimproperly lowered state's burden of proof was
Page 6
subject to plain error review, where capital murderdefendant failed to present claim to trial court.Rules App.Proc_, Rule 45A.
1491 Criminal Law X1038.1(5)110k1038.1(5) Most Cited Cases
Reasonable doubt instruction , providing in part thatreasonable doubt may arise from all , part of, or lackof evidence , that state does not have to provedefendant guilty beyond all doubt , beyond shadowof doubt , or to mathematical certainty , and thatproof beyond a reasonable doubt is proof of suchconvincing character that you will be willing to relyand act upon it without hesitation in most importantof your affairs , did not improperly lower state'sburden of proof and did not constitute plain error,where there was no reasonable likelihood that juryapplied instruction in manner that would violatedefendant 's constitutional rights . U.S.C.A.Const .Amend. 14; Rules App.Proc ., Rule 45A.
1501 Criminal Law. 1036.1(6)110k1036. 1(6) Most Cited Cases
Clain that trial court improperly admitted in capitalmurder prosecution photographs and videotapeswas subject to plain error review, where defendantfailed to object to their admission at trial. RulesApp.Proc., Rule 45A.
1511 Criminal Law X1036.1(6)110k1036.1(6) Most Cited Cases
Admission of photographs depicting character andlocation of capital murder victim's wounds did notconstitute plain error, where photographs were notunnecessarily gruesome or gory and defendantfailed to show how admission of photographsaffected or probably affected his substantial rights.Rules App.Proc., Rule 45A.
152] Criminal Law X1036.1(6)110kl036.1(6) Most Cited Cases
Admission in capital murder prosecution ofphotographs and videotapes depicting crime scene,vehicles involved in offense, and recoveredevidence did not constitute plain error, wherephotographs and videotapes were relevant anddefendant failed to show how admission ofphotographs and videotapes affected or probablyaffected his substantial rights. Rules App.Proc.,
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Rule 45A.
[531 Criminal Law C=438(1)110k438(l) Most Cited Cases
Photographic evidence is admissible if it tends toprove or disprove some disputed or material issue,to illustrate some relevant fact or evidence, or tocorroborate or dispute other evidence in the case.
[541 Criminal Law X438(1)110k438(l) Most Cited Cases
Photographs that tend to shed light on, tostrengthen, or to illustrate other testimony presentedmay be admitted into evidence.
1551 Criminal Law X438(7)110k438(7) Most Cited Cases
Photographic evidence, if relevant, is admissibleeven if it has a tendency to inflame the minds of thejurors.
1561 Criminal Law X438(5.1)110k438(5.1) Most Cited Cases
[561 Criminal Law C=675110k675 Most Cited Cases
Photographs depicting the character and location ofwounds on a deceased's body are admissible eventhough they are cumulative and are based onundisputed matters.
1571 Criminal Law X438(7)110k438(7) Most Cited Cases
The fact that a photograph is gruesome is notgrounds to exclude it as long as the photographsheds light on issues being tried.
1581 Criminal Law C=438(4)110k438(4) Most Cited Cases
Photographs that depict the crime scene arerelevant, and, therefore, admissible.
1591 Criminal Law X1035(5)1 10k1035(5) Most Cited Cases
Claim that trial court improperly granted state'schallenges for cause as to prospective jurors who
Page 7
expressed objections to imposition of death penaltywas subject to plain en-or review, where capitalmurder defendant failed to present claim to trialcourt. Rules App.Proc., Rule 45A.
1601 Criminal Law 01035(5)110k1035(5) Most Cited Cases
Granting state 's challenges for cause as toprospective jurors did not constitute plain error,where prospective jurors indicated either that theycould not vote on imposition of punishment or thatthey would not vote to impose death penaltyregardless of evidence produced. Code 1975,§12-16- 152 ; Rules App. Proc ., Rule 45A.
1611 Jury 0108230k108 Most Cited Cases
The proper standard for determining whether aprospective juror may be excluded for causebecause of his views on capital punishment iswhether the juror's views would prevent orsubstantially impair the performance of his duties asa juror in accordance with his instructions and hisoath. Code 1975, § 12-16- 152.
1621 Jury X132230k 132 Most Cited Cases
A prospective juror's bias against the death penalty,for the .purpose of determining whether theprospective juror may be removed for cause, neednot be proved with unmistakable clarity, becausesuch bias cannot be reduced to question and answersessions which obtain results in the manner of acatechism. Code 1975, 12-16-152.
1631 Jury € 108230k108 Most Cited Cases
A trial judge's finding on whether a particular juroris biased against the death penalty , and, thus,removable for cause is based upon a determinationof demeanor and credibility that is peculiarly withinthe trial judge's province . Code 1975, 12-16-152.
1641 Criminal Law €1152(2)I IOkl 152(2) Most Cited Cases
A trial court's rulings on juror challenges for causebased on bias are entitled to great weight and willnot be disturbed on appeal unless clearly shown to
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be an abuse of discretion. Code 1975, § 12-16-152.
(651 Jury E 108230k108 Most Cited Cases
A blanket declaration of support of or opposition tothe death penalty is not necessary for a trial judge to
disqualify a juror for cause. Code 1975,
12-16-152.
[661 Criminal Law €1035(5)110ki035(5) Most Cited Cases
Claim that exclusion of prospective jurors violatedcapital murder defendant's right to be tried by jurycomprised of fair cross-section of community wassubject to plain error review, where defendant failedto present claim to trial court. Rules App.Proc.,Rule 45A.
(671 Jury x33(2.15)230k33(2.15) Most Cited Cases
Exclusion of prospective jurors who expressedopposition to death penalty did not violate capitalmurder defendant's right to be tried by jurycomprised of fair cross-section of community;group defined solely in terms of shared attitude thatwould substantially impair group members fromperforming juror duties did not constitute distinctivegroup in community, subject to protection. RulesApp.Proc., Rule 45A.
1681 Criminal Law X3883110k388.3 Most Cited Cases
At most, absence of forensic investigator'stestimony that he took bullet from physician whoperformed autopsy to state 's firearms expert went toweight and credibility of the evidence related tobullet, rather than its admissibility in capital murderprosecution, where state presented sufficientevidence showing that bullet was in same conditionwhen it was delivered to expert as it was whenphysician removed it from victim's body.
(69] Criminal Law X404.30110k404.30 Most Cited Cases
Proof of an unbroken chain of custody is required inorder to establish sufficient identification of theitem and continuity of possession, so as to assurethe authenticity of the item.
170] Criminal Law X404.20110k404.20 Most Cited Cases
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In order to establish a proper chain of custody, thestate must show to a reasonable probability that theobject is in the same condition as, and notsubstantially different from, its condition at thecommencement of the chain.
(71] Criminal Law X404.20110k404.20 Most Cited Cases
The purpose for requiring that a chain of custody ofevidence be shown is to establish to a reasonableprobability that there has been no tampering withthe evidence.
1721 Criminal Law X404.30110k404.30 Most Cited Cases
While each link in the chain of custody of an itemmust be identified, it is not necessary that each linktestify in order to prove a complete chain of custody.
1731 Criminal Law X40430110k404.30 Most Cited Cases
Evidence that an item has been sealed is adequatecircumstantial evidence to establish the handlingand safeguarding of the item, for the purpose ofshowing the chain of custody.
1741 Criminal Law X404.65110k404.65 Most Cited Cases
Even if there was break in chain of custody forbullet, bullet was admissible in capital murderprosecution, where physician who performedautopsy identified bullet that was introduced intoevidence as the one he removed from victim's body.Code 1975, § 12-21-13.
1751 Homicide €1165203k1165 Most Cited Cases(Formerly 203k 1163, 203k235)
Evidence was sufficient to support conviction forcapital offense of murder committed duringfirst-degree robbery; defendant and codefendantsdecided to rob victim while riding around invehicle, defendant and codefendants caused victim'svehicle to strike their vehicle, victim was shot, andcodefendants drove victim's vehicle to farm and
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took vehicle 's stereo . Code 1975, § 13A- 5-40(a)(2)
[761 Criminal Law X29(14)110k29(14) Most Cited Cases(Formerly 203k607, 203k18(5))
The capital crime of robbery when a victim isintentionally killed is a single offense beginningwith the act of robbing or attempting to rob andculminating in the act of intentionally killing thevictim ; the offense consists of two elements,robbing and intentional killing . Code 1975,13A-5-40(a)(2).
[771 Homicide €607203k607 Most Cited Cases(Formerly 203k 18(5))
Although an intentional murder must occur duringthe course of the robbery in question in order toestablish the capital offense of murder committedduring a first-degree robbery, the taking of theproperty of the victim need not occur prior to thekilling . Code 1975, § 13A-5-40(a)(2).
[781 Homicide X607203k607 Most Cited Cases(Formerly 203k 18(5))
The fact that a victim was dead at the time propertywas taken would not militate against a finding ofrobbery, for the purpose of establishing the capitaloffense of murder committed during a first-degreerobbery, if the intervening time between the murderand the taking formed a continuous chain of events.Code 1975, § 13A-5-40(a)(2).
1791 Homicide x607203k607 Most Cited Cases(Formerly 203k18(5))
1791 Homicide €1325203k1325 Most Cited Cases(Formerly 203k282)
Although a robbery committed as a mereafterthought and unrelated to a murder will notsustain a conviction for the capital offense ofmurder-robbery, the question of a defendant' s intentat the time of the commission of the crime is usuallyan issue for the jury to resolve. Code 1975, §13A-5-40(a)(2).
1801 Homicide X915203k915 Most Cited Cases,(Formerly 203k152)
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The jury may infer from the facts and circumstancesthat a robbery began when the accused attacked thevictim and that the capital offense ofmurder-robbery was consummated when thedefendant took the victim's property and fled. Code1975, § 13A-5-40(a)(2).
181] Homicide X908203k908 Most Cited Cases(Formerly 203k145)
Defendant 's intent to rob a . victim can be inferred,for the purpose of a prosecution for the capitaloffense of murder-robbery , when the interveningtime, if any , between the killing and robbery waspart of a continuous chain of events . Code 1975, §13A-5-40(a)(2).
1821 Criminal Law X1144.13(3)1 IOk1144.13(3) Most Cited Cases
1821 Criminal Law C= I 144.13(4)I IOk1144.13(4) Most Cited Cases
1821 Criminal Law X1144.13(5)I IOkI 144.13(5) Most Cited Cases
In determining the sufficiency of the evidence tosustain a conviction, the Court of Criminal Appealsmust accept as true the evidence introduced by thestate , accord the state all legitimate inferencestherefrom, and consider the evidence in the lightmost favorable to the prosecution.
1831 Criminal Law X1159.2(1)I I OkI 159.2(1) Most Cited Cases
The role of appellate courts is not to say what thefacts are, but to judge whether the evidence islegally sufficient to allow submission of an issue fordecision to the jury.
1841 Criminal Law X1159.2(2)1 l OkI 159.2(2) Most Cited CasesEvidence.
An appellate court may interfere with a jury'sverdict only when the court reaches a clearconclusion that the jury's finding and judgment are
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wrong.
(851 Criminal Law €1159.3(4)11Oki 159.3(4) Most Cited Cases
When there is ample evidence offered by the stateto support a verdict, it should not be overturnedeven though the evidence offered by the defendantis in sharp conflict therewith and presents asubstantial defense.
1861 Criminal Law X552(1)110k552(1) Most Cited Cases
1861 Criminal Law C=552(3)110k552(3) Most Cited Cases
Circumstantial evidence alone is enough to supporta guilty verdict of the most heinous crime, providedthe jury believes beyond a reasonable doubt that theaccused is guilty.
1871 Double Jeopardy X30l35Hk30 Most Cited Cases
Using robbery as both element of capital offense ofmurder committed during first -degree robbery andas aggravating circumstance during sentencing didnot violate double jeopardy. U.S.C.A.Const.Amend. 5; Code 1975, §fi 13A-5- 40(a)(2),13A-5-49, 13A-5-50.
1881 Attorney and Client €13145k 131 Most Cited Cases
1881 Constitutional Law €5292k52 Most Cited Cases
1881 Constitutional Law X24292k242 Most Cited Cases
1881 Criminal Law X641.12(3)110k641.12(3) Most Cited Cases
1881 Eminent Domain X2(1.1)148k2(l.1) Most Cited Cases
Statute limiting court-appointed attorney fees to$1,000 for out-of-court work for each phase ofcapital trial does not violate separation of powersdoctrine, constitute taking without justcompensation, deprive indigent capital defendantsof effective assistance of counsel, or deny equal
Page 10
protection in violation of Fifth, Sixth, Eighth, andFourteenth Amendments ,' Alabama Constitution,and Alabama law. U.S.C.A. Const.Amends. 5, 6. 8,14; Code 1972, § 15-12-21(d).
189] Sentencing and Punishment X179635OHk 1796 Most Cited Cases
Electrocution as means of capital punishment doesnot constitute cruel and unusual punishment.U.S.C.A. Const.Amend. 8.
(90J Sentencing and Punishment X1796350Hk1796 Most Cited Cases
Alabama 's method of electrocution as means ofcapital punishment does not constitute cruel andunusual punishment ; there is no showing that thestate's method of enforcing a death sentence inflictsany more pain than is absolutely necessary.U.S.C.A. Const.Amend. 8.
1911 Sentencing and Punishment X1784(3)350Hk 1784(3) Most Cited Cases
1911 Sentencing and Punishment X1785(3)350Hk1785(3) Most Cited Cases
Trial court did not improperly override jury'sunanimous recommendation that capital murderdefendant be sentenced to imprisonment for lifewithout possibility of parole for capital conviction,where trial court complied with death penaltystatute's sentencing requirements in overriding jury'sverdict and specifically explained in sentencingorder reasons for overriding jury's verdict. Code1975, § 13A-5-47(e).
1921 Sentencing and Punishment X1784(3)350Hk1784(3) Most Cited Cases
1921 Sentencing and Punishment X1785(3)350Hkl785(3) Most Cited Cases
Death sentence was not imposed as result ofinfluence of passion, prejudice, or any otherarbitrary factor; trial court carefully consideredjury's advisory verdict of life imprisonment andweighed aggravating circumstances, including thatdefendant committed capital offense while he oraccomplice was engaged in commission of robberyand that defendant committed offense while undersentence of imprisonment, against mitigating
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circumstances , including that defendant was 18years old at time of offense , that defendantvoluntarily surrendered to police , that defendant didnot attempt to evade probation officer once he wasdeclared delinquent, that defendant was truthful tohis mother , that defendant was not violent towardhis girlfriend , that according to aunt defendant wastruthful , and that defendant exhibited remorse.Code 1975, ti§ 13A-5-49(1, 4), 13A-5-51(7),
13A-5-53(b)(1).
1931 Sentencing and Punishment 01681350Hk 1681 Most Cited Cases
1931 Sentencing and Punishment„1704350Hkl704 Most Cited Cases
1931 Sentencing and Punishment X1714350Hkl714 Most Cited Cases
Death sentence was appropriate for defendant, whocommitted capital offense of murder committed
during first-degree robbery, given aggravating
circumstances , including that defendant committedcapital offense while he or accomplice was engagedin commission of robbery and that defendantcommitted offense while under sentence ofimprisonment, and mitigating circumstances,including that defendant was 18 years old at time ofoffense , that defendant voluntarily surrendered topolice , that defendant did not attempt to evadeprobation officer once he was declared delinquent,that defendant was truthful to his mother, thatdefendant was not violent toward his girlfriend, thataccording to aunt defendant was truthful , and thatdefendant exhibited remorse . Code 1975, §§13A-5-49(1, 4), 13A-5-51(7), 13A-5-53(b)(2).
[941 Sentencing and Punishment €168135014k1681 Most Cited Cases
Imposing death sentence on defendant, who wasconvicted of capital offense of murder committedduring first-degree robbery, was neitherdisproportionate nor excessive, given that similarcrimes were being punished by death throughoutstate . Code 1975, § 13A-5-53(b)(3).*925 Bryan A. Stevenson and Randall ScottSusskind, Montgomery, for appellant.
Bill Pryor, atty. gen., and Kathryn D. Anderson,asst. atty. gen., for appellee.
Page 1 l
BASCHAI3, Judge.
The appellant, Shonelle Andre Jackson, wasconvicted of capital murder for the killing ofLe£rick Moore. The murder was made capitalbecause it occurred during the commission of arobbery in the first degree. See § 13A- 5-40(a)(2),Ala.Code 1975. The appellant was also convictedof first-degree theft of property for stealing avehicle owned by Lottie Flowers. See § 13A-8-3,Ala.Code 1975. After a sentencing hearing, the juryrecommended, by a vote of 12-0, that the. appellantbe sentenced to life imprisonment without thepossibility of parole for the murder of LefrickMoore. The trial court overrode the jury'srecommendation and sentenced the appellant todeath by electrocution for the capital offense. [FNIJThe trial court also sentenced the appellant, as ahabitual offender with three prior felonyconvictions, to life imprisonment for the theftconviction. See § 13A-5-9(c)(2), Ala.Code 1975.
FNI. The trial court's sentencing order isattached as an Appendix to this opinion.
The evidence showed that, on April 25, 1997, theappellant, Antonio Barnes, Eric Williams, andChristopher Rudolph were riding around thewestern area of Montgomery in a stolen, gray BuickLeSabre automobile. The appellant had previouslyasked Barnes to steal a vehicle for him, and Barneshad done so. The appellant was driving, and themen were looking for a person named "Cocomo,"who had slapped the appellant the previous night.The appellant, Barnes, and Rudolph were armedwith pistols, and Williams was armed with ashotgun.
As they were riding around, the young men noticedthat Lefrick Moore, who was driving a redChevrolet Caprice automobile, had a good stereosystem in his vehicle, and they decided to rob him.They followed him for some time. While they werefollowing Moore, the appellant purchased a softdrink from a Dairy Queen restaurant. When theywere on the service road leading into the SmileyCourt housing area, the appellant pulled the Buickin front of Moore's vehicle, causing Moore's vehicleto hit the Buick. The appellant got out of the Buickand shot at Moore. Williams also fired the shotgun.*926 Moore and his passenger, Gerard Burdette,
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got out of their vehicle and ran. Burdette ran to theSylvest Farms plant to get help. Moore, who had
been shot, fell facedown in the street and died. The
coroner testified that the cause of death was a
gunshot wound to his chest. Based on these events,
the appellant , Barnes , Williams, and Rudolph were
indicted for capital murder in connection withMoore's death.
The evidence showed that Lottie Flowers' gray1991 Buick LeSabre was stolen on April 25, 1997,
from the parking lot of the Brookview Apartments.
When police later recovered it, it had a brokenwindow, a broken steering column , and a dent onthe passenger side . Officers also ,recovered a DairyQueen cup from the vehicle. Testimony indicated
that it was the vehicle driven by the appellant andhis codefendants in connection with the murder.
Victoria Moss testified that, on April 25, 1997, as
she was driving near the Smiley Court area, she saw
a gray car "cut" in front of a red car. Shortlythereafter, one of the occupants of the red car gotout of the vehicle and ran toward a nearby housingarea . She also saw someone, who was lateridentified as the victim, running toward her vehicle,but he fell facedown in the street before he reached
her vehicle. She went to check on the man , but thegray car started corning toward her very quickly.She ran out of the road and into the grass until thegray car drove away. She checked on the victimand then went to get help.
Leroy Geary, who was employed nearby at theSylvest Farms plant , also saw the gray car "cut" in
front of the red car and run the red car into the curb.He then saw someone fire a weapon at the red carfrom the driver's side of the gray car. He described
the shot as a loud bang , like one from a shotgun,and stated that it was quickly followed by the soundof shattering glass and what sounded like at leasttwo rounds fired from a pistol . He also observedsomeone, who was later identified as Burdette,running toward the Sylvest Farms facility. Burdettestated that he had been in one of the vehicles
involved in the confrontation.
A.C. Porterfield owns a farm on Old HaynevilleRoad. In April 1997, he saw the victim's vehicleparked in the pasture on his farm and saw threeyoung black men walking around the vehicle. Hetold them to leave , and he telephoned a friend whoworked for the Montgomery Police Department.
Page 12
During their investigation of the murder , policeofficers found an empty .380 MagTech brand shellcasing at the scene of the murder ; amber glass inthe road at the crime scene that matched the blinkerlight on the victim 's car; a box containing 35unfired rounds of .380 MagTech brand ammunitionfrom the appellant's residence ; Flowers ' vehicle,which had a broken steering column, a brokenwindow , and a dent in the side; a Dairy Queen cupin Flowers ' vehicle; the front of a stereo on a carparked beside the victim 's car in Porteifield'spasture; and the victim's vehicle , from which thestereo was missing . The police also recovered thevictim's stereo from Williams' girlfriend 's residence.
Joe Saloom, a firearms and toolmarks examineremployed by the Alabama Department of ForensicSciences , examined the empty shell casing found atthe scene of the murder, the bullet recovered fromthe victim's body, and the box of ammunition foundat the appellant 's residence. He testified that theempty shell casing was a MagTech shell, like dieones in the box recovered from the appellant'sresidence . He explained that the bullet recoveredfrom the victim's body was a tired "jacketed" bulletthat was consistent with *927 . 380 caliber . He alsotestified that it would have been consistent withcoming from the empty shell casing the officersrecovered from the scene. He further explained thatthe shell casing would have been ejected when thegun was fired.
Antonio Barnes , who is also known as DeonBarnes , testified that the appellant asked him tosteal a car for him and that they left Trenholm Courtand went to the Brookview Apartments to do so.While there, he broke the back window and thesteering column and stole Lottie Flowers ' gray 1991Buick LeSabre. The appellant was with him at thetime, but he rode back to Trenholm Court withanother person . Barnes drove the car back toTrenholm Court and met the appellant , who thenstarted driving the vehicle. While there, theypicked up Christopher Rudolph and Eric Williams.Barnes had a . 357 magnum handgun the appellanthad given him earlier , the appellant had a .380pistol , Rudolph had a 9mm pistol , and Williams didnot have a weapon . They went by Barnes' sister-in-law's house, where they obtained a shotgun forWilliams.
The appellant told Barnes that Cocomo hadslapped him at a club and that he wanted to "holler
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at" Cocomo, so they drove around the western partof Montgomery looking for Cocomo. Barnestestified that they drove around for about 20 to 30minutes looking for Cocomo, but that they did notfind him. They then drove to the Smiley Court area,where they saw the victim driving his vehicle.Rudolph recognized the car and told them that thecar had a good stereo system. At that point, theappellant told the other three that they were about torob the victim. Barnes and Rudolph asked theappellant to take them back to Trenholm Court, butthe appellant refused to do so.
The appellant followed the victim for a while and,during that time, bought a soft drink from DairyQueen. When they were on the service road leadingto Smiley Court, the appellant sped around thevictim's vehicle and cut in front of it, causing thevictim's vehicle to tun into the Buick. Theappellant and Williams jumped out of the vehiclewith their weapons, and Barnes heard two shots.He saw the victim and his passenger running awayfrom the vehicle. Barnes and Williams then got intothe victim's vehicle, drove it to a farm off OldHayneville Road, and parked it in a pasture.Williams pulled the stereo out of the vehicle andwent through the trunk of the vehicle. They left thevictim's vehicle parked in the pasture.
Barnes testified that, when he saw the appellant thenext day and told him the victim had died, theappellant did not seem worried about it. Instead, hewanted to know where the victim's vehicle was.The appellant, Barnes , and another person went tothe pasture where the vehicle was parked. Theappellant stated that he wanted to take the motor outof the vehicle and strip the rest of the vehicle.However, Mr. Porterfield arrived about that time,and they left before they could strip the vehicle.
Eric Williams testified that, on the day of themurder, the appellant asked him if he knew how tosteal a car. He responded that he did not, but toldhim Antonio Barnes did. Later, the appellant andBarnes approached him driving a gray Buick, andhe got into the vehicle with them. Rudolph also gotinto the vehicle with them. The appellant wasdriving and had a .380 pistol with him. Barnes andRudolph also had weapons. Because Williams didnot have a weapon when he got into the car, theyretrieved a shotgun for him.
Williams testified that a person named Cocomo
Page 13
had previously slapped the appellant. He, theappellant, Barnes, and Rudolph *928 rode aroundlooking for Cocomo because the appellant wantedto talk to Cocomo about slapping him. They sawCocomo at one point, but Cocomo did not stop hisvehicle. After that, the appellant told the threepassengers he wanted to rob someone . Williamsasked the appellant to take him back to TrenholmCourt, but the appellant refused to do so.
As they were driving, they saw the victim, who wasdriving a red Chevrolet Caprice. At that point, theappellant told them they were going to rob him.They followed the victim for a while, during whichtime the appellant purchased a soft drink from DairyQueen. On the service road leading into SmileyCourt , the appellant pulled the Buick in front of thevictim's vehicle, and the victim's vehicle ran into theBuick. The appellant jumped out, started shooting,and said, "M----- f-----, no need in you runningnow." (R. 385.) The victim and his passenger gotout of the Caprice and ran. Williams heard twoshots. When he saw cars approaching the scene, heshot the shotgun into the air. After the shooting,Williams and Barnes got into the victim's vehicleand left. Williams was driving. They drove to OldHayneville Road and parked the vehicle in apasture . He testified that Barnes took the stereo outof the vehicle and that they left the vehicle parkedin the pasture and returned to Trenholm Court.
When Williams saw the appellant again that night,the appellant was returning from a club . The nextday, when he told the appellant that the victim haddied , the appellant responded that he "didn't give af--- because he didn 't stay where we stayed at." (R.392.)
Christopher Rudolph also testified about the eventssurrounding the murder. He got into the gray Buick,which the appellant was driving. At that time, hehad a 9mm pistol, the appellant had a .380 pistol,and Barnes had a .357 magnum handgun. Williamsdid not have a gun. However, the appellant askedRudolph if he had another gun because he andWilliams had some business to take care of with aperson named Cocomo. They picked up a shotgunhe owned and gave it to Williams, and then drovearound the west side of Montgomery looking forCocomo. They saw Cocomo at one point, but hedrove away.
Rudolph remembered a discussion about
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committing a robbery, but he did not remember whoinitiated the discussion. When they were near theSmiley Court area, they saw the victim. He noticedloud music coming from the victim's car. Theappellant said he wanted to rob the victim, so theyfollowed his car for a while. While they werefollowing the victim, the appellant bought a softdrink from a Dairy Queen. When they were on theSmiley Court service road, the appellant pulled theBuick in front of the victim's vehicle, causing thevictim's vehicle to hit the Buick. The appellant gotout and shot once, breaking the glass in the victim'svehicle. The victim and his passenger ran awayfrom the victim's vehicle. Williams then got out ofthe car and shot into the air. The.appellant got backinto the car and drove to where the victim had fallenfacedown in the street . The appellant stated that hewanted to go through the victim's pockets, butRudolph stopped him from doing so. Thereafter, heand the appellant went by a club, but it was closed,so the appellant dropped him off and left. He didnot see the appellant again after that.
Detective Andrew Signore, who was employed bythe Montgomery Police Department, led theinvestigation in the case . He testified that Barnes,Williams, and Rudolph turned themselves in andmade statements to the police about the murder.*929 Barnes made a statement on April 27, 1997,and Williams and Rudolph made statements onApril 28, 1997.
Signore testified that the appellant voluntarily wentto the police station on April 29, 1997, atapproximately 2:05 p.m. Signore advised theappellant of his Miranda rights at approximately2:16 p.m., and the appellant voluntarily waivedthose rights. Detective C.D. Phillips was presentthe entire time. Signore testified that neither officermade any threats or promises to the appellant.While there, the appellant gave several differentaccounts about what happened on the day of themurder. He initially denied any involvement in themurder and denied being with the threecodefendants at the time of the murder. However,he admitted that he had been with one of thecodefendants earlier in the afternoon or eveninglooking for Cocomo.
Signore then told the appellant that the officers hadrecovered a Dairy Queen cup from Flowers' vehicleand that his fingerprints were on the cup. At thatpoint, the appellant admitted he had been in
Page 14
Flowers' vehicle, but he denied being involved inthe murder. Signore testified that the appellantneeded a "reality check" because the othercodefendants had already all testified that theappellant had been driving the stolen vehicle andhad stopped at Dairy Queen to buy a drink.Although he knew that the officers had recovered aDairy Queen cup from the vehicle, he did not knowwhether the appellant's fingerprints were on the cup.The appellant then admitted that he had askedBarnes to steal a vehicle, that he went to theBrookview Apartments with Barnes to steal theBuick, and that he had been driving around the westside of Montgomery in the vehicle. However, hestated that he separated from the codefendantsbefore the murder. The officers videotaped andprepared a transcript of this statement.
After they videotaped his statement, the appellantasked if he could change his statement and admittedthat he had not told the officers the truth. He thenadmitted that he had been with the threecodefendants and that he had had a .380 pistol thatevening. However, he said that Barnes was driving.In most other respects, his statement matched thoseof his three codefendants. When he asked whetherthe victim was killed with a shotgun, the officers didnot respond, and the conversation ended.
(1][21 The appellant raises several issues on appealthat he did not present to the trial court. The lack ofan objection at trial will not bar our review of anissue in a case involving the death penalty.However, it will weigh against any claim ofprejudice. Er parte Kennedy, 472 So.2d 1106(Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88L.Ed.2d 325 (1985). Thus, we have reviewed therecord for any error, whether plain or preserved. SeeRule 45A, Ala. R.App. P. Rule 45A provides:
"In all cases in which the death penalty has beenimposed, the Court of Criminal Appeals shallnotice any plain error or defect in the proceedingsunder review ... whenever such error has orprobably has adversely affected the substantialright of the appellant."
"[This] plain-error exception to thecontemporaneous-objection rule is to be 'usedsparingly, solely in those circumstances in which amiscarriage of justice would otherwise result.' "United States v. Young, 470 U.S. 1, 15, 105 S.Ct.1038, 1046, 84 L.Ed.2d 1 (1985) (quoting UnitedStates v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584,1592, 71 L.Ed.2d 816 n. 14 (1982)).
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1.
[3] The appellant's first argument is that the trialcourt improperly granted the State's motion inlimine, which prevented *930 die defense frompresenting evidence that the victim was a drugdealer. He contends that the motive for the murderwas retaliation for a bad drug deal, not robbery.Thus, he argues that the ruling effectively preventedhim from presenting a defense, fromcross-examining witnesses , from testifying, andfrom presenting mitigation evidence. He furthercontends that such evidence would have shown theweakness of the State's contention that the murderoccurred during a robbery, whitb made the murdercapital , and that the jury could have determined thathe was guilty only of intentional murder, anoncapital offense.
The State filed a pretrial motion in limine askingthe trial court to prevent the defense fromintroducing evidence that the victim had been adrug dealer, contending that such evidence wouldbe irrelevant and immaterial . In response, thedefense argued that such evidence was relevant tothe motive for the confrontation and would berelevant in sentencing . The trial court conducted ahearing on the motion . At that time , defensecounsel argued that he wanted to cross-examinewitnesses about whether they knew the victim was adrug dealer . He also stated that the defense theorywas that a bad drug deal, and not robbery, was themotive for the murder. The trial court granted theState 's motion,
On the day the trial began, the following occurred:"[Defense counsel]: Judge, we would ask theCourt to reconsider the ruling on the motion inlimine and at least withhold ruling until maybethe sentencing phase . Our client--we have notmade a decision as to whether we are going toallow our client to testify or not. His testimony, ifhe does testify, will be diametrically opposed tothe facts--underlying facts as the district attorneyhas presented them, which creates a conflict and ajury question. His testimony deals with a drugdeal. I don't want to be put in a situation wherewe can't ask our client questions about what reallyhappened in this case . We would be limited, tohave his testimony limited."The Court: Well, you know, that's the first Ihave heard of that, for the record. It's not acriticism . It's just for the record. You know, I
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will-- you know, if and when you decide whetheror not your client is going to testify, I will let youask me to reconsider it at that point."
(R. 37-38.) The defense did not raise the issueagain and did not ask the trial court to reconsider itsruling.
[4] Where a party seeking , to introduce evidencesuffers an adverse ruling on the opposing party'smotion in limine , the adverse ruling alone , unlessabsolute or unconditional , does not preserve theissue for appellate review. Morton v. State, 651So.2d 42 (Ala.Cr.App.1994). In this case , becausethe trial court indicated its willingness to reconsiderits ruling on the motion , that ruling was notabsolute . Therefore, the appellant "was required tooffer the testimony into evidence and obtain a rulingto which , if adverse, [he] could make an offer ofproof and thereby preserve the issue for appeal.(He] did not do so and thus , has not preserved anyerror for review ." Perry v. Brcrkefreld, 534 So.2d602, 607 (Ala.1988 ). Accordingly, we must reviewthe appellant 's claim under the plain error rule.Rule 45A, Ala. R.App. P.
[5] We have reviewed the motion in limine, thedefense 's response, the discussions about themotion , and the remaining evidence in this case.Based on that review, we do not find any plain errorin this regard . The allegation that the murder wascommitted in retaliation for a bad drug deal was notpresented until after the State had filed its motion inlimine . The *931 appellant did not mention a baddrug deal in his statements to the police and, in fact,he stated that he did not know the victim.Furthermore , Burdette , Barnes , Williams, andRudolph did not mention anything about a bad drugdeal in their statements . Instead, the appellant madethis allegation only after the State had filed itsmotion in limine . Furthermore , the appellant onlyspeculated that some of the witnesses might haveknown that the victim was a drug dealer and thatthey might testify that the victim was killed becauseof a bad drug deal. Likewise, he did not make anoffer of proof as to what the appellant 's testimony inthis regard would be. Finally, the trial court wouldhave reconsidered its ruling before the trial began ifthe appellant had informed it that he intended totestify . If the court had changed its ruling, theappellant could have cross-examined witnesses andtestified about the alleged bad drug deal . However,the appellant did not inform the trial court that heintended to testify and , in fact, did not raise the
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issue concerning the motion in limine again. Forthese reasons , we reject the appellant's claims.
II.
The appellant's second argument is that the trialcourt improperly admitted into evidence hisstatement about the murder and improperly refusedto conduct a suppression hearing outside thepresence of the jury. Before trial , he filed a motionto suppress his statement and requested that the trialcourt conduct a hearing on his notion. The trialcourt denied the motion without conducting ahearing . At trial, the State introduced a videotapeof, and a written copy of, the appellant's statementinto evidence.
A.
[6] The appellant alleges that he did not voluntarilymake the statement. First, he contends that, becauseof his age and lack of experience with lawenforcement officers and because he voluntarilywent to the police station, he was "particularlyvulnerable to police tactics of deception."(Appellant's brief at p. 14.) In his motion tosuppress his statement, the appellant contended thatthe circumstances surrounding the interrogationwere coercive, but he did not allege any specificfacts to support his contention. Because he did notpresent the specific claim he now raises to the trialcourt, we will review it under the plain error rule.Rule 45A, Ala. R.App. P.
[7] Second, the appellant contends, as he did in hismotion to suppress his statement, that DetectiveSignore tricked him into giving the statement bylying to him about having found his fingerprints ona Dairy Queen cup recovered from Flowers' vehicle.In support of his motion to suppress, the appellantrecited a portion of Detective Signore's preliminaryhearing testimony. At the preliminary hearing andat trial , Detective Signore admitted that, eventhough officers had recovered a Dairy Queen cup.from Flowers' vehicle, he did not know whether theappellant's fingerprints were on the cup. Hetestified that he knew from the three codefendantsthat the appellant had been with them and hadpurchased a soft drink from Dairy Queen on thenight of the murder. However, in his initialstatement to Signore, the appellant had denied beingwith any of the codefendants on the day of themurder and had denied being in Flowers' vehicle.
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Signore testified that he made the statement aboutthe cup and the fingerprintse because of those denialsand to encourage the appellant to be truthful withhim. After Detective Signore made therepresentations about the cup, the appellantadmitted that he had been in the car and had *932had the Dairy Queen cup, but he stated that heseparated from the codefendants early in theevening and denied being involved in the murder.Even though he made several statements about hisconduct on the day of the murder, the appellantnever admitted that he killed the victim.
[8][9][l0][ll][12][13][l4][15][16] Confessionsand inculpatory statements are presumed to beinvoluntary and inadmissible. Ex parte Callahan,471 So.2d 463 (Ala.), cert. denied, 474 U.S. 1019,106 S.Ct. 567, 88 L.Ed.2d 552 (1985). For aconfession to be properly admitted into evidence,the State must prove that " 'the defendant wasinformed of his Miranda rights and that theconfession was voluntarily given.' " Johnson v.State, 680 So.2d 1005, 1007 (Ala.Cr.App.1996)(quoting Mann v. State, 581 So.2d 22, 23(Ala.Cr.App.1991))_
" 'In detennining whether a confession isvoluntary, the trial court's finding of voluntarinessneed only be supported by a preponderance of theevidence. Seawright v. State, 479 So.2d 1362(Ala.Crim.App. 1985). The trial court's decisionwill not be disturbed on appeal unless it ismanifestly contrary to the great weight of theevidence.' ''
Howard v. State, 678 So.2d 302, 306(Ala.Cr.App.1996) (quoting Dixon v. Slate, 588So.2d 903, 907 (Ala.1991), cert. denied, 502 U.S.1044, 112 S.Ct. 904, 116 L.Ed.2d 805 (1992)).
" ' "in reviewing the correctness of the trialcourt's ruling on a motion to suppress, this Courtmakes all the reasonable inferences andcredibility choices supportive of the decision ofthe trial court." ' Kennedy v. State, 640 So.2d 22,26 (Ala.Cr.App. 1993), quoting Bradley v. State,494 So.2d 750, 761 (Ala.Cr.App.1985), affd, 494So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923,107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). A trialcourt's ruling on a motion to suppress will not bedisturbed unless it is 'palpably contrary to thegreat weight of the evidence.' Parker v. State,587 So.2d 1072, 1088 (Ala.Cr.App.1991)."
Rutledge v. State. 680 So.2d 997, 1002(Ala.Cr.App. 1996).
"The Supreme Court has stated that when a court
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is determining whether a confession was givenvoluntarily it must consider the 'totality of thecircumstances.' Boulden v. Holman, 394 U.S.478, 480, 89 S.Ct. 1138, 1139- 40, 22 L.Ed.2d433 (1969); Greenwald v. Wisconsin , 390 U.S.519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77(1968); see Beecher v. Alabama , 389 U.S. 35,38, 88 S.Ct. 189, 191, 19 L.Ed.2d 35 (1967).Alabama courts have also held that a court mustconsider the totality of the circumstances todetermine if the defendant's will was overborneby coercion or inducement. See Er pane
Matthews, 601 So.2d 52, 54 (Ala.) ( stating that acourt must analyze a confession by looking at thetotality of the circumstances ),,-cert. denied, 505U.S. 1206, 112 S.Ct. 2996; 120 L.Ed.2d 872(1992); Jackson v. State. 562 So.2d 1373, 1380(Ala.Cr.App.1990) ( stating that , to admit aconfession , a court must determine that thedefendant's will was not overborne by pressuresand circumstances swirling around him); Eakesv. State. 387 So.2d 855, 859 (Ala.Crim.App.1978)
(stating that the true test to be employed is'whether the defendant 's will was overborne at thetime he confessed ') (emphasis added)....
"[T]he test of involuntariness of a confession, orother inculpatory statement , is not whether thedefendant bargained with the police, but whetherin his discussions with the police , which mayhave included bargaining , the defendant's willwas overborne by 'apprehension of harm *933 orhope of favor.' See Gaddv, 698 So.2d at 1154(quoting Ex parte Weeks, 531 So.2d 643, 644(Ala.1988)); Culombe, 367 U. S. at 602 , 81 S.Ct.at 1879[, 6 L.Ed.2d 1037]; Jackson, 562 So.2d at1380. To determine if a defendant's will has beenoverborne , we must assess ' the conduct of the lawenforcement officials in creating pressure and thesuspect 's capacity to resist that pressure '; '[t]hedefendant 's personal characteristics as well as hisprior experience with the criminal justice systemare factors to be considered in determining [thedefendant's] susceptibility to police pressures.'Jackson, 562 So.2d at 1380-81 (citationsomitted)."
McLeod v. State, 718 So.2d 727, 729-30 (Ala.),cert. denied, 524 U.S. 929, 118 S.Ct. 2327, 141L.Ed.2d 701 ( 1998). Finally , with regard tomisrepresentations by police officers during aninterrogation , we have held:
"Alabama follows the general rule that aconfession is not inadmissible merely because it
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was induced by a trick or misrepresentation thatwas not reasonably calculated to lead the accusedto confess falsely . Fincher v. State, 211 Ala. 388,100 So. 657 (1924); Bates v. State, 549 So.2d601 (Ala.Cr.App.1989); Barrow v. State, 494So.2d 834 (Ala.Cr.App.1986); 2 C. Gamble,McElroy's Alabama Evidence § 200.07(7) (5thed.1996)."
Campbell v. State. 718 So.2d 123, 136(Ala.Cr.App.1997 ), cert. denied, 525 U.S. 1006,119 S.Ct. 522, 142 L.Ed.2d 433 (1998). See alsoGilder v. State, 542 So.2d 1306 (Ala.Cr.App.1988).
'[M]ore subtle forms of psychologicalmanipulation , such as trickery or deception by thepolice , have not been considered sufficientlycoercive , standing alone, to render a confessionor incriminating statement involuntary . Instead,the trial judge must examine the totality of thecircumstances surrounding the statement todeter mine its voluntariness. Frazier v. Cupp, 394U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).'
Barbour v. State, 673 So.2d 461, 467(Ala.Cr.App.1994), aft'd, 673 So.2d 473 (Ala.1995)
cert. denied, 518 U.S. 1020, 116 S.Ct. 2556, 135L.Ed.2d 1074 (1996) (quoting Fx pane Hill, 557So.2d 838, 841 (Ala .1989)).
Detective Signore testified about the circumstancessurrounding the appellant 's confession , includingthe fact that the appellant initiated contact with thepolice about the murder investigation . He testifiedthat the appellant voluntarily went to the policestation at 2 :05 p.m, on April 29, 1997. At 2:16p.m., he and Detective C.D. Phillips advised theappellant of his Miranda rights , and the appellantsigned a waiver of rights form. Thereafter, theappellant made several statements about hiswhereabouts on the day of the murder. His
' statement that was admitted at trial began at 3:55p.m. Detective Phillips was present during the entiretime Signore spoke with the appellant . Signoretestified that neither he nor Phillips threatened theappellant or promised him anything to convince himto give a statement.
Based on the totality of the circumstances, weconclude that the appellant 's will was not overborneby the conduct of law enforcement officials . First,the appellant initiated the contact with the policeofficers about the murder investigation . Second, theofficers did not subject him to . a lengthyinterrogation. Third, Signore 's representations
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about the fingerprints on the cup, standing alone,were not reasonably calculated to lead the appellantto confess falsely. Rather, after the appellantdenied being connected to Flowers' vehicle or to themurder, Signore simply attempted to inform theappellant that he had already been connected to thevehicle *934 used in the commission of the murder,so the appellant would be truthful in making hisstatement. Fourth, the appellant's contention that hewas especially susceptible to police tactics ofdeception is belied by the presentence investigationreport, which shows that he had previously beenarrested on numerous other charges. Fifth, there isno evidence that the officers threatened or coercedthe appellant or that they promised him anything inexchange for his statement. And, sixth, we havereviewed the videotape of the statement, and it doesnot indicate that the appellant was coerced intogiving the statement. Barbour, supra. Thus, weconclude that Signore's misrepresentation was notsufficient to render the appellant's statementinvoluntary. Therefore, the trial court properlydenied the appellant's motion to suppress hisstatement.
B.
[17] Second, the appellant contends that the trialcourt erred in admitting his statement without firstconducting a suppression hearing outside thepresence of the jury. Although he requested ahearing in his written motion, he did notsubsequently object when the trial court denied themotion without conducting a hearing. Because theappellant did not present this argument to the trialcourt, we review it for plain en-or. Rule 45A, Ala.R.App. P.
[18] In his written motion to suppress hisstatement, the appellant argued only that DetectiveSignore had made a misrepresentation to him aboutfinding his fingerprints on the Dairy Queen cuprecovered from Flowers' vehicle. He did not allegeany other facts in support of his contention that hedid not voluntarily make the statement. Thus, theonly question before the trial court was the legalquestion of whether Signore's misrepresentationrendered the statement involuntary. As set forthabove, we have reviewed the evidence presented inthe motion to suppress and at trial concerning thecircumstances under which the appellant made thestatement, and we have concluded that he made itvoluntarily. Ex parte Price, 725 So.2d 1063
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(Ala.1998); Henvy v. State, 468 So.2d 896(Ala.Cr.App.1984), cert. denied, 468 So-2d 902(Ala.1985). Under the particular facts of this case,including our finding that the appellant made hisstatement voluntarily, we find that error, if any, inthe trial court's decision to deny the motion tosuppress without conducting a hearing did not riseto the level of plain error and. was, at most, harmlesserror. Rule 45, Ala. R.App. P.; Chapman v.California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d705 (1967).
[19] The appellant's third argument is that the trialcourt improperly considered his juvenile record inoverriding the jury's recommendation of a sentenceof imprisonment for life without the possibility ofparole and in sentencing him to death. Specifically,he contends that, in stating that it was relying on hisjuvenile record to rebut the statutory mitigatingcircumstance of his age at the time of the offense,the trial court essentially circumvented the law andused his juvenile record as a nonstatutoryaggravating circumstance to override the jury'srecommendation. This court addressed an almostidentical claim in Burgess v. State, 811 So.2d 557(Ala.Cr.App. 1998), holding as follows:
"Burgess specifically argues that the trial courterred by considering his history of juvenileadjudications to negate the statutory mitigatingcircumstance of Burgess's lack of a significantcriminal history and Burgess's age at the time theoffense was committed. In doing so, Burgesssays, the trial court 'deploy[ed] *935 the priordelinquencies as if they were nonstatutoryaggravation to effectively tip the balance in -favorof death.' (Appellant's brief, p. 18.)"Because juvenile adjudications are notconvictions under Alabama law, they cannot beconsidered as prior criminal activity underAlabama's capital sentencing scheme. Ex parteDavis. 718 So.2d 1166, 1178 (Ala.1998);Freeman v. State. 555 So.2d 196, 212(Ala.Cr.App.), affd, 555 So.2d 215 (Ala.1989),cert. denied, 496 U.S. 912, 110 S.Ct. 2604, 110L.Ed.2d 284 (1990). See Baldwin v. State, 456So-2d 117, 125 (Ala.Cr.App.1983), affd; 456So.2d 129 (Ala.1984), acrd, 472 U.S. 372, 105S.Ct. 2727, 86 L.Ed.2d 300 (1985). Thus,juvenile adjudications cannot negate the statutorymitigating circumstance that the defendant has nosignificant history of prior criminal activity.
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Freeman, 555 So.2d at 212. Only convictionscan negate that statutory mitigating circumstance.Id."We disagree with Burgess's characterization ofthe trial court's consideration of his juvenileadjudications. First, the trial court did not findBurgess's juvenile adjudications to be anaggravating circumstance. The record reflectsthat the trial court found only one aggravatingcircumstance: that the murder was committedduring the course of a robbery in the first degree.Moreover, the trial court did not, as Burgessmaintains, use Burgess 's juvenile adjudications tonegate the statutory mitigating circumstances thatBurgess lacked a significant criminal history andthat Burgess was only 16 years old at the time ofthe offense. Instead, it is clear from the trialcourt's sentencing order that the court consideredBurgess's history of juvenile adjudications inassessing the appropriate weight to assign to thesestatutory mitigating circumstances."Under Alabama's capital punishment statute, thetrial court is required to engage in anindividualized assessment of the weight to assignto the aggravating and mitigating circumstancesfound to exist in a particular case in order todetermine the propriety of a sentence of death.13A-5- 47(e), Ala.Code 1975; Ex parte Clisbv.456 So.2d 105, 108 (Ala.1984), cert. denied, 470U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 391(1985). It is clear, moreover, that this weighingprocess must not be 'a mere tallying ofaggravating and mitigating circumstances for thepurpose of numerical comparison.' § 13A-5-48,Ala.Code 1975. See Ex parte Clisbv, 456 So 2dat 108-09 ('The determination of whether theaggravating circumstances outweigh themitigating circumstances is not a numerical one,but instead involves the gravity of the aggravationas compared to the mitigation.'). Although it iswell-settled law in Alabama that juvenileadjudications cannot be used to negate thestatutory mitigating circumstance that thedefendant has no significant history of priorcriminal activity, Freeman, supra, 555 So.2d at212, the courts of this state have never held thatthe trial court must entirely ignore a defendant'sjuvenile adjudications in performing its 'weighing'duties. The trial court's consideration of adefendant's juvenile adjudications whenconducting the weighing process offends neithergeneral constitutional principles nor specificprovisions of Alabama law. In fact, Alabama's
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capital punishment statute contemplates that thetrial court will have any 'prior juvenile record ofthe defendant before it when it is deciding uponthe proper sentence: pursuant to § 13A-5-47,Ala.Code 1975, the trial court is required toconsider the presentence report of a defendant'convicted of capital murder, and *936 Rule26.3(b)(2), Ala.R.Crirn.P.,. specifically providesfor the inclusion of the defendant's prior juvenilerecord in the presentence report.to
"Alabama's capital punishment statute does notspecify the matters the trial court may considerwhen engaging in the process of weighing theaggravating circumstances and the mitigatingcircumstances in a particular case. Nor does thestatute require the trial court to make expressfindings explaining the process by which itweighed the aggravating circumstances and themitigating circumstances. We conclude that atrial court may. consistent with Alabama law,deem a defendant's juvenile adjudications to be arelevant consideration in its assessment of theweight to assign to the statutory mitigatingcircumstances of a defendant's lack of asignificant criminal history and a defendant's ageat the time of the offense."
Burgess, 811 So.2d at 605-06 (footnotes omitted).
In this case, a review of the trial court's sentencingorder shows that the court found that only twostatutory aggravating circumstances existed: (1) thecapital offense was committed by a person. undersentence of imprisonment, and (2) the capitaloffense was committed while the defendant wasengaged in a robbery or an attempted robbery.Nothing in the sentencing order indicates that thetrial court improperly treated the appellant'sjuvenile record as a nonstatutory aggravatingcircumstance. Furthermore, the trial court did notuse the appellant's juvenile record to negate thestatutory mitigating circumstance of the .appellant'sage at the time of the offense. [FN2] Instead, thetrial court used that record to assess the weight itwould assign to that mitigating circumstance.Under the reasoning of Burgess, such an assessmentwas proper. Therefore, the trial court did notimproperly consider the appellant's juvenile recordin overriding the jury's sentencing recommendationand in sentencing him to death.
FN2. In rejecting the mitigating
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circumstance that the appellant did nothave a significant history of prior criminalactivity, the trial court specifically notedthat the appellant's juvenile record was nota matter to consider in determiningwhether the circumstance exists. Instead,it found that the appellant did have asignificant history of prior criminal activitybecause he had three prior felonyconvictions.
IV.
The appellant's fourth argument is that the trialcourt made several errors in its sentencing order.
A.
[20][21] First, the appellant argues that the trialcourt improperly considered his physicalcharacteristics in considering the statutorymitigating circumstance of his age at the time of theoffense. He contends that his height and weight arearbitrary variables that are not relevant to his moralor criminal responsibility, and that the trial court'sconsideration of those attributes deprived him of anindividualized and reliable sentencingdetermination.
"[T]he decision as to whether a particularmitigating circumstance is sufficiently proven bythe evidence and the weight to be accorded to itrests with the trial court. See Hanev v. State. 603So.2d 368 (Ala.Cr.App.1991), affirmed, 603So.2d 412 (Ala. 1992).
'Although consideration of all mitigating
circumstances is required by the United StatesConstitution, Lockett v. Ohio, 438 U.S. 586, 98S.Ct. 2954, 57 L.Ed.2d 973 (1978), the decisionof whether a particular mitigating *937circumstance in sentencing is proven and theweight to be given it rests with the judge and jury.. Lucas v. State, 376 So.2d 1149 (Fla. 1979).'
Smith v. State. 407 So.2d 894, 901 (Fla. 1981)." '"Harrell v. State, 470 So.2d 1303, 1308(Ala.Cr.App.1984), affirmed, 470 So.2d 1309(Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269,88 L.Ed.2d 276 (1985). See also McWilliams v.
State, [640] So.2d [982] (Ala.Cr.App.1991)_"Giles v. State, 632 So.2d 568, 572(Ala.Cr.App.1992), affd, 632 So.2d 577 (Ala.1993), cert. denied, 512 U.S. 1213, 114 S.Ct. 2694, 129L.Ed.2d 825 (1994).
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We have carefully reviewed the trial court'ssentencing order, and we find the appellant'sargument to be without merit. In assessing theweight it would assign to the age mitigatingcircumstance, the trial court considered theappellant's height, weight, age, physical maturity,and juvenile record [FN3]; the fact that theappellant was the father of a three-month-old child;the fact that the appellant had used marijuana dailysince the age of 14; and the fact that the appellantconsumed alcohol on a regular basis. The trialcourt included the appellant's height and weight inthe portion of its analysis that concluded that theappellant was a physically mature adult at the timeof the offense. However, those physical attributeswere only two of several factors the trial courtconsidered in deciding what weight to assign to theappellant's age as a mitigating circumstance. Giles.supra . Accordingly, the trial court did not err in thisregard.
FN3. As discussed in Part III of thisopinion, the trial court properly consideredthe appellant's juvenile record indetermining what weight it would assign tothe age mitigating circumstance.
B.
[22] Second, the appellant argues that the trialcourt improperly plagiarized a sentencing orderwritten by a different judge, in another case, inanother state. Specifically, he challenges the trialcourt's entire analysis of the age mitigatingcircumstance, and again contends that the trial courtdeprived him. of an individualized sentencingdetermination.
In its sentencing order , the trial court specificallystated , "When considering the weight to be given toJackson's age as a mitigating factor , this case isquite similar to Shellito v. State, 701 So.2d 837(Fla.1997 )." (C.R.177 .) The court then analyzedthe mitigating circumstance in a form similar to thatused by the court in Shellito. Although it adaptedthe Florida court ' s reasoning, the trial court clearlyincorporated the facts and evidence presented inthis case in performing its analysis . Thus, the trialcourt made an individualized sentencingdetermination, and the appellant 's argument iswithout merit.
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C.
[23] Third, the appellant argues that the trial courtimproperly negated the role of the jury insentencing . Specifically, he asserts that the trialcourt relied too heavily on information the jury didnot hear and improperly suggested that the jury'srecommended sentence was based on residualdoubt. We disagree.
[24][25][26] At the outset, we note that, as set forthin Part XVIII of this opinion, in Alabama, the trialcourt is the sentencing authority. Freeman v. State,555 So.2d 196 (Ala.Cr.App.1988), affd, 555 So.2d215 (Ala.1989), cert. denied, 496 U.S. 912, 110S.Ct. 2604, 110 L.Ed.2d. 284 (1990); Murry v.State, 455 So.2d 53 (Ala.Cr.App.1983), rev'd onother grounds, 455 So.2d 72 (Ala.1984). However,before overriding a *938 jury's sentencingrecommendation, the trial court must determine thatthe aggravating circumstances outweigh themitigating circumstances. The trial court made thatdetermination in this case. Furthermore, insentencing the appellant to death, the trial courtcarefully explained why it overrode the jury'srecommendation that he be sentenced toimprisonment for life without the possibility ofparole. By necessity, a trial court, in sentencing;may rely on information the jury did not bear. Asthe trial court noted in this case, the court has thebenefit of the presentence investigation, anyadditional evidence presented at the sentencinghearing before the court, and its knowledge of legalprecedent, particularly as it applies to the weighingof aggravating and mitigating circumstances. Thus,the appellant's argument that the trial court reliedtoo heavily on information the jury did not hear iswithout merit.
Further, the trial court did not improperly suggestthat the jury made its recommendation based onresidual doubt. In its order, the trial court attemptedto determine what weight to give the jury'ssentencing recommendation. In doing so, the courtsought to compare this case to similar cases and totest the reliability of the jury's advisory verdict.When trying to test the reliability of the advisoryverdict, the court speculated that the jury may havemade its recommendation based on a belief thatanother of the codefendants fired the fatal shot.However, the trial court ultimately concluded thatassigning weight to the advisory verdict based ontesting the reliability of the advisory verdict was not
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appropriate. Thus, the trial court did not base itssentencing determination ' on speculation aboutjurors' residual doubt. Rather, the trial courtcarefully considered the jury's recommendation inoverriding that recommendation and sentencing theappellant to death. Therefore, this contention iswithout merit.
D.
[27] Fourth, the appellant argues that the trial courtdid not make an adequate determination of hisculpability for the offense. However, a review ofthe sentencing order reveals that this contention isrneritless . The trial court clearly states that theevidence showed that the appellant shot the victim.It also states that the appellant was the ringleader inthe offense . Therefore, we reject this claim.
V.
[28][29] The appellant's fifth argument is that thetrial court should have instructed the jury on thelesser included offense of robbery. However, hedid not request an instruction on robbery, and hedid not object when the trial court did not give one.Therefore, we review this contention for plain error.Rule 45A, Ala. R.App. P.
Section 13A-1-9(b), Ala.Code 1975, provides:"The court shall not charge the jury with respect toan included offense unless there is a rational basisfor a verdict convicting the defendant of theincluded offense. " (Emphasis added.) In Boyd v.State, 699 So .2d 967 (Ala.Cr.App. 1997), we held:
" 'A defendant accused of a greater offense isentitled to have the trial court charge on anylesser included offense if there is any reasonabletheory from the evidence to support the lessercharge , regardless of whether the state or thedefendant offers the evidence . Ex purte Pruitt.457 So.2d 456 (Ala.1984 ); Parker v. State, 581So.2d 1211 (Ala.Cr.App.1990 ), cert. denied, 581So.2d 1216 (Ala.1991 ). A court may properlyrefuse to charge on a lesser included offense onlywhen (1) it is clear to the judicial mind that thereis no evidence tending to bring *939 the offensewithin the definition of the lesser offense ...Anderson V. State, 507 So.2d 580(Ala.Cr.App. 1987).... Section 13A-1-9(b)provides, "The court shall not charge the jurywith respect to an included offense unless there isa rational basis for a verdict convicting the
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defendant of the included offense."'"Breckenridge v. State. 628 So.2d 1012, 1016(Ala.Cr.App.1993)."
699 So.2d at 972.
The evidence presented at trial showed that therobbery occurred after the murder . The appellantcontends that the trial court should have instructedthe jury on the lesser included offense of robberybecause the robbery allegedly was a mereafterthought to the murder and it was not committedduring the robbery . In fact , he contended at trialthat he did not have anything to do with the robberyand that Barnes and Williams stole the car onlybecause he drove away from the crime scenewithout them . He now contends that, if the jury hadbelieved his theory , it could have found him guiltyof the separate offenses of intentional murder androbbery . We disagree.
The trial court instructed the jury on the lesserincluded offense of intentional murder , thus givingthe jury the option of finding that the appellantcommitted the murder but not the robbery.However , under the evidence presented, theappellant did not actually rob the victim, althoughthere was sufficient evidence to show that that washis intent in initiating the confrontation . Under theappellant's theory that the robbery was a mereafterthought and that it did not occur during themurder, the jury could have found the appellantguilty of murder, but he would not have been guiltyof the robbery . Thus , if the jury had believed theappellant's theory and determined that the robberydid not occur during the murder, there would nothave been a rational basis for it to find that theappellant was guilty of robbery.
The appellant also contends that the jury could'have believed that the robbery did not occur duringthe murder but still could have found him guilty ofbeing an accomplice to the robbery. Thiscontention is not supported by the record . As statedabove , the evidence clearly showed that theappellant's intent when he started following thevictim was to rob the victim. If the jury determinedthat the appellant was guilty of the robbery , even ifit determined that he did not kill the victim, then itcould only have convicted him of capital murder.Under the evidence presented , he was at least anaccomplice to the murder and, more likely, theactual murderer . There was simply no rational basisunder the evidence presented on which the jury
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could find the appellant guilty of robbery and notguilty of murder . Therefore , we do not find anyplain error in this regard.
VI.
[30][31][32] The appellant's sixth argument is thatthe trial court improperly denied his request for acontinuance to allow him time to secure theattendance of an allegedly critical witness . Beforethe trial began, the appellant requested acontinuance to locate Gerard Burdette, who hadbeen riding in the victim 's vehicle at the time of themurder . Shortly after the murder , Burdette hadmade a statement about the crime to the police.Based on that statement , the appellant contendedthat Burdette 's testimony could exonerate him.[FN4] *940 The prosecution conceded thatBurdette's testimony was material , but it agreed tostipulate that Burdette 's written statement could beadmitted into evidence . The trial court denied theappellant's request for a continuance , and Burdette'sstatement was read and admitted into evidenceduring the appellant's case-in-chief.
FN4. The appellant also argues thatBurdette 's statement supported his theorythat the motive for the killing wasretaliation for a bad drug deal and that thekilling did not occur during a robbery.However, we have reviewed Burdette'sstatement, and it does not refer to a baddrug deal . Therefore, this contention isrefuted by the record and is without merit.
"A motion for a continuance is addressed to thediscretion of the court and the court's ruling on itwill not be disturbed unless there is an abuse ofdiscretion .. If the following principles aresatisfied , a trial court should grant a motion forcontinuance on the ground that a witness orevidence is absent: ( 1) the expected evidencemust be material and competent : (2) there mustbe a probability that the evidence will beforthcoming if the case is continued ; and (3) themoving party must have exercised due diligenceto secure the evidence."
Ex parse Saranthus . 501 So 2d 1256, 1257(Ala.1986) (citations omitted). At the hearing onthe motion , both the prosecutor and defense counselstated that they had attempted to locate Burdetteand that their efforts had not been successful. They
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also noted that both state and federal authorities hadoutstanding warrants for Burdette's arrest, thatBurdette's mother stated that she did not knowwhere he was, and that there had been someindication that Burdette was no longer in theMontgomery area . In its written order denying theappellant's motion, the trial court stated:
"In an attempt to accommodate all parties tosecure the appearance of Burdette, on February
20, 1998 , investigators of the District Attorney's
office and a Deputy District Attorney went to thehome of Burdette 's mother to inquire of hiswhereabouts . According to the report receivedfrom these investigators and the Deputy District
Attorney, the mother informed ..them that she hadnot seen her son in a year and it was reported thathe was not in Montgomery . Because there doesnot appear to be any reasonable likelihood thatBurdette's appearance could be secured in thereasonable foreseeable future, the motion forcontinuance is denied."The Court notes that the State stipulates that thestatement of Burdette which was taken by
Corporal Cunningham can be used as evidence inthe Defendant's behalf."
(C.R.100.) At the close of the State's
case-in-chief, when the appellant moved for ajudgment of acquittal on the ground that Burdettewas not available as a witness , the trial courtreiterated:
"As for Mr. Burdette , I have issued an order fromcompetent counsel on why I did not postpone thetrial of this case because Mr . Burdette could notbe found . But just for the • record again , based oneverything that has been reported to the Court,Mr. Burdette has charges pending against him,Class A felony charges, I believe , for robbery inthe first degree and he has apparently flown thejurisdiction of this Court. And there is no wayanybody could tell when Mr . Burdette would everbe [available .] So that is the basis of that. Notanything that counsel did or didn't do. But he isjust gone , and nobody knows when he is going tobe apprehended and brought back."
(R. 30-31.)"While we assume for present purposes that thefirst and third parts of *941 the Saranthus testwere met here, we conclude that the trial courtdid not abuse its discretion in denying thecontinuance based upon Reese's failure to satisfythe second Saranthus requirement . There wasabsolutely no showing that, if a continuance weregranted, either Ms. Taylor or Mr. Smith could be
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located. In fact, all indications pointed to thecontrary. Since even the State's efforts to findMr. Smith had proved futile, and Reese'sthree-month attempt to locate Ms. Taylor hadbeen fruitless, the trial court could rightlyconclude there was no 'probability' that thesewitnesses would be forthcoming if the case werecontinued. 'A motion for a continuance in acriminal case is addressed to the sound discretionof the trial court, the exercise of which will not bedisturbed unless clearly abused.' Fletcher v. State,
291 Ala. 67, 68, 277 So.2d 882, 883 (1973);Butler v. State, 285 Ala. 387, 393, 232 So.2d631, 635 (1970), cert. dismissed, 406 U.S. 939,92 S.Ct. 1807, 32 L.Ed.2d 140 (1972) ('unless agross abuse of the court's prerogative is shown')."
Reeve v. State, 549 So.2d 148, 151(Ala.Cr.App. 1989), overruled on other grounds,Huntk'v v. State. 627 So.2d 1013 (Ala.1992). Seealso Banks v. State, 647 So.2d 46(Ala.Cr.App.1994); Miller v. State, 602 So.2d 488(Ala.Cr.App. 1992).
Similarly, the appellant has not satisfied the secondprong of the Saranthus test. He did not present anyevidence that, even if the trial court granted acontinuance , Burdette could be located and wouldtestify. Banks, supra. In fact. both the prosecutionand the defense had attempted to secure Burdette'sattendance at trial, but neither had been successful.Miller, supra. Moreover, Burdette's statement wasadmitted into evidence by a stipulation of theprosecution and defense counsel. Therefore, thetrial court did not abuse its discretion in denying theappellant's motion for a continuance.
VII.
[33](34] The appellant's seventh argument is thatthe trial judge improperly left the courtroom whilethe jurors viewed his videotaped statement. He alsocontends that, after the jury viewed the videotapeand just before court adjourned for the day, the trialcourt improperly allowed the court reporter toadmonish the jurors to avoid exposure to mediacoverage of the trial, not to discuss the case, and tobe back at 9:30 the next morning. Because theappellant did not present these claims to the trialcourt, we review them for plain error. Rule 45A,Ala. R.App. P.
[35] During the testimony of Officer Signore, afterthe State had played part of the appellant's
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videotaped statement , the trial judge stated:"Ladies and gentlemen , I want to stop for asecond. I have seen that video . I don't need to seeit. It's important for you to see it. It's notimportant for my purposes to see it . I do want acopy of the statement , though . I don't have that.I want to read it again . I have got some otherthings to do. We are going to continue playingthis for y'all.. I have got some other matters totake care of. It's important for y'all to judge Mr.Jackson 's credibility in this video . Y'all makecredibility choices . It's important for y'all toobserve how this investigation was conducted.Another thing you're going to have to do injudging the credibility of whaCs said in it is tojudge whether or not it was coerced in anymanner . So I have already made an initial rulingabout that which allows y'all to see it now. But,for my purposes , it is not for me to sit here anymore . The fact that I am going to be *942 doingsomething else doesn 't mean that it is notimportant to y'all and not very important to thistrial."
(R. 524.) The appellant did not object when thejudge left the courtroom . After the videotape wasplayed, the court reporter stated:
"I have been asked by Judge Gordon to advise thejury not to read the newspapers , not to watchtelevision and not to discuss the case amongyourselves or with anyone else and be back at9:30 a . m. Thursday morning."
(R. 525 .) Again , the appellant did not object whenthe court reporter admonished the jury. At . thatpoint , court was adjourned for the day.
"[T]he rule that it is the duty of the presidingjudge to be visibly present during every momentin the trial of the case, so that he can always seeand hear all that is being said and done, does notmandate a reversal in every instance of hisabsence . Although in Thomas v. State , 150 Ala.31, 43 So. 371 (1907), the defendant made noobjection to the judge 's absence, the followingcomments are instructive in the present situation:" '(W)e are of the opinion that the mere absenceof the judge during the progress of the trial, whenno objection or point was made at the trial, theabsence being only for a few moments ... does notrequire or authorize a reversal of the judgment ofconviction . Especially so when it does notappear that the defendant suffered anv harm ordetriment on account of the judge's temporaryabsence.' Thomas , 150 Ala. at 48 [43 So. 3711(emphasis added).
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"In Melvin v. State, 32 Ala.App. 10, 21 So.2d 277(1944), it was noted:" 'In 23 C.J.S., Criminal Law, Section 972, p.300, after asserting that the general rule requiresthe continued presence of the presiding judgeduring the entire proceedings of the trial, the textobserves further "Nor, in some jurisdictions, ishis absence from the room. reversible error, wherehe remains in a position to observe and hear theproceedings and to pass upon any questionswhich may arise therein, or where he is at alltimes within immediate call." (Emphasis ours.)'Melvin. 32 Ala.App. at 16,21 So.2d 277."Finding that the trial judge had only left thebench and not the courtroom, the appellate courtstressed the importance of the trial judgeremaining visible in the courtroom at all timesduring the proceedings: 'Great care and cautionshould be observed by the trial judge to avoideven the slightest doubt of his accessibility.'Melvin, 32 Ala.App. at 16,21 So.2d 277."In Ex parte Ellis, 42 Ala.App. 236. 159 So.2d862 (1964), the court found that an affidavit insupport of a motion for new trial which assertedthat the trial judge left the bench and thecourtroom for a period of 15 or 20 minutes duringthe course of the trial proceedings did notestablish that the trial was 'lacking in fundamentalfairness.'" 'From aught that appears in such affidavit, thetrial judge did not remove himself to a pointwhere he abandoned supervision of petitioner'sCircuit Court trial or any part thereof. Saidaffidavit failed to state that said trial judge did notremain in proximity sufficiently close to hear, seeand supervise the entire proceedings.
'Everything is to be presumed in favor of theregularity of the proceedings of a court of justice.'Ellis, 42 Ala.App. at 239, 159 So.2d 862."Here, even though defense counsel had no dutyto make objection to any offensive *943 orobjectionable argument of the prosecutor in theabsence of the presiding judge from thecourtroom and could have presented objection inhis motion for new trial, Woods v. State, 19Ala.App. 299, 301, 97 So. 179 (1923), there hasbeen no contention that there was any prejudicialremark made by the prosecutor during the trialjudge's absence."In his brief, the defendant argues that 'it isimpossible to know what prejudice he suffered infact.' However, we cannot find that the defendantwas harmed in any degree by the absence of the
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trial judge where there was no allegation madeduring the course of the proceedings below thathe was prejudiced . From the record it does notappear that 'the error complained of has probablyinjuriously affected substantial rights of theparties .' A.R.A.P. Rule 45. Indeed, as in Er PorteEllis, there has not even been a showing that thetrial judge 'did not remain in proximitysufficiently close to hear, see and supervise theentire proceedings .' Ellis. 42 Ala.App. at 239,159 So.2d 862. For these , reasons, we concludethat under the facts of this particular case the trialjudge 's absence does not require a reversal of thedefendant 's conviction."
Harris v. State , 409 So.2d,. 1006, 1008-09(Ala.Cr.App. 1982) (footnote omitted).
In this case , the trial judge was not absent duringthe arguments of counsel , examination of witnesses,or the handing down of the verdict . Rather, he wasabsent during the playing of a portion of avideotape and when court adjourned for the day.Before , he left, the judge stated that he hadpreviously viewed the videotape , and he thoroughlyinstructed the jurors about the importance of thevideotape and their role in reviewing it. Finally,
court adjourned for the day immediately after thevideotape was played , and the court reporter madethe same comments to the jurors that the judge hadmade when court had previously adjourned for theday. This action certainly did not amount to a"complete abdication of judicial control" over thetrial by the judge , as the appellant contends. Theappellant has not alleged or shown that he wasprejudiced by the judge's absence from thecourtroom . In fact, he has not alleged that any erroroccurred during the judge 's absence . Thus, underthe facts of this case , we do not find that the judge'sactions rose to the level of plain error . At most, hisactions may have constituted harmless error. Rule45, Ala. R.App. P. [FN5]
FN5. In so holding , we do not wish to beconstrued as condoning the judge'sconduct in leaving the courtroom . Rather,we admonish trial judges to remain in thecourtroom throughout the entire course ofa trial.
VIII.
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The appellant's eighth argument is that the Stateimproperly obtained , his conviction byuncorroborated accomplice testimony. Becausethey had all been indicted for the same capitaloffense , the appellant argues that Barnes, Rudolph,and Williams were accomplices to the offense andthat, therefore , their testimony should have beencorroborated.
A.
(36][37][38][39][40][41][42] The appellant firstcontends that the State did not present sufficientevidence to corroborate the testimony of hisaccomplices concerning the robbery element of thecapital offense . At the close of the State'scase- in-chief, the appellant moved for a judgment ofacquittal, specifically arguing that the State had notpresented sufficient evidence to corroborate thetestimony of his accomplices . In denying*944 theappellant's motion , the trial court stated:
"The Court finds that there is sufficient evidenceof corroboration in this case for the matter to goto the jury on not only the defendant 's statement,but the physical evidence with regard to theweapon and also the bullet itself was recovered inconnection with the defendant 's oral statement toDetective Signore that he did have a . 380 caliberweapon in his possession . Although there istestimony in this case of a .380 that was foundafter the car was driven off by the other twocodefendants --or two of the other codefendants."
(R. 29-30.)"A conviction of felony cannot be had on thetestimony of an accomplice unless corroboratedby other evidence tending . to connect thedefendant with the commission of the offense,and such corroborative evidence, if it merelyshows the commission of the offense or thecircumstances thereof, is not sufficient."12-21-222, Ala.Code 1975." ' "Corroboration need only be slight to suffice."Ingle v. State. 400 So.2d 938, 940(Ala.Cr.App. 198 1). "While corroboratingevidence need not be strong, it '... must be ofsubstantive character , must be inconsistent withthe innocence of a defendant and must do morethan raise a suspicion of guilt.' McCoy v. State,397 So.2d 577 (Ala.Crim.App.), cert. denied, 397So.2d 589 (Ala.1981)." Booker v. State, 477So.2d 1388, 1390 (Ala.Cr.App.1985). "However,the corroboration need not be sufficiently strongby itself to warrant a conviction ." Miles v. State,
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476 So.2d 1228, 1234 (Ala.Cr.App.1985). Therequisite corroborative evidence is determined bya process of elimination or subtraction. Caldwell
v. State. 418 So.2d 168, 170 (Ala.Cr.App.1981)."The means for analyzing the evidence todetermine if there is sufficient evidence tocorroborate testimony of an accomplice is to set
aside the accomplice's testimony and determine
whether or not the remaining evidence tends toconnect the defendant with the commission of theoffense." Leonard v. State, 459 So.2d 970, 971(Ala.Cr.App.1984). "Whether such corroborativeevidence exists is a question of law to be resolvedby the trial court, its probative force andsufficiency being questions., for the jury."Caldwell v. State, supra, at 170. Circumstantialevidence is sufficient to show corroboration.Jackson v. State, 451 So.2d 435, 437(Ala.Cr.App. 1984). See also McConnell v. State,
429 So.2d 662 (Ala.Cr.App.1983):"Hodges v. State, 500 So.2d at 1275-76."
Arthur v. State. 711 So.2d 1031, 1059(Ala.Cr.App.1996), cert, denied, 711 So.2d 1097(Ala.1997). "A combination of facts may besufficient to corroborate the testimony of anaccomplice even though each single fact, standing
by itself, is insufficient." Wilson v. State, 690 So.2d449, 456 (Ala.Cr.App.1995), affd in part, 690So.2d 477 (Ala.1997).
" 'Corroborative evidence need not directlyconfirm any particular fact nor go to everymaterial fact stated by the accomplice.' Andrews
v. State, 370 So.2d 320, 322 (Ala.Cr.App.), cert.denied, 370 So.2d 323 (Ala.1979). In this case,as in Perry v. Slate, 853 P.2d 198, 200(Okla.Crim.[App.]1993), the '[a]ppellant himselfcorroborated (the accomplice's] testimony whenhe testified at trial and admitted that he shot thevictim in self-defense.' See also Hood v. State,598 So.2d 1022, 1024 (Ala.Cr.App.1991)(accused's own statement to the policecorroborated accomplices).*945 "In Hood v. State. supra, this Courtobserved:" 'The appellant ... insists that because the "forhire" element of the capital offense was notindependently corroborated, the State did notestablish a prima facie case of capital murder.That is not the law in Alabama." 'As early as 1867, our Supreme Court held thata charge requiring corroboration of "everymaterial part" of an accomplice's testimony "wentbeyond the requirements of the statutory rule, or
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any rule recognized by the common law."Montgomet3v v. State, 40 Ala. 684, 688 (1867).More recently, in Lx parte Bell, 475 So.2d 609,613 (Ala.), cert. denied, 474 U.S. 1038, 106 S.Ct.607, 88 L.Ed.2d 585 (1985), a capital case, thecourt held that Ala.Code 1975, § 12-21-222,"does not require corroborative testimony as tomaterial elements of the crime; it only requiresother evidence 'tending to connect the defendantwith the commission of the offense.' " See alsoAndrews v. State, 370 So.2d 320 (Ala.Cr.App.),cert. denied, 370 So.2d 323 (AIa.1979), whereinthis court observed:" ' "The corroboration of an accomplice must tendto connect the accused with the commission ofthe crime but need not refer to any statement orfact testified to by the accomplice. 'Corroboratemeans to strengthen, to make stronger; tostrengthen , not the proof of any particular fact towhich the witness has testified, but to strengthenthe probative, criminating force of his testimony.'... Corroborative evidence need not directlyconfirm any particular fact nor go to everymaterial fact stated by the accomplice.""Hood v. State, 598 So.2d at 1024-25."
Gurlev v. State, 639 So.2d 557, 561-62(Ala_Cr.App.1993 ).
(43] Thus, even assuming the codefendants wereaccomplices, the State was not required to presentcorroborative evidence as to each element of thecapital offense or as to each fact ,about which. theaccomplices testified, Rather, it was simply requiredto present other evidence that tended to connect theappellant to the commission of the offense. Weconclude that the State presented sufficientevidence to corroborate the testimony of theappellant's accomplices. In addition to theappellant's conduct and statements to lawenforcement officials, the State also introduced thetestimony of two eyewitnesses to the offense; thestatement of Gerard Burdette; physical evidencerecovered from the crime scene and from thevehicles involved in the offense; the spent .380MagTech shell casing recovered from the crimescene; the bullet recovered from the victim's heart;expert testimony that the bullet was consistent withhaving been fired from a .380 pistol; the box of.380 MagTech ammunition recovered from theappellant's bedroom; expert testimony that thebullet was consistent with having been fired fromthe spent shell casing; testimony that LottieFlowers' vehicle had been stolen and was later
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recovered with a broken steering column, a dent onthe side, and a broken window; the Dairy Queencup recovered from Flowers' vehicle; testimonythat the victim's vehicle was recovered fromPorterfield's farm off of Old Hayneville Road;Porterfield's testimony that three young black menwere walking around the victim's vehicle themorning after the murder, and the stereo from thevictim's vehicle, which was recovered fromWilliams' girlfriend's residence. Taken as a whole,this evidence was sufficient to corroborate thetestimony of the appellant's *946 accomplices.Therefore, the appellant 's claim is without merit.
B.
[44][45] The appellant further contends that thetrial court erred because it did not instruct the jurythat accomplice testimony must be corroborated byother evidence. However, he did not request suchan instruction , and he did not object when the trialcourt did not give one. Thus, we review this claimfor plain error. Rule 45A, Ala. R.App. P.
We have previously applied a harnless erroranalysis to such a claim . Arthur, supra.
" 'The court should have instructed the juryconcerning the need for corroborative evidence ofMcCants's testimony. However, the failure to doso does not mean that this cause mustautomatically be reversed. Automatic reversalexists only when the error "necessarily renders atrial fundamentally unfair." Rose v. Clark. 478U.S. 570, [577], 106 S.Ct. 3101, 3106, 92L.Ed.2d 460 (1986). Alabama has applied theharmless error analysis in a case involving thedeath penalty to the failure of the court to instructthe jury on the principle of accomplicecorroboration. Gurley v. State, 639 So.2d 557(Ala.Cr.App.1993); Frazier v. State; 562 So.2d543, 558 (Ala.Cr.App.), rev'd on other grounds,562 So.2d 560 (Ala.1989)."'As Judge Bowen stated in Gurley:" ' "[T]he error of failing to instruct the jury onthe need for corroborative evidence is harmlesswhen the testimony of an accomplice has in factbeen corroborated. Frazier v. State, 562 So.2d543, 558 (Ala.Cr.App.), reversed on othergrounds, 562 So.2d 560 (Ala.1989). AccordPeople v. Brunner, 797 P.2d 788, 790(Colo.App.1990); State v. Brown [187 Conn.602], 447 A.2d 734, 740 (Conn.l982); Ali v.United States, 581 A.2d 368, 377-78
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(D.C.App. 1990), cert. denied , 502 U.S. 893, 112S.Ct. 259 [116 L.Ed.2d•213] (1991); Strong v.State [261 Md. 371], 275 A.2d 491, 495(Md.1971), vacated on other grounds , 408 U.S.939 [92 S.Ct. 2872, 33 L.Ed.2d 760] (1972);State v. England, 409 N.W.2d 262, 265(Minn .App. 1987)." ' "
Arthur. 711 So.2d at 1059 ( quoting Burton v. State,651 So.2d 641, 653- 54 (Ala.Cr.App.1993), affd,651 So.2d 659 (Ala.1994), cert. denied, 514 U.S.1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995)).Similarly , because the State presented sufficientevidence to corroborate the testimony of theappellant's accomplices , we conclude that the factthat the trial court did not instruct the jury on thenecessity of corroborating accomplice testimony didnot rise to the level of plain error and was, at most,harmless error. See Rule 45, Ala. R.App. P.
IX.
[46][47] The appellant's ninth argument is the Stateimproperly used its peremptory challenges todiscriminate on the basis of race and gender. Hecontends that he showed that there was a primafacie case of discrimination in violation of Batson v.Kentucky. 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d69 (1986), and J.E.B. v. Alabama, 511 U.S. 127,114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), during histrial, and that the trial court should have requiredthe prosecution to provide race- and gender-neutralreasons for its strikes. For these reasons, he urgesthis court to remand this case to the trial court "for ahearing to determine whether . the . Statediscriminated on the basis of gender and race in itsuse of peremptory strikes." (Appellant's brief at p.47.)
*947 After the jury was struck but before it wassworn, the following occurred:
"[Defense counsel]: Judge, at this point wewould move under Batson and its progeny for theState to explain race-neutral reasons why it struckNumbers 116, 94, 96, 11, 26, and 165, whichwere the last set of jurors it struck before turningto Your Honor with the random system. Six ofthose seven are black. Eight of their total strikeswere black."The Court: That's not enough to establish aprima facie case.... What's your prima facie case'?"[Defense counsel]: I don't believe they haverace-neutral reasons for doing that Judge. I mean,six out of seven in a row.
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"The Court: That's not enough."(R. 156.) Thus, the appellant preserved forappellate review his claim of discrimination basedon race . However, he did not present his claimregarding discrimination on the basis of gender tothe trial court . Therefore, we review that claimunder the plain error rule. Rule 45A, Ala. R.App. P.
At the outset, we note that the record on appealdoes not include any documents that show the raceor gender of the prospective jurors in this case.Furthermore, it does not include copies of thequestionnaires completed by the jurors before voirdire examination.
"[T]he record does not contain the clerk's officejury list of any relevant information about thejurors. 'It is the appellant's duty to provide thiscourt with a complete record on appeal.' Knight
v. State, 621 So.2d 394 (Ala.Cr.App.1993). Seealso Holder v. State, 584 So.2d 872(Ala.Cr.App.1991). We cannot predicate erroron a silent record. Hutchins v. State. 568 So.2d395 (Ala.Cr.App.1990)."
Roberts v. State, 627 So.2d 1114, 1116(Ala.Cr.App.1993). See also Baker v. State. 683So.2d 1 (Ala.Cr.App.1995). Thus,
"[t]here is no evidence in the record that theprosecutor used his strikes in a raciallydiscriminatory manner. There is no indication ofthe racial composition of the jury, though a jurystrike list is contained in the record. Neither dowe know whether any minorities in fact served onthe jury. The record simply does not support aninference of plain error on the alleged Batsonviolation. Our Supreme Court in Ex parseWatkins, 509 So.2d 1074 (Ala.1987), cert,denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d226 (1987), refused to find plain error in a similarsituation. It stated:" 'The record as a whole simply does not raise aninference that the state engaged in the practice ofpurposeful discrimination. Under the plain errorrule this Court will "notice any plain error ordefect in the proceeding under review, whether ornot brought to the attention of the trial court, andtake appropriate appellate action by reasonthereof, whenever such error has or probably hasadversely affected the substantial rights of thepetitioner." ... The defendant cannot successfullyargue that error is plain in the record when thereis no indication in the record that the act uponwhich error is predicated ever occurred ( i.e., thestate's use of its peremptory challenges to exclude
Page 28
blacks).'"509 So .2d at 1076-77. See Kuen;el v. State, 577So.2d 474 (Ala.Cr.App.1990), affd, 577 So.2d531 (Ala. 199 l ), cert . denied, [502] U.S. [886],112 S.Ct. 242, 116 L.Ed.2d 197 ( 1991) (statingthat there was no evidence in the record tosupport the contention that the State of Alabamaused its peremptory strikes to exclude blacksfrom the jury). 'Under the circumstances of thiscase , we cannot conclude *948 that a prima faciecase of purposeful discrimination has beenestablished .' Pierce, 576 Sold at 242."
Jenkins v. State. 627 So.2d 1034, 1042(Ala.Cr.App.1992), affd, 627 So.2d 1054(Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct.1388, 128 L.Ed.2d 63 (1994). See also Freeman v.State, 555 So.2d 196 (Ala.Cr.App.1988), affd, 555So.2d 215 (Ala.1989 ), cert. denied, 496 U.S. 912,110 S.Ct. 2604, 110 L.Ed.2d 284 (1990).
Likewise, the record before us does not raise aninference of discrimination based on either race orgender. Nevertheless, the appellant urges us toremand this case so the prosecution can providereasons for its use of its peremptory challenges.
"As this Court stated in FEY- parse Watkins, 509So.2d 1074, 1077 (Ala.1987), cert. denied,Watkins v. Alabama, 484 U.S. 918, 108 S.Ct.269, 98 L.Ed.2d 226 (1987), '[t]he defendantcannot successfully argue that error is plain in therecord when there is no indication in the recordthat the act upon which error is predicated everoccurred.' In effect, McNair is requesting that weremand this case for a hearing on this issue, onthe strength of the circuit clerk's affidavit, so thata record can be created for appellate review. Wespecifically decline this request, for to dootherwise would unduly enlarge the scope of theplain error review as authorized by our appellaterules. See Watkins, supra, in which we had theopportunity in adeath penalty case to remand foran evidentiary hearing on a Batson issue, butrefused to do so."
Ex parte McNair. 653 So.2d 353, 360-(Ala.1994),cert. denied, '513 U.S. 1159, 115 S.Ct. 1121, 130L.Ed.2d 1084 (1995). We, too, decline theappellant's request. Because the record before thiscourt does not raise any inference of discrimination,we do not find any reversible error in this regard.
X.
[48][49) The appellant's tenth argument is that the
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trial court's instruction on reasonable doubt violatedthe principles of Cage v. Louisiana, 498 U.S. 39,111 S.Ct. 328, 112 L.Ed.2d 339 (1990). The trialcourt instructed the jury on reasonable doubt asfollows:
"I have told you that the State has to prove thiscase beyond a reasonable doubt from theevidence. So let's talk for a moment about what areasonable doubt is. Simply put, ladies andgentlemen, a reasonable doubt is a doubt forwhich you can give a reason. It may arise fromall the evidence. It may arise from any part of theevidence. It may arise from lack of evidence inany case after a careful and impartialconsideration of all of the case.,That is what youhave got to look at is look at the evidence--all theevidence that is presented to you in this case todetermine whether or not the State has proven thedefendant guilty beyond a reasonable doubt. Youdon't find a person guilty of a criminal chargebased on conjecture or suspicion or surmise. Onthe other hand though, you don't find a person notguilty because of some vague or conjectural orfanciful doubt. Now the State's burden is toprove the defendant guilty beyond a reasonabledoubt. But the State does not have to prove himguilty beyond all doubt or beyond a shadow of adoubt or to a mathematical certainty. But theState has to satisfy its burden by proving his guiltbeyond a reasonable doubt from the evidence inthis case."I would simply say to you that proof beyond areasonable doubt is proof of such a convincingcharacter that you will be willing to rely and actupon it without hesitation in the most importantof your *949 own affairs. So if you areconvinced by the evidence that the defendant hasbeen -proven guilty of an offense beyond areasonable doubt, then you must find him guilty.On the other hand, if you are not convinced bythe evidence that he has been proven guiltybeyond a reasonable doubt, then you must findhim not guilty as you look at the charges in thiscase.
(R. 83-85). The appellant specifically contendsthat the instruction improperly lowered the State'sburden of proof. He did not present this issue to thetrial court. Therefore, we review it for plain error.Rule 45A, Ala. R.App. P.
In Knotts v. State. 686 So.2d 431 (Ala.Cr.App.),opinion after remand , 686 So.2d 484(Ala.Cr.App.1995), aft'd, 686 So-2d 486 (Ala.1996)
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, cert. denied, 520 U.S. 1199, 117 S.Ct. 1559, 137L.Ed.2d 706 (1997), we held:
"The Due Process Clause of the FourteenthAmendment 'protects the accused againstconviction except upon proof beyond areasonable doubt of every fact necessary toconstitute the crime with which he is charged.' Inre Winship, 397 U.S. 358, 364, 90 S.Ct. 1068,1073, 25 L. Ed.2d 368 (1970). In Cage v.Louisiana , the United States Supreme Courtfound that a jury charge that defined 'reasonabledoubt' by using the phrases 'grave uncertainty,''actual substantial doubt,' and 'moral certainty'could have led a reasonable juror to interpret theinstructions to allow a finding of guilt based on adegree of proof below that required by the DueProcess Clause . Subsequently , the Court 'made itclear that the proper inquiry is not whether theinstruction "could have" been applied in anunconstitutional manner , but whether there is areasonable likelihood that the jury did so apply it.'Victor v. Nebraska. 511 U.S. 1, 6, 114 S.Ct.1239, 1243, 127 L.Ed.2d 583 (1994) (quotingEstelle v. McGuire, 502 U.S. 62, 72-73, and n. 4,112 S.Ct. 475, 482 and n. 4, 116 L.Ed.2d 385(1991), emphasis in original). Thus, theconstitutional question presented here is whetherthere is a reasonable likelihood that the juryunderstood the instructions to allow theconviction based on proof insufficient to meet theWinship reasonable doubt standard . Victor v.Nebraska; Ex parte Kirby, 643 So.2d 587 (Ala.),cert. denied, [513] U.S. [1023], 115 S.Ct. 591,130 L.Ed.2d 504 (1994); Cox v. State. 660 So.2d233 (Ala.Cr.App.1994)."In reviewing the reasonable doubt instruction,we do so in the context of the charge as a whole.Victor v. Nebraska: Baker v. United States, 412F.2d 1069 (5th Cir. 1969), cert. denied, 396 U.S.1018, 90 S .Ct. 583, 24 L.Ed.2d 509 (1970);Williams V. State, 538 So.2d 1250(AIa.Cr.App.1988). So long as the definition of'reasonable doubt' in the charge correctly conveysthe concept of reasonable doubt, the charge willnot be considered so prejudicial as to mandatereversal . Victor v. Nebraska; Holland v. UnitedStates, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150(1954).11
686 So.2d at 459. " 'Use of some but not all of theterminology found offensive in Cage does notautomatically constitute reversible error .' " Taylor v.State, 666 So.2d 36, 56 (Ala.Cr.App.1994), afffd,666 So .2d 73 (Ala.1995), cert. denied, 516 U.S.
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1120, 116 S .Ct. 928 , 133 L.Ed .2d 856 (1996)(citations omitted). Finally , we have previouslyheld that the statement that a reasonable doubt is adoubt for which a reason can be given does notviolate Cage and does not improperly lessen theState 's burden of proof. Burgess v. State, 827 So.2d134 (Ala.Cr.App.1998); Ex parte McWilliams. 640So.2d 1015 (Ala.1993), affd, 666 So.2d 90(Ala.1995 ), cert. denied , *950516 U . S. 1053, 116S.Ct. 723. 133 L.Ed.2d 675 (1996); McMillian v.State, 594 So .2d 1253, 1283 (Ala.Cr.App.1991).
Taken as a whole , the trial court's instruction in thiscase properly conveyed the concept of reasonabledoubt to the jury, and it did not lessen the State'sburden of proof. There is no reasonable likelihoodthat the jury applied the instruction in a manner thatwould violate the appellant's constitutional rights.Therefore , we do not find any plain error in thisregard.
Xl.
[50][51][52] The appellant's eleventh argument isthat the trial court improperly admitted photographsand videotapes that allegedly served only to inflameand prejudice the jury. Specifically, he contendsthat the introduction of one picture of the victimafter he was killed seriously prejudiced him. Withregard to the remaining photographs andvideotapes, he makes only generalizations withoutspecifying which ones he finds objectionable.Because the appellant did not object to theadmission of the photographs and the videotapes attrial, we must determine whether the admission ofthese items constituted plain error . Rule 45A, Ala.R.App. P.
[53][54][55][56][57][58] When reviewing thesephotographs and videotapes, we are guided by thefollowing principles:
" 'Photographic evidence is admissible in acriminal prosecution if it tends to prove ordisprove some disputed or material issue, toillustrate some relevant fact or evidence, or tocorroborate or dispute other evidence in the case.Photographs that tend to shed light on, tostrengthen, or to illustrate other testimonypresented may be admitted into evidence....Finally photographic evidence, if relevant, isadmissible even if it has a tendency to inflame theminds of the jurors.' "
Gaddy v. State, 698 So .2d 1100, 1148
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(Ala.Cr.App.1995), affd. 698 So.2d 1150 (Ala.),cert. denied, 522 U.S. 1032, 118 S.Ct. 634, 139L.Ed.2d 613 (1997) (quoting Ex parte Siebert. 555So.2d 780, 783-84 (Ala.1989), cert. denied, 497U.S. 1032, 110 S.Ct. 3297. 111 L.Ed.2d 806 (1990))•
" '[P]hotographs depicting the character andlocation of wounds on a deceased 's body areadmissible even though they are cumulative andare based on undisputed matters. Magwood [v.State], 494 So.2d [124, 141 (Ala.Cr.App. 1985),affirmed , 494 So.2d 154 (Ala.), cert. denied, 479U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986)]. The fact that a photograph is gruesome is notgrounds to exclude it as long as the photographsheds light on issues being tried. Id. Also, aphotograph may be gruesome and ghastly, butthis is not a reason to exclude it as long as thephotograph is relevant to the proceedings , even ifit tends to inflame the jury. ld.'"Ex parse Bankhead 585 So.2d 112 (Ala.1991).Accord, Ex parse Siebert. 555 S6.2d 780, 783-84(Ala.1989), cert. denied, [497] U.S. [1032], I10S.Ct. 3297, 111 L.Ed.2d 806 (1990); McElroy'sat § 207.01(2)."
Parker v. State, 587 So.2d 1072, 1092-93(Ala.Cr.App.1991 ), opinion extended after remand,610 So.2d 1171 (Ala.Cr.App.), atYd, 610 So.2d1181 (Ala.1992), cert. denied, 509 U.S. 929, 113S.Ct. 3053, 125 L.Ed.2d 737 (1993). Photographsthat depict the crime scene are relevant andtherefore admissible . Aaltrnan v. State, 621 So.2d353 (Ala.Cr.App. 1992), cert . denied, 510 U.S. 954,114 S.Ct. 407, 126 L.Ed.2d 354 (1993); Ex parteSiebert, 555 So.2d 780, 783-84 (Ala.1989), cert.denied, 497 U.S. 1032, 110 S.Ct. 3297, 111L.Ed.2d 806 (1990): Hill v. State, 516 So.2d 876(Ala.Cr.App.1987)_ Finally,
*951 " ' "photographic evidence , if relevant, isadmissible even if it has a tendency to inflame theminds of the jurors ." Ex parte Siebert, 555 So.2d780, 784 (Ala.1989), cert, denied, 497 U.S. 1032,1 1 0 S.Ct. 3297, 1 1 1 L.Ed.2d 806 ( 1990). Seegenerally C . Gamble, McElroy's AlabamaEvidence, § 207.01(2) (4th ed.1991). "Thephotographs of the victim were properly admittedinto evidence . Photographic exhibits areadmissible even though they may be cumulative,... demonstrative of undisputed facts, ... orgruesome ...." Williams v. State, 506 So.2d 368,371 (Ala.Cr.App.1986), cert. denied, 506 So.2d372 (Ala. 1987).'"DeBruce v. State, 651 So.2d 599, 607
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(Ala.Cr.App.1993). See also Er parte Bank-head,585 So.2d 112 (Ala.1991). The court did not errin allowing photographs of the victim's body tobe received into evidence."
Hutcherson v. State. 677 So.2d 1174, 1200(Ala.Cr.App.1994), rev'd on other grounds, 677So.2d 1205 (Ala.1996). See also Giles v. State. 632So.2d 568 (Ala.Cr.App.1992), affd, 632 So.2d 577(Ala.1993), cert. denied, 512 U.S. 1213, 114 S.CL2694, 129 L.Ed.2d 825 (1994); Hanev v. State, 603So.2d 368 (Ala.Cr.App.1991), at?d, 603 So.2d 412(Ala.1992), cert, denied, 507 U.S. 925, 113 S.Ct.1297, 122 L.Ed.2d 687 (1993).
In this case, the photographs of the victim depictthe character and location of his wounds.Nevertheless, these photographs are neitherunnecessarily gruesome not gory. We have alsoreviewed the remaining photographs andvideotapes, and we do not find that they wereunduly prejudicial to the appellant. Thosephotographs and videotapes were relevant andadmissible because they depict the crime scene, thevehicles driven by the victim and the appellant, andthe evidence recovered during the investigation ofthe crime. The appellant has not shown that theadmission of any of the photographs or videotapesaffected or probably affected his substantial rights.Accordingly, the trial court's admission of thephotographs and videotapes did not constitute plainerror.
X"II.
[59][60] The appellant's twelfth argument is thatthe trial court improperly granted the State'schallenges for cause as to prospective jurors whoexpressed objections to the imposition of the deathpenalty. After the voir dire examination, thefollowing occurred:
"The Court: Exceptions for cause?"[Prosecutor]: Yes, sir. State would challengejuror [L.A.], Juror [A.A.], Juror [V.C.], Juror[M.E.], Juror [V.G.]""The Court: Anything in response to that?Before y'all respond, let me tell you what myinclination is. My inclination is to grant thosechallenges except for [A.A.] Each of those jurorsin my judgment said on the record that there areno circumstances under which they could vote toimpose the death penalty, except for [A.A.] Well,I take it back. I'm sorry. [A.A.] said she didn'tknow if she could vote or not.
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"[Prosecutor]: That's why I challenged her."The Court: I confused '[A.A.] for [B.B.] I thinktheir challenges are due to be granted. That's myinitial reaction. If y'all have anything you wouldlike to say about it, I will hear you. Anythingy'all have in opposition to any of those?"[Defense counsel]: We don't have any."
(R. 126-27.) Because the appellant did not presenthis claim about the challenges for *952 cause to thetrial court, we review it for plain error. Rule 45A,Ala. R.App. P.
During general voir dire examination, prospectivejurors L.A., A.A., V.C., M.E., and V.G. indicatedthat they had reservations about imposing the deathpenalty. Further individual examination by the trialcourt revealed that the prospective jurors eithercould not vote on the imposition of punishment orwould not vote to impose the death penalty underany circumstances. Prospective juror L.A. indicatedthat he did not personally condone the death penaltyand that he could not impose the death penaltyunder any circumstances. (R. 82.) Prospectivejuror A.A. expressed ambivalent feelings about thedeath penalty. (R. 83.) Upon further questioningby the trial court, she indicated that she did notknow whether she could follow the law inrecommending a sentence of death or even vote insuch a case. (R. 84, 86, 89- 90.) Prospective jurorV.C. indicated that she could not impose the deathpenalty under any circumstances. (R. 105, 107.)Prospective jurors M.E. and V.G. indicated that,based on their religious beliefs, they could not voteto impose the death penalty under any set of facts orcircumstances. (R. 119- 22.) Contrary to theappellant's contention in his brief to this court, notone of these prospective jurors indicated that he orshe could follow the law despite his or her opinionsabout the death penalty.
[61][62][63][64][65] Initially, we note that theState may successfully challenge for cause anyprospective juror who would refuse to impose thedeath penalty under any circumstances.
"On the trial for any offense which may bepunished capitally ..., it is a good cause ofchallenge by the state that the person wouldrefuse to impose the death penalty regardless ofthe evidence produced...."
§ 12-16-152, Ala.Code 1975."In Tavlor v. State, 666 So.2d 36, 47(Ala.Cr.App. 1994), this Court outlined theguidelines for determining whether a potential
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juror should be excluded for cause based on hisor her feelings concerning capital punishment:" ' "The proper standard for determining whethera prospective juror may be excluded for cause
because of his or her views on capital punishmentis 'whether the juror's views would "prevent orsubstantially impair the performance of his dutiesas a juror in accordance with his instructions andhis oath." ' Wainwright v. Witt, 469 U.S. 412.424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985);Gray v. Mississippi. 481 U.S. 648 [at 657-581,107 S.Ct. 2045, 2051, 95 L.Ed.2d 622 (1987).'The crucial inquiry is whether the veniremancould follow the court's instructions and obey hisoath, notwithstanding his views on capitalpunishment.' Dutton v. Brown. 812 F.2d 593,595 (10th Cir.), cert. denied, Dutton v. Maynard
484 U.S. 836, 108 S.Ct. 116, 98 L.Ed.2d 74(1987). A juror's bias need not be proved with'unmistakable clarity' because 'juror bias cannotbe reduced to question and answer sessions whichobtain results in the manner of a catechism.' Id." ' "A trial judge's finding on whether or not aparticular juror is biased 'is based upondetermination of demeanor and credibility thatare peculiarly within a trial judge's province.'Witt. 469 U.S. at 428, 105 S.Ct. at 854 [, 83L.Ed.2d 841]. That finding must be accordedproper deference on appeal. Id. 'A trial court'srulings on challenges for cause based on bias *953
[are] entitled to great weight and will not bedisturbed on appeal unless clearly shown to be anabuse of discretion.' Nobis v. State, 401 So.2d191, 198 (Ala.Cr.App.), cert. denied, Ex parte
Nobis, 401 So.2d 204 (Ala.1981)."'Martin v. State. 548 So.2d 488, 490-91
(Ala.Cr.App.1988), affirmed, 548 So.2d 496(Ala.1989), cert. denied, 493 U.S. 970, 110 S.Ct.419, 107 L.Ed.2d 383 (1989). "[A] blanket,declaration of support of or opposition to thedeath penalty is not necessary for a trial judge todisqualify a juror." Ex parse Whisenhant, 555So.2d 235, 241 (Ala.1989), cert. denied, 496 U.S.943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990).'"Based on the record before us, including thejuror's unequivocal response that she would notbe able to impose the death penalty in any case,we conclude that the trial court did not err ingranting the State's challenge for cause."
Dallas v. State, 711 So.2d 1101, 1107(Ala.Cr.App.1997), affd, 711 So.2d 1114 (Ala.),cert. denied, 525 U.S. 860, 119 S.Ct. 145, 142L.Ed.2d 118 (1998).
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In this case, the prospective jurors indicated eitherthat they could not vote' on the imposition ofpunishment or that they would not vote to imposethe death penalty regardless of the evidenceproduced. Therefore, the trial court's granting ofthe State's challenges for cause did not constitute anabuse of the court's discretion and did not rise to thelevel of plain error.
[66][67] The appellant also contends that theexclusion of these prospective jurors violated hisright to be tried by a jury comprised of a faircross -section of the community. Again, he did notpresent this claim to the trial court. Therefore, wereview it under the plain error rule. Rule 45A, Ala.R.App. P.
"In Johnson v. State, 502 So.2d 877(Ala.Cr.App.1987), this court faced a similar factsituation . The appellant in Johnson argued thatexcluding veniremembers who expressedopposition to the death penalty denied him theright to a jury comprised of a fair cross-section ofthe community. The Johnson court relied onLockhart v. McGee, 476 U.S. 162, 106 S.Ct.1758, 90 L.Ed.2d 137 (1986), in which theUnited States Supreme Court stated:" ' "The essence of a 'fair cross-section' claim isthe systematic exclusion of 'a "distinctive" groupin the community.' Duren [v. Missouri, 439 U.S.357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579(4979) ]. In our view, groups defined solely interns of shared attitudes that would prevent orsubstantially impair members of the group fromperforming one of their duties as jurors, such asthe 'Witherspoon-excludables' at issue here, arenot 'distinctive groups' for fair cross-sectionpurposes."" 'Lockhart v. McCree, 476 U.S. at 174, 106 S.Ct.at 1765[, 90 L.Ed.2d 137].'"Johnson, 502 So.2d at 879."
Clemons v. State, 720 So.2d 961, 973-74(Ala.Cr.App. 1996), affd, 720 So.2d 985 (Ala.1998), cert. denied, 525 U.S. 1124, 119 S.Ct. 907, 142L.Ed.2d 906 (1999). Thus, the appellant's faircross-section argument is without merit.
XIII.
[68][69][70][71][72][73] The appellant's thirteenthargument is that the trial court improperly admittedinto evidence a bullet for which the State hadallegedly not established a proper chain of custody.Dr. James Lauridson, who performed the autopsy
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on the victim's body , recovered a bullet from the*954 victim 's heart and testified that that woundcaused the victim 's death. He testified that heplaced the bullet in a manila envelope , sealed andinitialed the envelope , and gave the envelope to JoeSaloom . Joe Saloom , the State 's firearms andtoolmarks expert , testified that James Sparrow, aforensic investigator who works for Dr . Lauridson,delivered the bullet to him in a sealed manilaenvelope. James Sparrow did not testify at trial,and the appellant objected to the admission of thebullet, arguing that the State had not established achain of custody for it . The trial court overruled theappellant's objection , stating, "I'm going to admit it.It's a weak link, if anything." (R. 500.)
"We have held that the State must establish achain of custody without breaks in order to lay asufficient predicate for admission of evidence.Ex parse Williams . 548 So.2d 518 , 520 (Ala.1989). Proof of this unbroken chain of custody isrequired in order to establish sufficientidentification of the item and continuity ofpossession , so as to assure the authenticity of theitem. kL In order to establish a proper chain, theState must show to a 'reasonable probability thatthe object is in the same condition as, and notsubstantially different from , its condition at thecommencement of the chain . McCruv v. State,548 So.2d 573, 576 (Ala.Crim.App . 1988)."
Ex parse Holton, 590 So .2d 918, 919-20(Ala. 1991).
" ' "The purpose for requiring that the chain ofcustody be shown is to establish to a reasonableprobability that there has been no tampering withthe evidence." Er parse Jones, 592 So .2d 210,212 (Ala.1991); Harrell v. State, 608 So.2d 434,437 (Ala.Crim.App. 1992); Smith v. State, 583So.2d 990 (Ala.Crim.App.1991 ), cert. denied,583 So .2d 993 (Ala.1991).... Evidence has beenheld correctly admitted even when the chain ofcustody has a weak or missing link. Gordon v.State, 587 So .2d 427, 433 (Ala.Crim.App.1990),rev'd 587 So .2d 434 (Ala.), on remand, 587 So.2d435 (Ala .Crim.App.), appeal after remand, 591So-2d at 149 (Ala.Crim.App.1991 ); Shute v.State, 469 So .2d 670, 674 (Ala.Crirn .App.1984).'
Davis v. State , 718 So .2d 1148, 1161(Ala.Cr.App.1995), affd, 718 So.2d 1166(Ala.1998), cert. denied , 525 U.S. 1179, 119 S.Ct.1117, 143 L.Ed.2d 112 ( 1999) (quoting Slaton v.State, 680 So .2d 879, 893 (Ala.Cr.App. 1995), affd,680 So .2d 909 (Ala.1996), cert. denied, 519 U.S.
Page 33
1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997))."While each link in the chain of custody must beidentified , it is not necessary that each link testify inorder to prove a complete chain of custody.Harrison V. State , 650 So.2d 603(Ala.Crim.App.1994)." Ex parse v. Slaton, 680So.2d 909 , 918 (Ala . 1996), cert . denied, 519 U.S.1079, 117 S.Ct. 742, 136. L.Ed.2d 680 (1997).Finally, "evidence that an item has been sealed isadequate circumstantial evidence to establish thehandling and safeguarding of the item ." Lane v.State, 644 So.2d 1318, 1321 (Ala.Cr.App.1994).
Although James Sparrow did not testify , the Statepresented sufficient evidence to show that the bulletwas in the same condition when it was delivered toSaloom as it was when Dr. Lauridson removed itfrom the victim 's body . The absence of Sparrow'stestimony constitutes , at most , a weak link in thechain of custody , which would go to the weight andcredibility of the evidence rather than itsadmissibility . Smith v. State, 677 So.2d 1240(Ala.Cr .App.1995 ); Knight v. State, 622 So.2d 426,430 (Ala .Cr.App . 1992).
[74] Moreover, even if there had been a break inthe chain of custody for the bullet , Dr. Lauridsonidentified the bullet *955 that was introduced intoevidence as the one he removed from the victim'sbody during the autopsy.
"Physical evidence connected with or collected inthe investigation of a crime shall not be excludedfrom consideration by a jury or court due to afailure to prove the chain of custody of theevidence . Whenever a witness in a criminal trialidentifies a physical ..piece of evidence connectedwith or collected in the investigation of a crime,the evidence shall be submitted to the jury orcourt for whatever weight the jury or court maydeem proper. The trial court in its charge to thejury shall explain any break in the chain ofcustody concerning the physical evidence."
12-21-13, Ala.Code 1975 . Therefore , the trialcourt properly admitted the bullet into evidence.
XIV.
[75] The appellant 's fourteenth argument is thatthere was not sufficient evidence to support hisconviction . Specifically , he contends that theevidence does not establish that the murderoccurred during a robbery or that he was involvedin a robbery.
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[76][77][78][79][80][81 ][82][83][8`)][85][86]Section 13A-5-40(a)(2), Ala.Code 1975, providesthat a murder committed "by [a] defendant during arobbery in the first degree or an attempt thereof
committed by the defendant" constitutes capital
murder."(a) A person commits the crime of robbery in thefirst degree if he violates Section 13A-8-43 and
he:"(1) Is armed with a deadly weapon or dangerous
instrument; or"(2) Causes serious physical injury to another."(b) Possession then and there of an article usedor fashioned in a manner to lead any person whois present reasonably to believe it to be a deadlyweapon or dangerous instrument, or any verbal orother representation by the defendant that he isthen and there so armed, is prima facie evidenceunder subsection (a) of this section that he was soarmed."
§ 13A-8-41, Ala.Code 1975. Section 13A-8-43,Ala.Code 1975, provides:
"(a) A person conunits the crime of robbery in thethird degree if in the course of committing a thefthe:"(1) Uses force against the person of the owner orany person present with intent to overcome hisphysical resistance or physical power ofresistance; or"(2) Threatens the imminent use of force againstthe person of the owner or any person presentwith intent to compel acquiescence to the takingof or escaping with the property."
Alabama's accomplice liability statute provides:"A person is legally accountable for the behaviorof another constituting a criminal offense if, withthe intent to promote or assist the commission ofthe offense:"(1) He procures, induces or causes such otherperson to commit the offense; or"(2) He aids or abets such other person incommitting the offense; or"(3) Having a legal duty to prevent thecommission of the offense, he fails to make aneffort he is legally required to make."
§ 13A-2-23, Ala.Code 1975."To sustain a conviction under § 13A-5-40(a)(2)for capital robbery- murder, the state must provebeyond a reasonable doubt: (1) a 'robbery in thefirst degree or an attempt thereof,' as defined by §13A-8-41; (2) a 'murder,' as defined *956 by §13A-6-2(a)(1); and (3) that the murder wascommitted 'during' the robbery or attempted
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robbery, i.e., that the murder was committed 'inthe course of or in, connection with thecommission of, or in immediate flight from thecommission of the robbery or attempted robberyin the first degree, § 13A-5-39(2). Connolly v.
State, 500 So.2d 57 (Ala.Cr.App.1985), affd, 500So.2d 68 (Ala.1986). The capital crime ofrobbery when the victim is intentionally killed isa single offense beginning with the act of robbingor attempting to rob and culminating in the act ofintentionally killing the victim; the offenseconsists of two elements, robbing and intentionalkilling. Davis v. State, 536 So.2d 110(Ala.Cr.App.1987); Magwood v. State, 494So.2d 124 (Ala.Cr.App.1985), affd, Es parteMagwood. 494 So.2d 154 (Ala.), cert. denied,479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599(1986). The intentional murder must occurduring the course of the robbery in question;however, the taking of the property of the victimneed not occur prior to the killing. Clark v. State,451 So.2d 368 (Ala.Cr.App.), cert. denied, 451So.2d 368 (Ala.1984). While the violence orintimidation must precede or be concomitant withthe taking, it is immaterial that the victim is deadwhen the theft occurs. Thomas v. State, 460So.2d 207 (Ala.Cr.App.1983), affd, 460 So.2d216 (Ala. 1984)." 'As the Alabama Supreme Court held in Cobernv. State. 273 Ala. 547, 142 So.2d 869 (1962),"the fact that the victim was dead at the time theproperty was taken would not militate [against afinding] of robbery if the intervening timebetween the murder and the taking formed acontinuous chain of events." Clements v. State,370 So.2d 708, 713 (Ala.Cr.App.1978), affirmedin pertinent part, 370 So.2d 723 (Ala.1979);Clark v. State, 451 So.2d 368, 372(Ala.Cr.App.1984). To sustain any other position"would be tantamount to granting to would-berobbers a license to kill their victims prior torobbing them in the hope of avoiding prosecutionunder the capital felony statute." Thomas v. State,460 So.2d 207, 212 (Ala.Cr.App.1983), affirmed,460 So.2d 216 (Ala. 1984)." 'Although a robbery committed as a "mereafterthought" and unrelated to the murder will notsustain a conviction under § 13A-5-40(a)(2) forthe capital offense of murder-robbery, seeBt (ford v. State, supra. O'Ptvv v. State, supra [642S.W.2d 748 (Tex.Cr.App.1981) ], the question ofa defendant's intent at the time of the commissionof the crime is usually an issue for the jury to
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resolve. Crowe v. State, 435 So.2d 1371, 1379
(Ala.Cr.App. 1983). The jury may infer from thefacts and circumstances that the robbery beganwhen the accused attacked the victim and thecapital offense was consummated when thedefendant took the victim's property and fled.Cobern v. State, 273 Ala. 547, 550, 142 So.2d869, 871 (1962). The defendant's intent to- robthe victim can be inferred where "[t]heintervening time, if any, between the killing androbbery was part of a continuous chain ofevents ." Thomas v. State, 460 So.2d 207, 212(Ala.Cr.App. 1983), affirmed, 460 So.2d 216(Ala.1984). See also Cobern v. State, 273 Ala.547, 142 So.2d 869 (1962); Crowe v. State, 435So.2d 1371 (Ala.Cr.App.1983); Bufford v. State,382 So.2d 1162 (Ala.Cr.App.), cert, denied, 382So.2d 1175 (Ala.1980); Clements v. State, 370
So.2d 708 (Ala.Cr.App.1978), affirmed inpertinent part, 370 So.2d 723 (Ala.1979).'"Connolly, 500 So.2d at 63."
*957 Hallford v. State, 548 So.2d 526, 534-35(Ala.Cr.App.1988), affd, 548 So.2d 547 (Ala.),cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107L.Ed.2d 342 ( 1989).
"It is sometimes said that a robbery committed asa 'mere afterthought' and unrelated to the murderwill not sustain a conviction for the capitaloffense of murder-robbery. Connolly v. State,500 So.2d 57 (Ala.Cr.App.1985), affd, 500So.2d 68 (Ala.1986). However, the appellant'sintent to rob the victim may lawfully andcorrectly be inferred where the killing and therobbery were part of a continuous chain of events.
Hallford v. State, 548 So.2d 526(AIa.Cr.App.1988), affd, 548 So.2d 547 (Ala.),cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107L.Ed.2d 342 (1989)."
Harris v. State, 671 So.2d 125, 126(Ala_Cr.App.1995). Finally,
" '[i]n determining the sufficiency of the evidenceto sustain the conviction, this Court must acceptas true the evidence introduced by the State,accord the State all legitimate inferences-therefrom , and consider the evidence in the lightmost favorable to the prosecution .' Faircloth v.State, 471 So.2d 485, 489 (Ala.Cr.App.1984),affirmed, Ex parte Faircloth, [471] So.2d 493(Ala. 1985),
" ' "The role of appellate courts is not to say whatthe facts are . Our role, ... is to judge whether theevidence is legally sufficient to allow submission
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of an issue for decision to the jury." Ex parseBankston . 358 So-2d 1040 , 1042 (Ala.1978). Anappellate court may interfere with the jury'sverdict only where it reaches "a clear conclusionthat the finding and judgment are wrong ." Kelly
v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962). "The rule is clearly established in this State thata verdict of conviction should not be set aside onthe ground of the insufficiency of the evidence tosustain the verdict , unless , after allowing allreasonable presumptions of its correctness, thepreponderance of the evidence against the verdictis so decided as to clearly convince the court thatit was wrong and unjust ." Bridges v . State. 284Ala. 412, 420, 225 So. 2d 821 (1969).... A verdicton conflicting evidence is conclusive on appeal.Rober on v. State, 162 Ala. 30, 50 So . 345 (1909). "[W]here there is ample evidence offered by thestate to support a verdict, it should not beoverturned even though the evidence offered bythe defendant is in sharp conflict therewith andpresents a substantial defense ." Fuller v. State.269 Ala. 312, 333, 113 So.2d 153 ( 1959), cert.denied , Fuller v. Alabama . 361 U.S. 936, 80S.Ct. 380, 4 L.Ed. 2d 358 (1960).' Granger, 473So.2d at 1139."" '... Circumstantial evidence alone is enough tosupport a guilty verdict of the most heinouscrime , provided the jury believes beyond areasonable doubt that the accused is guilty.'White v. State, 294 Ala. 265, 272, 314 So.2d 857,cert. denied , 423 U.S. 951, 96 : S.Ct. 373, 46L.Ed.2d 288 (1975). 'Circumstantial evidence isin nowise considered inferior evidence and isentitled to the same weight as direct evidenceprovided it points to the guilt of the accused.'Cochran v. State, 500 So.2d 1161, 1177(Ala,Cr.App.1984 ), affirmed in pertinent part,reversed in part on other grounds, Ex parteCochran, 500 So.2d 1179 (Ala.1985)."
White v. State, 546 So.2d 1014, 1017(Ala.Cr.App. 1989).
After instructing the jury on the elements ofrobbery-murder , the trial court defined the word"during" as follows:
"The phrase 'during ,' ladies and gentlemen, meansin the course of, the commission *958 of, or inconnection with or in immediate flight from thecommission of a robbery."
(R. 92.) Thereafter , the trial court also instructedthe jury on the principles of accomplice liability, orcomplicity , stating as follows:
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"I want to talk to you about what we callcomplicity. And the law is this. A person islegally accountable for the behavior of anotherperson which constitutes a criminal offense if,with the intent to 'promote or assist in thecommission of that offense, he aids or abets thatother person in committing the offense. Thewords 'aid or abet' ... comprehend all assistancerendered by acts, words, encouragement, support,or presence, actual or constructive, to renderassistance should it become necessary."The State has the burden of proving beyond areasonable doubt from the evidence that therewas, by pre-arrangement or on the spur of themoment, a common enterprise, or adventure andthat a criminal offense was contemplated beforeyou would be justified in finding that thedefendant, Mr. Jackson, aided or abetted."A person cannot be an alder or abettor unless hispurpose is to aid the commission of the offensecharged in the indictment. Mere presence aloneis not sufficient in order to make one an aider orabettor."When two or more persons enter upon anunlawful purpose with a common intent to aidand encourage each other with anything withintheir common design, they are each criminallyresponsible for everything which mayconsequently and subsequently result from thatunlawful purpose, whether specificallycontemplated or not."
(R. 97-99.) Applying those instructions to theevidence presented at trial, as set forth in thisopinion and in the trial court's sentencing order,there was sufficient evidence to show that themurder occurred during a robbery. Therefore, theevidence was sufficient to support the appellant'scapital murder conviction.
Xv.
[87] The appellant's fifteenth argument is that thetrial court improperly treated robbery as both anelement of the capital offense and as an aggravatingcircumstance . This practice is commonly referredto as "double counting" or "overlapping." Theappellant specifically contends that "the use ofrobbery both as an elevator in the guilt-phase and asan aggravator in the penalty- phase failed to narrowthe class of cases eligible for the death penalty,resulting in the arbitrary imposition of the deathpenalty." (Appellant's brief at p. 58.) fie alsocontends that this "double counting" punished him
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twice for the same act, thus violating the Fourth,Fifth, Sixth, Eighth, and Fofirteenth Amendments tothe United States Constitution, the AlabamaConstitution, and Alabama law.
The appellant makes only bare allegations that hisFourth, Sixth, Eighth, and Fourteenth Amendmentrights were violated. Therefore, we will addressonly his Fifth Amendment argument. Section13A-5-50, Ala.Code 1975, provides, in pertinentpart:
"The fact that a particular capital offense asdefined in Section 13A-5- 40(a) necessarilyincludes one or more aggravating circumstancesas specified in Section 13A-5-49 shall not beconstrued to preclude the finding andconsideration of that relevant circumstance orcircumstances in determining sentence."
*959 Accordingly, under § 13A-5-50, Ala.Code1975, a jury may consider an element of capitalmurder as an aggravating circumstance if thatelement is listed in § 13A-5-49, Ala.Code 1975, asan aggravating circumstance. Further, this court hasheld that the use of an element of capital murder asan aggravating circumstance does not punish adefendant twice for the same offense. Burton v.
State. 651 So.2d 641 (Ala.Cr.App.1993), affd, 651So.2d 659 (Ala.1994), cert. denied, 514 U.S. I 115,115 S_Ct. 1973, 131 L.Ed.2d 862 (1995).
" 'This practice, known as "double counting" or"overlapping," has been upheld. Haney v. Stare,603 So.2d 368 (Ala.Cr.App.1991), affd, 603So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925,113 S.Ct. 1297, 122 L.Ed.2d 687 (1993); Kuenael[v. State, 577 So.2d 474, 489 (Ala.Cr.App.1990),
atT'd, 577 So.2d 531 (Ala.). cert. denied, 502 U.S.886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991) ]." 'Section 13A-5-50. Code of Alabama 1975,states , in part, as follows:" ' "The fact that a particular capital offense asdefined in section 13A- 5-0(a) necessarilyincludes one or more aggravating circumstancesas specified in section 13A-5-49 shall not beconstrued to preclude the finding andconsideration of that relevant circumstance orcircumstances in determining sentence."" 'Clearly, § 13A-5-50 provides that a jury mayconsider an element of capital murder as anaggravating circumstance if that element is listedin § 13A-5-49. Further, this court has repeatedlyheld that the use of an element of capital murderin such a way does not, as the appellant argues,punish a defendant twice for the same offense.
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Kuenzel, supra ; see also Ex parte Kennedy, 472
So.2d 1106 (Ala.), cert. denied, 474 U.S. 975,106 S.Ct. 340, 88 L.Ed.2d 325 (1985)." ' "A capital punishment scheme, under which
the same felony may form the basis of an
essential element of the crime and an aggravating
circumstance for consideration by the jury inrecommending a sentence , does not constitute a
denial of the guarantee against double jeopardy."
it 'Kuen_el, 577 So.2d at 488, quoting
Fortenherrv v. State, 545 So.2d 129, 142(Ala.Cr.App.1988), affd, 545 So.2d 145(Ala.1989), cert. denied, 495 U.S. 911, 110 S.Ct.1937, 109 L.Ed.2d 300 (1990).'"Burton, 651 So 2d at 657-58."
Hutcherson, 677 So.2d at 1201. Therefore, theappellant's argument is without merit.
XVI.
[88] The appellant 's sixteenth argument is that "theAlabama statute limiting court-appointed attorneys'fees to one thousand dollars for out-of- court workfor each phase of trial is deplorable andunconstitutional." (Appellant's brief at p. 59.)Section 15-12-21(d), Ala.Code 1975, limits fees forcourt-appointed attorneys to $1,000 for out-of-courtwork in a capital trial, based on a $20 hourly rate.He contends that this limitation on compensationviolates the separation of powers doctrine,constitutes a taking without just compensation,deprives indigent capital defendants of the effectiveassistance of counsel , and denies equal protection inviolation of the Fifth, Sixth, Eighth, and FourteenthAmendments to the United States Constitution, theAlabama Constitution, and Alabama state law.These claims have previously been addressed anddecided adversely to the appellant. Stewart v. State,730 So.2d 1203 (Ala.Cr.App.1996), affd, 730So.2d 1246 (Ala.1999); Ex parte Smith. 698 So.2d219 (Ala.), cert. denied, *960522 U.S. 957, 118S.Ct. 385, 139 LEd.2d 300 (1997); Boyd v. State.
715 So.2d 825 (Ala.Cr.App.1997), affd, 715 So.2d852 (Ala.), cert. denied, 525 U.S. 968, 119 S.C1.416, 142 L.Ed.2d 338 (1998); Slaton v. State. 680So.2d 879 (Ala.Cr.App.1995), affd, 680 So.2d 909(Ala.1996), cert. denied, 519 U.S. 1079, 117 S.Ct.742, 136 L.Ed.2d 680 (1997); May v. State, 672
So.2d 1310 (Ala.1995); Barbour v. State, . 673So.2d 461 (Ala.Cr.App.1994), affd, 673 So.2d 473(Ala.1995), cert. denied, 518 U.S. 1020, 116 S.Ct.2556, 135 L.Ed.2d 1074 (1996); Johnson v. State.620 So.2d 679 (Ala.Cr.App.1992), rev'd on other
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grounds, 620 So 2d 709 (Ala.), cert. denied, 510U.S. 905, 114 S.Ct. 285. '126 L.Ed.2d 235 (1993);Smith v. State, 581 So.2d 497 (Ala.Cr.App.1990),rev'd on other grounds, 581 So.2d 531 (Ala.1991);Ex parte Grayson, 479 So.2d 76 (Ala.), cert.denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d157 (1985); Sparks v. Parker, 368 So.2d 528 (Ala.), appeal dismissed, 444 U.S. 803, 100 S.Ct. 22, 62L.Ed.2d 16 (1979).
Moreover , the statute provides that counsel shall bepaid for all hours spent in-court and shall bereimbursed for any expenses reasonably incurred aslong as the trial court approves those expenses inadvance. Therefore, the appellant 's contentions arewithout merit.
XVII.
[89] The appellant's seventeenth argument is thatAlabama's method of execution constitutes crueland unusual punishment. However, both Alabamacourts and the United States Supreme Court haverepeatedly held that the death penalty is not per secruel and unusual punishment and that electrocutionas a means of capital punishment does not constitutecruel and unusual punishment Williams v. State,627 So.2d 985 (Ala.Cr.App. 199 1), affd, 627 So.2d999 (Ala.1993), cert. denied, 511 U.S. 1012, 114S.Ct. 1387, 128 L.Ed.2d 61 (1994); Zant v.Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d235 (1983); ,fitt v. Florida, 428 U.S. 242, 96S.Ct. 2960, 49 L.Ed.2d 913 (1976); Furman V.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d346 (1972); Bovkin v. State, 281 Ala. 659, 207So.2d 412 (1968), reversed on other grounds, 395U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
[90] The appellant also argues that Alabama'smethod of electrocution is unreliable and that ittherefore constitutes cruel and unusual punishment.He contends that the State "will utilize faultyequipment, unqualified personnel , and inadequateprocedures " in executing him. (Appellant 's brief atp. 60.) In support thereof, he asserts that Alabama'selectric chair has malfunctioned during two of thelast ten executions, and he specifically refers toseveral executions that he contends were "botched."We addressed a similar argument in McNair v.State. 706 So.2d 828 (Ala.Cr.App.1997), cert.denied, 523 U.S. 1064, 118 S.Ct. 1396, 140L.Ed.2d 654 ( 1998), in which we held:
" 'The United States Supreme Court addressed the
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death by electrocution issue in In re Kemmler,
136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890).In determining what constitutes cruel and
unusual punishments, the Court stated:"Punishments are cruel when they involve tortureor a lingering death; but the punishment of deathis not cruel within the meaning of that word asused in the constitution. It 'implies there issomething inhuman and barbarous ,--somethingmore than the mere extinguishment of life." Id. at
447, 10 S.Ct. at 933. In holding that such apunishment is not cruel or unusual, the Courtreasoned "that this act was passed in the effort todevise a more humane method of reaching theresult" . Id. Accord *961Spinkellink v.
Wainwright, 578 F.2d 582, 616 (5th Cir.1978).Appellant's contention is therefore without merit;death by electrocution does not amount to crueland unusual punishment per se, but is aconstitutional means of imposing a sentence ofdeath.'"Jackson v. State, 516 So.2d 726, 737(Ala..Cr.App.1985), remanded on other grounds,516 So.2d 768 (Ala.1986)."The appellant also contends that trial counselshould have argued that Alabama 'utilizesinadequate equipment, unqualified personnel, andinadequate procedures' and that Alabama'selectric chair has consistently resulted 'inexcessive burning and mutilation of condemnedprisoners and rendered death by electrocution inAlabama unpredictable and consistentlytorturous,' as, he asserts, is evidenced by theexecutions of Horace Dunkins and John Evans (inthose executions repeated applications ofelectrical current were required because of amalfunction in the apparatus) and by theexecutions of Dunkins, Michael Lindsay, andWayne Ritter (post-execution examinationsrevealed burns to portions of the prisoners'bodies)." 'In Francis v. Resweber, 329 U.S. 459, 67 S.Ct.374, 91 L.Ed. 422 (1947), the United StatesSupreme Court, in addressing the issue ofwhether it was cruel for a state to electrocute aprisoner after the state's first attemptedelectrocution failed, stated:" ' "The cruelty against which the Constitutionprotects a convicted man is cruelty inherent in themethod of punishment, not the necessarysuffering involved in any method employed toextinguish life humanely. The fact that anunforeseeable accident prevented the prompt
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consummation of the sentence cannot, it seems tous, add an element of 'cruelty to a subsequentexecution. There is no purpose to inflictunnecessary pain nor any unnecessary paininvolved in the proposed execution.... We cannotagree that the hardship imposed upon thepetitioner rises to that level of hardshipdenounced as denial of due process because ofcruelty.""'Id. at 464, 118 S.Ct. 1396, 67 S.Ct. at 376-77.
'The very issues raised by appellant here wereaddressed in Ritter- v. Smith, 568 F.Supp. 1499(S.D.Ala.1983), afrd in part, rev'd in unrelatedpart, 726 F.2d 1505 (1 1 th Cir.), cert. denied, 469U.S. 869, 105 S.Ct. 218[, 83 L.Ed.2d 148] (1984), wherein the court adopted the opinion and viewsexpressed by Judge Sam C. Pointer after ahearing on the issues, in Raines v. Smith, No.83-P-1080-S (N.D.Ala.) (unpublished orderentered June 3, 1983) (certified copy attached asAppendix, Ritter v. Smith, 568 F.Supp. at 1525-27). The claims presented to Judge Pointer wereas follows: (1) given the nature of the equipmentand the procedures used, there was unnecessaryand wanton infliction of pain and suffering uponpersons subject to electrocution in Alabama; (2)the equipment and method involve an unreliablemethod of execution; and (3) electrocutioninvolves, in its method and equipment, amutilation of the body which should be viewed ascontrary to and violative of the EighthAmendment. Id. at 1525-26.
'After an evidentiary hearing, Judge Pointerheld that the claims were due to be dismissed. Id.at 1527. In reaching this decision, Judge Pointernoted that the testimony established that over thepast 50 *962 years the chair in question had beenused approximately .154 times without anyfailure; that Evans suffered no pain after theinitial shock; and that the possibility that thechair may malfunction at some time in the futuredoes not render its use unconstitutional. Id. at1526. Judge Pointer relied upon Francis v.Resweber and In re Kenimler [, 136 U.S. 436, 10S.Ct. 930, 34 L.Ed. 519 (1890),] in holding thatAlabama's method of electrocution isconstitutional. Id. at 1526-27. We agree." There is no evidence before this court thatcontradicts the findings made by Judge Pointer.There has been absolutely no showing that theState's method of enforcing a death sentenceinflicts any more pain than is absolutelynecessary. It has not been established that the
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equipment used in the electrocution of JohnLewis Evans malfunctioned or that Evans feltanything after the first split second of the first joltof electricity administered.'"Jackson, 516 So.2d at 738."
706 So.2d at 846-47. Thus, the appellant'sarguments about Alabama's method of execution arewithout merit.
XVIII.
[91] The appellant's eighteenth argument is that thetrial court improperly overrode the jury' s unanimousrecommendation that he be sentenced toimprisonment for life without -the possibility ofparole. In support thereof, he complains that"Alabama is the only state in the country whichallows trial courts to reject jury capital sentencingverdicts without reference to any uniform norm orstandard." (Appellant's brief at p. 62.) He furthercontends that, "[b]ecause the override isstandardless in Alabama, there is a haphazard andinconsistent application of the ultimate sanction in amanner that is inconsistent with the precedents ofthe Supreme Court-" (Appellant's brief at p. 65.)We have previously addressed and rejected similararguments in Carr v. State, 640 So.2d 1064(Ala.Cr.App.1994), and in Bush v. State, 695 So.2d70 (Ala.Cr.App.1995), affd, 695 So.2d 138 (Ala.),cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139L.Ed.2d 320 (1997). In Carr, we explained:
"The appellant maintains that the jury overrideprovision of Ala.Code 1975, § 13A-5-47(e), isunconstitutional. He claims that the statutecontains no guidelines for the sentencing judge tofollow and that the statute violates the EighthAmendment, particularly in a case where, as here,the jury unanimously recommends a sentence oflife imprisonment without parole."Sentencing by a jury is not constitutionallyrequired. Spasiano v. Florida, 468 U.S. 447, 104S.Ct. 3154, 82 L.Ed.2d 340 (1984). Proffitt v.Florida, 428 U.S. 242, 251-52, 96 S.Ct. 2960,2966-67, 49 L.Ed.2d 913 (1976), and §13A-5-47(e) set 'out a standard of review for juryoverride that meets constitutional requirements.'McMillian v. State, 594 So.2d 1253, 1272-73(Ala.Cr.App. 199 1), remanded on other grounds,594 So.2d 1288 (Ala.1992). The argument thatthe jury override provision of § 13A-5-47(e) isconstitutionally infirm because it allows for the'arbitrary and standardless' imposition of thesentence of death has been repeatedly rejected by
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the appellate courts of, this state. See, e.g., &parte Jones, 456 So.2d 380, 381-83 (Ala.1984),cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84L.Ed.2d 838 (1985); McMillian v. State, 594So.2d at 1272; Parker v. State. 587 So.2d 1072,1098 (Ala.Cr.App. 199 1). See also Ex parte Giles,632 So.2d 577 (Ala.1993) (holding *963 that
Ala. Const. § I1 'does not preclude judicialoverride of the jury's sentencing recommendationin a capital case')."The trial court's sentencing order reflects the factthat the court gave 'consideration to therecommendation of the jury in its advisory verdictthat the defendant be sentenced to life withoutparole.' R. 65. The court, however, afterindependently weighing the aggravating andmitigating circumstances, determined that theaggravating circumstance outweighed themitigating circumstances and chose not to acceptthe jury's recommendation. Constitutional andstatutory provisions require no more."
Carr, 640 So.2d at 1073-74."The appellant's contention that the overrideprovision of § 13A-5-47(e) is faciallyunconstitutional is without merit. The UnitedStates Supreme Court, as well as the courts of thisstate, have consistently upheld the validity of thejudicial override of advisory jury verdicts. See,e.g., Harris v. Alabama, 513 U.S. 504, 115 S.Ct.1031, 130 L.Ed.2d 1004 (1995); Clemons v.Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108L.Ed.2d 725 (1990); Spa_iano v. Florida, 468U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Ex parte Jones, 456 So.2d 380 (Ala.1984), cert.denied, 470 U.S. 1062, 105 S.Ct. 1779, 84L.Ed.2d 838 (1985); Freeman v. Stale, 555 So.2d
196 (Ala.Cr.App.1988), affd, 555 So.2d 215(AIa.1989), cert. denied, 496 U.S. 912, 110 S.Ct.2604, 110 L.Ed.2d 284 (1990). In this state, therecommendation of the jury is advisory only andis not binding upon the trial court. Ex parteJones. The trial court, not the jury, is thesentencing authority. Freeman v. State."Section 13A-5-47(e) prescribes the followingstandard of review for jury override, whichstandard meets constitutional requirements: 'Thewhole catalog of aggravating circumstances mustoutweigh mitigating circumstances before a trialcourt may opt to impose the death penalty byoverriding the jury's recommendation.' Ex parteJones, 456 So.2d at 382. The appellant'sargument that the Alabama Death Penalty Actpermits a trial court to impose a death sentence
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without any standards to guide its discretion issimply not true and ignores the requirements ofthe override provision."The appellant argues that we should follow theFlorida standard for jury override prescribed inTedder v. State, 322 So.2d 908 (Fla.1975).Tedder provides that, in order for a trial court toreject a jury's recommendation of a sentence oflife imprisonment without parole, 'the factssuggesting a sentence of death [must be] so clearand convincing that virtually no reasonableperson could differ.' Id. at 910. The Tedder
standard is not constitutionally mandated, Harris
v. Alabama: Ex parte Jones, and we have chosennot to read the Tedder standard into our deathpenalty statute."What we do require is that, before sentencing adefendant to death, the trial court consider all theavailable evidence; hear arguments onaggravating and mitigating circumstances; enterwritten findings of fact summarizing the crimeand the defendant's participation in it; makespecific written findings concerning the existenceor nonexistence of each aggravating circumstanceenumerated in § 13A-5-49, each mitigatingcircumstance enumerated in § 13A-5-51, and anyadditional mitigating circumstance offeredpursuant to § 13A- 5-52; consider and weigh theadvisory verdict of the jury; consider and weighthe presentence investigation report; considerand weigh , the mitigating and aggravatingcircumstances; ' and determine. *964 that theaggravating circumstances outweigh themitigating circumstances. We believe that thisscheme adequately channels the trial court'sdiscretion so as to prevent arbitrary results. TheEighth Amendment does not require the state todefine the weight the sentencing judge mustaccord an advisory verdict. Harris v. Alabama." '[T]he sentencing authority in Alabama, the trialjudge, has unlimited discretion to consider anyperceived mitigating circumstances , and he canassign appropriate weight to particular mitigatingcircumstances . The United States Constitutiondoes not require that specific weights be assignedto different aggravating and mitigatingcircumstances . Murrw v. State, 455 So.2d 53(Ala.Cr.App. 1983), rev'd on other grounds, 455So 2d 72 (AIa.1984). Therefore, the trial judge isfree to consider each case individually anddetermine whether a particular aggravatingcircumstance outweighs the mitigatingcircumstances or vice versa. Moore v. Balkcom,
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716 F.2d 1511 (11th Cir.1983). Thedetermination of whether the aggravatingcircumstances outweigh the mitigatingcircumstances is not a numerical one, but insteadinvolves the gravity of the aggravation ascompared to the mitigation.'"Clisby v. State. 456 So.2d 99, 102(Ala.Cr.App.1983). We are convinced, afterreviewing the record in this case , that the trialcourt complied with the sentencing scheme ofAlabama's death penalty statute and that thesentence that it imposed, overriding the jury'sverdict, met constitutional requirements and wasnot arbitrary, discriminatory, or fundamentallyunfair."
Bush, 695 So.2d at 93-94.
Similarly, for the reasons set forth in this opinion,we conclude that the trial court complied with thesentencing requirements of Alabama's death penaltystatute in overriding the jury's verdict and insentencing the appellant to death. We further notethat, in its sentencing order, the trial courtspecifically explained its reasons for overriding thejury's advisory verdict. Therefore, the trial courtdid not improperly override the jury's unanimousrecommendation that the appellant be sentenced toimprisonment for life without the possibility ofparole for the capital conviction.
M.The appellant ' s nineteenth argument is that he isentitled to a new trial based on the cumulative effectof the above-alleged errors. However , we havereviewed those claims individually and have notfound any error. Likewise , we have consideredthose claims cumulatively , and we still do not findany error that requires a new trial . Thus, thiscontention is without merit.
XX.
Pursuant to § 13A-5-53, Ala.Code 1975, we mustaddress the propriety of the appellant's convictionand sentence of death. The appellant was indictedand convicted of capital murder because hecommitted the murder during the course of arobbery in the first degree. See § 13A-5-40(a)(2),Ala.Code 1975.
[92] The record does not indicate that the sentenceof death was imposed as a result of the influence ofpassion, prejudice, or any other arbitrary factor. §
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13A-5-53( 6)(I), Ala.Code 1975.
The trial court found that the aggravatingcircumstances . outweighed the mitigatingcircumstances . The trial court found *965 that theState proved two aggravating circumstances: 1) theappellant committed the capital offense while he oran accomplice was engaged in the commission of arobbery, § 13A- 5-49(4), Ala.Code 1975, and 2) theappellant committed the capital offense while hewas under sentence of imprisonment, §13A-5-49(1), Ala.Code 1975. The trial court foundthat there was one statutory mitigatingcircumstance--the appellant was 18 years old at thetime of the offense, § 13A-5-51(7), Ala.Code 1975.The trial court also found the followingnonstatutory mitigating circumstances: 1) theappellant voluntarily surrendered to the police; 2)the appellant did not attempt to evade his probationofficer once he had been declared delinquent; 3)the appellant was truthful to his mother and was notrouble at home; 4) the appellant was not violenttoward. his girlfriend; 5) the appellant, according tohis aunt, is a truthful person; and 6) the appellantexhibited remorse about the crime. The sentencingorder shows that the trial court weighed theaggravating and mitigating circumstances and, asset forth in Part IV of this opinion, carefullyconsidered the jury's advisory verdict. We concludethat the trial court's findings are supported by therecord and that it correctly sentenced the appellantto death.
[93] Section 13A-5-53(b)(2) requires us to weighthe aggravating and mitigating circumstancesindependently to determine the propriety of theappellant's sentence of death . After independentlyweighing the aggravating and mitigatingcircumstances , we find that the death sentence isappropriate.
[94] As required by § 13A-5-53(b)(3), we mustdetermine whether the appellant's sentence wasdisproportionate or excessive when compared to thepenalties imposed in similar cases . The appellantmurdered the victim during the course of a robberyin the first degree . Similar crimes are beingpunished by death throughout this state . Gaddy v.State. 698 So .2d 1100 (Ala.Cr.App.1995), affd,698 So .2d 1150 (Ala.), cert. denied, 522 U.S. 1032,118 S.Ct. 634, 139 L.Ed.2d 613 ( 1997); Bush v.State, 695 So .2d 70 (Ala.Cr.App.1995), affd, 695So.2d 138 (Ala.), cert. denied, 522 U.S. 969, 118
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S.Ct. 418, 139 L.Ed.2d 320 (1997); Payne v. State,683 So .2d 440 (Ala.Cr.App.1995), affil. 683 So.2d458 (Ala. 1996), cert . denied, 520 U.S. 1146, 117S.Ct. 1319, 137 L.Ed.2d 481 (1997); Windsor v.State. 683 So.2d 1027 (Ala.Cr.App.1994), affd,683 So.2d 1042 (Ala.1996), cert. denied, 520 U.S.1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997);Burton v. State, 651 So .2d 641 (AIa.Cr.App.1993 ),affd , 651 So.2d 659 (Ala.1994), cert. denied, 514U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995). Accordingly, we conclude that the sentence wasneither disproportionate nor excessive.
Finally, we have searched the entire record for anyerror that may have adversely affected theappellant's substantial rights, and we have not foundany. Rule 45A, Ala. R.App. P.
Accordingly, we affirm the appellant's convictionsand sentences as to both the capital offense and thetheft offense.
AFFIRMED.
LONG, P.J., and McMILLAN, COBB, and FRY,JJ., concur.
APPENDIX'Trial Court's Order Dated June 25, 1998
1. SYNOPSIS
Lefrick Moore (Moore) was shot and killed onApril 25, 1997, by Shonelle Jackson (Jackson).The motivation for the homicide was the theft of thestereo system from Moore's car. Jackson wasconvicted of the capital offense, and the juryrecommended that he be punished by imprisonment*966 for life without the possibility of parole.
Il. PROCEDURAL HISTORY
Jackson [FN I ] was indicted in a four-countindictment for (1) the capital murder of Mooreduring a robbery in the first degree, Ala. Code13A-5- 40(2); (2) the capital murder of Moorepursuant to § 13A-5-40(a)(17); (3) theft of anautomobile belonging to Ms. Lottie Flowers; and(4) an alternative count of receiving stolen propertyin the first degree (Ms. Flowers' automobile). Thecharge of capital murder pursuant to13A-5-40(a)(17) was dismissed before trial, and attrial, the State elected to proceed on the charge of
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theft of property in the first degree and the chargeof receiving stolen property was dismissed.
FN1. Antonio Barnes, Eric Williams andChristopher Rudolph were also indictedfor this capital offense. They testifiedagainst Jackson without any inducement bythe State. Each appeared to attempt tolessen their indivi4ual culpability and shiftblame to the other co-defendants. All hadan interest in casting Jackson as the leaderand prime culprit.
The jury returned verdicts of guilty of capitalmurder and theft of property in the first degree; andafter a separate sentencing hearing, the juryrecommended by a vote of 12-0 that Jackson bepunished by life imprisonment without thepossibility of parole.
III. THE VICTIM
Lefrick Moore was 23 years old, and he wasmarried and the father of one child.
IV. SUMMARY OF THE CRIME ANDJACKSON'S PARTICIPATION
The events which led to Moore's homicide startedApril 24, 1997, and were unrelated to Moore. Onthat evening , "Cocomo" slapped Jackson at anightclub. The next day, April 25, Jacksondetermined to look for Cocomo and the tendenciesof the evidence are that Jackson intended to doCocomo physical injury, should he be found.
Jackson did not have a car. He approachedAntonio Barnes about stealing a car for him. [FN2]Barnes readily agreed, and Barnes and Jacksonsolicited "Wendel" to drive them to BrookviewApartments, where Jackson and Barnes stole Ms.Flowers' car. Barnes actually broke into the car andJackson stood lookout.
FN2. The evidence established that Barnesis known as a car thief.
Jackson, Barnes, Eric Williams, and ChristopherRudolph then commenced the search for Cocomo.
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Jackson was armed with a .380 calibersemiautomatic pistol; Barnes was armed with a.357 magnum handgun; Rudolph was armed with a9 millimeter pistol; and Williams was armed with ashotgun. The search for Cocomo was futile;however, near the Smiley Court housingneighborhood, they saw Moore driving his car.Williams told the group that he was familiar withthe car and the driver, and that the car had goodmusic. Jackson then announced that "they" weregoing to rob the people in Moore's car. Theystalked Moore until the opportunity presented itselfto cut off Moore's car. Jackson passed Moore's carand cut in front of it to stop Moore. The carscollided and Jackson and Williams jumped out asMoore and the passenger in the car, GerardBurdette, were getting out. At this point, Jacksonand Williams fired their weapons. Before firing,however, Jackson said to Moore, "no need to run,motherfucker." [FN3] Jackson shot Moore, andMoore ran 100 to 150 yards, at which point *967 hecollapsed and died. Jackson drove to where Moorelay, and Jackson's purpose was to rifle throughMoore's pockets. [FN4] Barnes and Williams gotinto Moore's car and left the scene. They hid thecar, and Williams took the stereo from the car. Thenext day, Jackson wanted to strip the car, and he,Barnes and "Fido" went to where the car washidden; however, a Mr. Porterfield interruptedthem and they left without stripping the car. On thissame day, Williams told Jackson that Moore wasdead, to which Jackson replied, "I don't give a fuck,he didn't stay where we stayed at."
FN3. This statement is attributed toJackson by Eric Williams.
FN4. Id.
Jackson turned himself in - to the MontgomeryPolice Department after learning that he was wantedfor questioning. He gave three conflictingstatements to detectives. In the first statement hedenied any knowledge of the event. He later saidthat he was with Deon driving around looking forCocomo in a stolen car but had no involvement inthe murder. In the final statement he admitted thathe was at the scene and armed With a .380 pistol;however, he denied shooting Moore.
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V. AGGRAVATING CIRCUMSTANCES
The State argues that it proved two aggravatingcircumstances: (1) that the capital offense wascommitted while Jackson was engaged in or was anaccomplice in the commission of a robbery, §13A-5-49(4); and (2) that the capital offense wascommitted by a person under sentence ofimprisonment, § 13A-5-49(1). The Court finds thatthe State proved both aggravating circumstancesbeyond a reasonable doubt.
The § 13A-5-49(4) sentencing aggravatingcircumstance is the mirror of § 13A-5 -40(2) guilt"aggravator ," and when die . jury found Jacksonguilty of the capital offense, the jury found thesentencing aggravator beyond a reasonable doubt.The Court's independent examination of theevidence , as summarized in section [IV .], leads theCourt to hold that the jury's verdict in the guiltphase on this aggravator is highly reliable and theCourt independently finds that the State proved thiscircumstance beyond a reasonable doubt.
It is undisputed that when Jackson committed theoffense he was on probation on suspendedsentences for convictions of burglary in the seconddegree and theft of property in the first degree(CC-95-2147-EWR) and possession of marijuana inthe first degree (CC-95-2367-EWR).
VI. MITIGATING CIRCUMSTANCES
Jackson suggests one statutory mitigatingcircumstance ; he was 18 years old at the time of theoffense. § 13A-5-51(7). He suggests twononstatutory mitigating circumstances: ( 1) that hevoluntarily surrendered to the police ; and (2 ) that hedid not evade or resist arrest and he did not avoidhis probation officer after he was declared adelinquent probationer.
a. Statutory Mitigating Circumstances
The Court finds that Jackson has a significanthistory or prior criminal activity. [FNS]
FN5. His juvenile record is not a matter toconsider when determining whether thecircumstance exists. Freeman V. State,651 So.2d 576 (Ala.Crim.App.1994).Jackson has three prior felony convictions.
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Windsor v. State. 633 So.2d 1027(Ala.Crim.App.1904), atfd, Ex parteWindsor. 683 So.2d 1042 (Ala.1996).
The Court finds that the capital offense was notcommitted while Jackson was under the influence ofextreme mental or emotional disturbance. There isno evidence that Jackson suffered any mental illnessor mental instability or that his *968 actions weremotivated by anything other than his desire tocommit the theft of the stereo from Moore'sautomobile.
The Court finds that Moore was not a participant inJackson's conduct and the Court finds that Mooredid not consent to Jackson's conduct. No evidencesupports this circumstance.
The Court finds that the Defendant was not anaccomplice in the capital offense committed byanother and the Court finds that his participationwas not relatively minor; to the contrary , Jacksonwas the ringleader in this offense, and there isevidence that he was the shooter. [FN6]
FN6. There is also evidence that suggeststhat Barnes, not Jackson, fired the shot thatkilled Moore. See infra.
The court finds that Jackson did not act underextreme duress or under the substantial dominationof another person. There is no evidence of anyform of duress and, as stated above, Jackson wasthe ringleader.
The Court finds that there is no evidence whichsuggests that Jackson lacked the capacity toappreciate the criminality of his conduct, and thereis no evidence that he lacked the ability to conformhis conduct to the requirements of law.
Jackson was 18 years old at the time of thecommission of this offense. The Court finds thathis age is a mitigating circumstance, but it is dueslight weight for the reasons stated below.
When considering the weight to be given toJackson 's age as a mitigating factor, this case isquite similar to Shellito v. State, 701 So.2d 837(Fla. 1997).
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At the time of the homicide , Jackson was 6 feettall, weighed 175 pounds and was within 35 days ofbeing 19 years old. He is now 20 years old. At thetime of the offense he apparently was, and he is, aphysically mature adult . The victim was 23 yearsold.
Jackson 's criminal record started at age 12 injuvenile court . He was arrested eight times as ajuvenile , and he was adjudicated guilty of fourfelonies (burglary in the third degree , theft ofproperty in the second degree, robbery in the firstdegree, and robbery in the first degree ), and he wascommitted to the Department of Youth Services onadjudications for assault in the. third degree and twocharges of robbery in the first degree . At age 17 hewas waived from the juvenile court to adult courtfor prosecution on charges of burglary in the seconddegree , theft of property in the first degree, andpossession of marijuana in the first degree.
Jackson 's combined criminal record shows that hehas been arrested 13 times and he has been chargedwith 14 separate crimes --five of which are felonies.Two of the felonies and one misdemeanor (assaultin the third degree ) are violent crimes . He was onprobation for three felonies at the time hecommitted the homicide . He is the father of athree -month-old child . According to the presentencereport , he was a daily user of marijuana since age14 and a regular consumer of alcohol . He does notconsider his marijuana use or his alcoholconsumption a problem.
Jackson's age is a marginal mitigatingcircumstance . Shellito at 843.
b. Nonstatutory Mitigating Circumstancesi. General
The Court finds as a mitigating circumstance thatJackson voluntarily surrendered to the police;however, this mitigating circumstance receivesslight weight *969 inasmuch as Jackson denied anyresponsibility in this matter and attempted to avoidall responsibility.
The Court finds that it is a mitigating circumstancethat Jackson did not attempt to evade his probationofficer once he had been declared delinquent. But,the Court gives this mitigating circumstance littleweight inasmuch as the delinquent charge orcharges did not grow out of the incident involving
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Moore; rather , they grew out of other violations ofhis probation.
The Court finds as a mitigating circumstance thatJackson was truthful to his mother and was notrouble at home; however , she further testified thathe had no violent tendencies and he had only minorscrapes with the law . In view of his juvenile recordand his adult criminal record , either Ms. Jacksonwas mistaken or her testimony was colored by hermotherly love and motherly instincts . The recordreflects that Jackson in fact has violent tendenciesas exhibited by two juvenile adjudications forrobbery in the first degree and an adjudication forassault in the third degree , and it can hardly be saidthat his involvement with the law was minor.Therefore , the Court gives little weight to thismitigating circumstance.
The Court finds as a mitigating circumstance thatJackson was not violent toward his girlfriend, andthat, according to his aunt, he is a truthful person.However, in view of his overall criminal history andhis apparent untruthful statements to police officers,the Court gives these circumstances slight weight.
The Court has examined the record for otherevidence of non-statutory mitigating circumstances.In this regard, the court has examined Jackson'sstatement in the presentence report. His statementdoes exhibit remorse; however, it appears to theCourt that just as Jackson did in his statements tothe police, he is still attempting to avoidresponsibility for this offense; and in view of hiscriminal history the Court has a legitimate basis todoubt and the Court does doubt the bona fides ofhis expressed remorse.
ii. The Advisory Verdict
Section 13A -5-47(e) requires that the Courtconsider the advisory verdict in determiningJackson's sentence . Whether the advisory verdict oflife imprisonment without the possibility of paroleis considered a mitigating circumstance is anunsettled issue . See Lewis v. State, 398 So.2d 432(Fla.1981 )(jury recommendation of life withoutparole is considered a mitigating circumstance).But Ed Carnes (now Judge Ed Carnes of theEleventh Federal Judicial Circuit ) opined in 1981that the life recommendation is not a mitigatingcircumstance . E. Carnes , Alabama's 1981 CapitalPunishment Statute, 42 Ala . Law. 456 , 490 n. 37
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(July 1981). The court is not cited to any Alabamacase that speaks to this issue.
The death acts of Alabama, Florida, and Indianaallow the sentencer--the trial judge--to override ornot accept the advisory verdict; however, unlike thestates of Florida and Indiana, neither the AlabamaDeath Act nor Alabama case authority informs thetrial court how it is to consider the advisory verdict.[FN7]
FN7. The holding in Roark v. State, 644N.E.2d 565 (Ind.1994), reh'g denied, ---N.E.2d ---- (Ind. 1995), );e some extent, andto a greater extent the holding in Tedder v.State, 322 So.2d 908 (Fla.1975), directtrial judges' consideration of the advisoryverdicts in those states. Indiana requiresthat "at the point of final decision the[trial] court reflect upon the juryrecommendation against imposing death."Roark at 570. However, the appellatecourt's independent review when the juryhas recommended life and the trial judgesentences to death is guided by thestandard of Martine-- ChaveF v. State. 539N.E.2d 4, 5 (Ind.1989), which requires thatbefore the death sentence is affirmed "itmust appear ... [to the court] that all thefacts available in the record point soclearly to the imposition of the deathpenalty that the jury's recommendation isunreasonable ." Roark at 571 . It is notunreasonable to consider that an Indianatrial court judge may impose this standardsub silentio. Before a Florida trial judgecan override the jury's life verdict, "thefacts suggesting a sentence of death shouldbe so clear and convincing that noreasonable person could differ." Tedder at910. Thus far Judge Colquitt's expectationthat "Alabama appellate courts canreasonably be expected to develop andapply restrictions to a trial judge's power toreflect a sentence recommended by a jury"has not been realized . J.A. Colquitt, TheDeath Penalty Laws of Alabama, 33Ala.L.Rev. 213, 328 (1982).
When considering the advisory verdict the Courtconsidered two approaches: (1) *970 to compare
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this case to other similar reported cases; and (2) totest the reliability of the advisory verdict. TheCourt initially determined that it was moreappropriate to compare similar cases because theCourt thought that this case could be approximatelymeasured against a standard, and to this end theCourt required counsel to inform the Court of thesentences in other similar cases. However, in thefinal analysis, this method did not prove entirelysatisfactory because sentencing is ultimately judgedone and what intrinsically drives the sentence isnever truly discernable. The State has profferedfive cases for the Court's consideration: Lynn v.State, 477 So.2d 1365 (Ala.Crim.App.1984); Hartv. State, 612 So.2d 520 (Ala.Crim.App.1992); Carrv. State, 640 So.2d 1064 (Ala.Crim.App.1994);DeBruce V. State. 651 So.2d 599(Ala.Crim.App.1993); Cothren v. State, 705 So-2d849 (Ala.Crim App. 1997). The Court has read andconsidered each case, and although none is identicalto the case sub judice. each contains some parallelsand the Court is satisfied that taken together theyoffer a sufficient basis to compare against thesentencing verdict delivered by the jury in this case.
The Court has not ignored the response of thedefense. The Court does not accept as controllingthe oft-repeated statistic that "approximately two-thirds of death penalty cases in Alabama are resultof murder during the course of a robbery." Guthriev. State, 689 So.2d 948, 949 (Ala.Crim.App.1996).The defense makes a point that the appellate courtsdo not refer to the cases in which .the death penaltyis not imposed. The defense appears to argue thatthe analysis is not case-specific, which it suggests isconstitutionally required to determine whether thereis true proportionality in death sentencing . Whetherthis is correct as a matter of law is not an issue forthis Court to answer.
Having considered the advisory verdict and thecases proffered by the State, the court concludesthat a verdict of death in this case would not bedisproportionate or excessive when consideredagainst the cases cited above. [FN8]
FN8. The approach would be a neater fit ifthe jury had returned an advisory verdictrecommending death.
The alternative approach to complying with the
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statutory mandate that the Court "consider" theadvisory verdict is for the Court to test thereliability of the advisory verdict. To effectivelyutilize this approach, the Court should presume thatthe sentencing verdict was not driven by or partiallya product of the guilt-phase verdict. [FN9]However, as will be pointed out *971 below, theapproach is less satisfactory than the comparisonapproach.
FN9. The Court is not convinced thatindulging in this presumption is realistic.The jury deliberated for 35 minutes beforereturning its advisory verdict. As observedby Judge James L. Clement in State ofIndiana v. Dennis R. Roark, Cause No.45G04-8902-CF-00017 (Lake CountyIndiana Superior Court, Criminal Division,October 29, 1992):"In the death penalty or sentencing state ofthis trial, the jury deliberated onlythirty-five to forty minutes before returninga recommendation that the death penaltynot be imposed . I am not suggesting thistime of deliberation is a significant factorin my decision, but one has to wonderwhether the jury had time to carefullyevaluate and balance the aggravating andmitigating circumstances presented tothem. Roark at 6."Of course, it is understandable for a capitaljuror to retort, as noted by ProfessorMichel Mello: "If [the trial judge] wasn'tgoing to follow our sentencing verdict,why did he ask us for our opinion in thefirst place?" M. Mello, The Jurisdiction todo Justice: Florida's Jung Override andThe State Constitution, 18 U. Fla. St.L.Rev. 923, 927 (1991).
When considering the jury's recommendation, theCourt is aware that attempting to explore theobjective basis for the verdict may lead it intoexploring the subjective basis for the verdict, andthis would lead the Court down a slippery judicialslope. Therefore, the Court has consciouslyattempted to consider only the explanations basedon the facts and inferences of fact which could havebeen reasonably determined by the jury.
Before the analysis is undertaken, it is necessary to
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set out evidence before, the jury that was notproduced by testimony, and that is the statement ofGerard Burdette, the passenger in Moore's car. Awritten transcript of this statement to police was putinto evidence and provided to the jury in lieu of histestimony, because Burdette could not be located atthe time of trial.
According to Burdette, he was very "tight" withMoore. Transcript, unnumbered p. 9, question 4and answer. Therefore, die Court presumes hisstatement would be favorable to Moore. Hisstatement, not surprisingly, varies from thetestimony given by Barnes, Williams, and Rudolph.
Burdette's version of the event is "Got out theywindow and pointed - they gun, and told us, say,'Don't move.' ... And at first they shot out thewindow when they got out the window.... Then wegot out and ran , and they just kept shooting." Hesaid there were at least three people in the other car,maybe four; and he saw a black long .38 or maybe.357. "1 think it was a .38 though, brown handle."One of the people in Jackson's car (the chubby one)he had seen the day before. Transcript, p. 7.
Burdette did not identify anyone with a .380automatic, and he did not specifically enumeratehow many people fired shots. He said he heard fourto five shots (p. 8), and because he said he saw twopersons with weapons, it could be reasonablyinferred that the one or both fired. This latter point.is consistent with the trial testimony. However,according to Burdette, and the medical examiner'sopinion of the type bullet that killed Moore, theperson with the .38 or .357 would have fired thefatal shot. That person was Barnes, assuming thetestimony can be reconciled, because the evidencefrom Barnes and Williams is that Barnes had a .357.
When the Court takes Burdette's testimony intoaccount, there are several explanations for theadvisory verdict. First, the jury could have beenswayed by the pleas for mercy that were made byJackson's family members and his aunt. Secondly,the jury could have concluded that all codefendantswere equally culpable, and although thecodefendants testified they were not offeredleniency by the State, the *972 jury may haveconcluded that they would ultimately be treateddifferently by the State and the Court. In short, thejury may have reasoned that the State would notseek the death penalty against the codefendants so
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why should the jury return a death verdict in thiscase. Of course, this is a subjective evaluation of theverdict. Third, based on Burdette 's version of theevents the jury could have determined that Barnesfired the fatal shot. Fourth, keeping their oath thejury concluded that the mitigating circumstancesoutweighed the aggravating circumstances.
This kind of analysis fails in the end because thetrial judge is always privy to more factual and legalinformation than the jury. For instance, the Courthas the benefit of 1) a presentence investigation; 2)additional evidence from the final sentencinghearing (§§' 13A-5-47); and 3 ) legal information inthe form of appellate decisions to guide itsjudgment. With respect to legal information, theCourt notes that the jury is not told that there arereported cases that hold that three felonyconvictions can outweigh the 13A-5-51(l)mitigating factor, or that other courts in similarcircumstances have found that a defendant's age of18 at the time of the offense is not entitled to greatweight, or that residual doubt is not a properconsideration in determining the verdict. [FN 10]
FNIO. Indeed, all guilt-phase evidence isintroduced at the sentencing phase of thetrial and the jury is instructed to considerthis evidence.
The Court has reread its sentencing charge to thejury and it has noted its prejury selectionexplanation to the venire concerning the proceduresin a capital case. The Court has also noted theclosing arguments of the attorneys in the sentencingphase of the trial. The Court took pains toemphasize the importance of the sentencing verdictand, in fact, instructed the jury that the jurors were"to assume that what you decide will be thesentence imposed ." The Court notes the State didnot argue that the verdict was advisory. Therefore,I conclude that the jury was not led to believe thatits verdict had lessened importance or did not count.
In the final analysis the Court concludes that theresult from the attempt to determine the reliabilityof the advisory verdict is so uncertain that it is nothelpful; and it is unwilling to conclude that the jurydeparted from its instructions in rendering itsverdict. Without some concrete direction from anappellate court , the final conclusion is that the
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essential function of the advisory verdict is to focusthe court in its independent consideration ofweighing the aggravating circumstances andweighing the mitigating circumstances, andweighing them against each other.
A clinical judicial evaluation of all thecircumstances as enumerated in §§ V and VI(a) and(b) and weighing the aggravating circumstances andweighing them against the mitigating circumstances,and considering these matters with the 12-0 verdictin the forefront of the Court' s deliberations, theCourt finds that the two aggravating circumstancesoutweigh the mitigating circumstances. Theappropriate sentence in this case is death.
VII. CONCLUSION
Based on the foregoing findings, it is the judgmentof the Court that Shonelle Andre Jackson bepunished by death as provided by Ala.Code §15-18-80,- 81 and -82.
836 So.2d 915
END OF DOCUMENT
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Supreme Court of Alabama.
Ex parte Shonelle JACKSON.(In re Shonelle Jackson
V.State of Alabama).
1981723.
May 10, 2002.
After jury trial, defendant was convicted in theMontgomery Circuit Court, No. CC-97-2300,William R . Gordon and Tracy S. McCooey, JJ., ofcapital murder and first-degree theft of property.Defendant appealed. The Court of CriminalAppeals, 836 So .2d 915, affinmed . On grant ofcertiorari , the Supreme Court, 836 So.2d 973,remanded . On overruling of rehearing and on returnfrom remand , the Supreme Court held that: (1)police officer's false statement to defendant did notrender defendant 's statement involuntary; (2)exclusion of evidence that murder victim wasinvolved in drug activity was proper; and (3) trialcourt's overriding of jury's recommendation of lifeimprisonment and imposition of death penalty wasproper.
Affirmed.
Johnstone, J., concurred in part, concurred in theresult in part, and dissented in part as to the opinionand dissented from the denial of rehearing, withopinion.
Lyons, J., concurred in part, dissented in part as tothe rationale and dissented from the judgment anddissented from the denial of rehearing, with opinion.
West Headnotes
111 Criminal Law 4=412.1(4)110k412.1(4) Most Cited Cases
Police officer's false statement to defendant that
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fast-food restaurant cup had been found in vehiclecodefendant had been driving with defendant'sfingerprints on it did not render defendant'sstatement admitting he had been with othercodefendants at time of murder involuntary, whereofficer lied to defendant to find out whetherdefendant had relationship with other codefendants,and defendant was not threatened or coerced intogiving statement.
121 Criminal Law €1144.1211 Ok 1144.12 Most Cited Cases
In reviewing the correctness of the trial court'sruling on a motion to suppress, the Supreme Courtmakes all the reasonable inferences and credibilitychoices supportive of the decision of the trial court.
131 Criminal Law X1158(4)1 lOk1158(4) Most Cited Cases
The trial court's ruling on a motion to suppress willnot be disturbed unless it is palpably contrary to thegreat weight of the evidence.
[4J Criminal Law X412.1(1)I l Ok412.1(1) Most Cited Cases
141 Criminal Law X695.5110k695.5 Most Cited Cases
Extrajudicial statements are prima facie involuntaryand inadmissible; the duty rests on the trial court todetermine whether the statement is voluntary, andunless it appears that it is voluntary it should not beadmitted.
[51 Criminal Law € 414110k414 Most Cited Cases
The burden is on the state to show voluntariness anda Miranda predicate before an extrajudicialstatement can be admitted into evidence.
161 Criminal Law 4=412.2(5)110k412.2(5) Most Cited Cases
Whether a Miranda waiver is voluntary, knowing,
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and intelligent depends on the particular facts andunderlying circumstances of each case, includingthe background, experience, and conduct of theaccused.
[71 Criminal Law €412(4)I10k412(4) Most Cited Cases
171 Criminal Law €695,5I I Ok695.5 Most Cited Cases
The voluntariness of an inculpatory statementremains undetermined until the trial court hasexamined the totality of the circumstancessurrounding the statement.
[81 Criminal Law X414110k414 Most Cited Cases
The trial court's finding that a statement wasvoluntary need only be supported by apreponderance of the evidence.
191 Criminal Law X412.1(1)I 10k412.1(1) Most Cited Cases
191 Criminal Law C=520(1)I10k520(1) Most Cited Cases
191 Criminal Law X522(1)110k522(1) Most Cited Cases
The test for the voluntariness of an extrajudicialconfession or an inculpatory statement is whether,in light of all the surrounding circumstances, thestatement was free from inducement, threat, orpromise, either expressed or implied, that wouldhave produced in the mind of the accused any fearof harm or hope of favor.
1101 Homicide €997203k997 Most Cited Cases(Formerly 203k 163(2))
Exclusion of evidence that murder victim wasinvolved in drug activity was proper, where neitherdefendant nor codefendants mentioned drug dealgone bad in statements to police, and passenger inautomobile with victim at time of murder did notmention that murder was related to drug activity.
1111 Criminal Law €632(4)110k632(4) Most Cited Cases
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A motion in limine is the proper method by whichto prohibit the introduction of irrelevant evidence.
[121 Criminal Law €632(4)110k632(4) Most Cited Cases
(12] Criminal Law x'1153(1)11Ok1153(1) Most Cited Cases
The decision to grant or deny a motion in liminerests within the sound discretion of the trial courtand will not be overturned on appeal absent anabuse of discretion.
[131 Criminal Law C-338(1)I I0k338(l) Most Cited Cases
The test for relevancy is whether the evidence bearsany logical relationship to the ultimate inference forwhich it is offered.
1141 Sentencing and Punishment X1784(3)350Hk1784(3) Most Cited Cases
Trial court's overriding of jury's recommendation oflife imprisonment and imposition of death penaltywas proper , where in determining sentence trialcourt considered all available evidence, heardarguments on aggravating circumstances , includingfact that offense was committed while defendantwas engaged in robbery or attempted robbery, andthat defendant was under sentence of imprisonmentwhen offense was committed, and mitigatingcircumstances , including fact that defendant wasonly 18 years old, and entered findings, there wasno evidence in record indicating that bias, passion,or prejudice were factors in trial court's imposingdeath sentence , and trial court provided detailedanalysis of its consideration of jury'srecommendation of sentence of life imprisonmentand reasons it rejected that recommendation andsentenced defendant to death . Code 1975, §13A-5-53.
1151 Sentencing and Punishment C-329350Hk329 Most Cited Cases
The decision whether a particular mitigatingcircumstance is proven and the weight to be given itrests with the judge and the jury.
116] Sentencing and Punishment C-1789(10)350Hk 1789(10) Most Cited Cases
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Reinstatement of a jury recommendation of lifeimprisonment without parole is appropriate in thosecircumstances where the trial court has overriddenthe jury's recommendation based on bias , passion,or prejudice , a defective weighing of aggravating ormitigating circumstances , or disproportionateseverity of the sentence under all of thecircumstances . Code 1975, § 13A- 5-53(b).*981 Bryan A. Stevenson and Randall S. Susskind,of Equal Justice Initiative of Alabama,Montgomery , for petitioner.
Bill Pryor, atty, gen., and Kathryn D. Anderson andAnne C. Adams, asst. attys. gen., for respondent.
PER CURIAM.
The opinion of February 15, 2002, is withdrawnand the following is substituted therefor.
Shonelle Jackson was convicted of murder madecapital because the killing occurred during thecommission of a robbery in the first degree, see §13A- 5-40(a)(2), Ala.Code 1975; he was sentencedto death on that conviction . He was also convictedof first-degree theft of property, see § 13A-8-3,Ala.Code 1975, and on that conviction he wassentenced to life imprisonment as an habitualoffender with three prior felony convictions, see §13A-5- 9(c)(2), Ala.Code 1975. The Court ofCriminal Appeals affirmed both convictions andsentences . See Jackson v. State, 836 So.2d 915(Ala.Crim.App.1999). This Court granted certiorarireview , see Rule 39 (c), Ala.R.App.P., as it readbefore it was amended effective May 19, 2000,[FN I ] and remanded the case to the Court ofCriminal
FNI. Rule 39, Ala.R.App.P., was amendedeffective May 19, 2000, as todeath-penalty cases..The amendment removes the provision in
the former Rule 39(c) that provided that apetition for a writ of certiorari to theSupreme Court in a case in which the deathpenalty was imposed would be granted as amatter of right. With this amendment,review of death-penalty cases will be at thediscretion of the Supreme Court. TheSupreme Court retains the authority to
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notice any plain error or defect in the-proceedings under review in those cases.""Court Comment to Amendment to Rule 39, effective May 19, 2000, as todeath-penalty cases, etc." Ala.R.App.P.
*982 Appeals for that court to remand the case forthe trial court to conduct a hearing outside thepresence of the jury to determine the admissibilityof Jackson's inculpatory statement . Er parseJackson. 836 So.2d 973 (Ala.2001). We instructedthe Court of Criminal Appeals to forward the trialcourt's return to this Court. It appears that the trialcourt has complied with our directions and hasconducted a hearing to determine the admissibilityof Jackson's statement.
1.[1][2][3] Jackson contends that the trial court erredin denying his motion to suppress a statement hemade to a law-enforcement officer because, he says,the officer tricked him into making the statement. "'In reviewing the correctness of the trial court'sruling on a motion to suppress, this Court makes allthe reasonable inferences and credibility choicessupportive of the decision of the trial court.' "Kennedy v. State, 640 So.2d 22, 26(Ala.Crim.App.1993), quoting Bradlev v. State, 494So.2d 750, 760-61 (Ala.Crim.App.1985), affd, 494So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923,107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). The trialcourt's ruling on a motion to suppress will not bedisturbed unless it is palpably contrary to the greatweight of the evidence. See Dixon v. State, 588So.2d 903 (Ala.1991); Parker v. State, 587 So.2d1072, 1088 (Ala_Crim.App.1991); Rutledge v. State.680 So.2d 997, 1002 (Ala.Crim.App.1996); andMaples v. State, 758 So.2d I (Ala.Crim.App.1999),affd, 758 So.2d 81 (Ala.1999), cert. denied, 531U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000).
[4][5][6][7] Extrajudicial statements are primafacie involuntary and inadmissible; the duty restson the trial court to determine whether the statementis voluntary, and unless it appears that it isvoluntary it should not be admitted. See Farrior v.State, 728 So.2d 691 (Ala.Crirn.App.1998). Theburden is on the State to show voluntariness and aMiranda [FN2] predicate before such a statementcan be admitted into evidence. See Lewis v. State,535 So.2d 228 (Ala.Crim.App.1988). "Whether awaiver is voluntary, knowing, and intelligent
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depends on the particular facts and underlyingcircumstances of each case, including thebackground, experience, and conduct of theaccused--i.e., the totality of the circumstances."Click v. State, 695 So.2d 209, 218(Ala.Crim.App.1996). The voluntariness of aninculpatory statement remains undetermined untilthe trial court has examined the totality of thecircumstances surrounding the statement. See Erparse Hill. 557 So.2d 838, 841 (Ala.1989).
FN2. Miranda v. Arizona, 384 U.S. 436,86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[8][9] The trial court's finding that a statement wasvoluntary need only be supported by apreponderance of the evidence. Dixon v. State,supra. The test for the voluntariness of anextrajudicial confession or an inculpatory statementis whether, in. light of all the surroundingcircumstances , the statement was free frominducement, threat, or promise, either expressed or*983 implied, that would have produced in the mindof the accused any fear of harm or hope of favor.Ex parte Price, 725 So.2d 1063 (Ala.1998), cert.denied, 526 U.S. 1133, 119 S.Ct. 1809, 143L.Ed.2d 1012 (1999).
Moreover, "more subtle forms of psychologicalmanipulation, such as trickery or deception by thepolice, have not been considered sufficientlycoercive, standing alone , to render a confession orincriminating statement involuntary." Ex parte Hill.557 Sold at 841.
The trial court submitted the following order onreturn to remand:
"On August 31, 2001, the Alabama Court ofCriminal Appeals remanded this case to the trialcourt to conduct proceedings consistent with theOpinion as written and released by the AlabamaSupreme Court on May 18, 2001. The AlabamaSupreme Court [had] remanded this case to theAlabama Court of Criminal Appeals with theinstructions to order the trial court to conduct ahearing to determine the admissibility ofDefendant Jackson' s extrajudicial statement. Thetrial court appointed the Honorable Bryan A.Stevenson to represent the defendant at thehearing, which was conducted on October 24,2001. At the hearing, the defendant was
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represented by Mr. Stevenson, as well as theHonorable Randall Susskind, both of the EqualJustice Initiative of Alabama. The State ofAlabama was represented by the HonorableSusan Redmond, Chief Deputy District Attorneyfor Montgomery County. After hearing thetestimony and accepting exhibits introduced intoevidence, this Court advised the parties that theywould have 7 days in which to present anyMemorandum of Law supporting their respectivepositions. Defense counsel submitted aMemorandum of Law on November 2, 2001, andthis Court has reviewed the same."The State of Alabama called its first and onlywitness, Detective A.J. Signore, of theMontgomery Police Department. DetectiveSignore testified that he had been employed withthe Montgomery Police Department for 10 years,and in 1997, had been a homicide investigator.Pursuant to this case, Detective Signore testifiedthat the defendant's mother signed a 'consent tosearch' her home wherein detectives confiscatedcertain items, including .380-caliber bullets. Thedetectives, before leaving the defendant'smother's home, told the mother that if thedefendant came home she was to notify [them]that the police would like to talk to him. Laterthat afternoon, the defendant went to policeheadquarters to talk to the detectives. At thehearing , Detective Signore testified that thedefendant, who was 18 years old at the time,reported to the police headquarters whereDetective Signore and his partner, Detective C.D.Phillips, were on duty. Detective Signoretestified that the defendant was read his Mirandarights, after which he signed the waiver formindicating that he understood his rights, that hehad not been promised anything or threatened inany way and that he wished to give a statement tothe police. The defendant's statement was takenin Detective Signore's office at the MontgomeryPolice Department with Detective Phillips alsopresent.*"Initially, the defendant denied even knowing thethree other codefendants that were involved in theshooting. Detective Signore testified at thehearing that he had statements from the 3codefendants stating that all 3 of them knew thedefendant and that the defendant had beeninvolved in the shooting. Detective *984 Signorestated that in order to get the defendant to tell thetruth about his relationship with the other 3codefendants, he told the defendant that a Dairy
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Queen [fast-food restaurant] cup had been foundin the vehicle with the defendant's fingerprints onit. After Detective Signore told the defendant thisinformation, the defendant then told DetectiveSignore that, in fact, he did know the othercodefendants, but denied any involvement in theshooting. After telling Detective Signore that heknew the other codefendants, he asked thedetective if he could make another statement. Inhis second statement, Defendant Jacksonadmitted to having been with the othercodefendants at the time of the murder and topossessing a.380 automatic pistol."The defense called Ms. Rosalyn Jordan as itsfirst witness. Ms. Jordan is a, sixth-grade teacherat Patterson Elementary School. She testified thatthe defendant had been a student in her classroomand her records indicated that he had failed thefirst and third grades. She stated that thedefendant was a low-achiever and that he was 13years old in the sixth-grade. She also stated thatshe had only seen the defendant a few times sincehe had been a sixth- grader in her class. Thedefense also called Ms . Thelma Owens, who is anemployee at the Southern Poverty Law Center.She is related to the defendant, as his aunt, andshe stated that she helped to raise him. She wenton to state that the defendant was very respectfulof her and any type of authority figures."There was absolutely no question that DetectiveSignore lied to the defendant about thefingerprints on the Dairy Queen cup. It isimportant to recognize, however, that the lie wastold by Detective Signore only in order to findout if the defendant did, in fact, have arelationship with the other codefendants. The liewas not told to induce the defendant to confess[to] a crime . Alabama Courts have repeatedlyheld that a confession is not inadmissible merelybecause it was induced by a trick ormisrepresentation. As defense counsel pointedout in its Memorandum of Law, although policedeception is not conclusive as to the voluntarinessof a statement, it is certainly a factor to beconsidered in the determination of itsvoluntariness. See Frazier v. Cupp, 394 U.S.731f, 89 S.Ct. 1420, 22 L.Ed.2d 684] (1969).This Court would again note, however, that thedeception used in this case was not deception thatled to a confession to the actual crime. Thedeception or misrepresentation used by DetectiveSignore was only used in order to establishwhether or not a relationship existed between the
Page 5
defendant and codefendants. After the statementwas made concerning 'the fingerprints on theDairy Queen cup, Defendant Jackson admittedonly to knowing the codefendants, but denied anyinvolvement in the actual crime."This Court must look at the totality of thecircumstances in analyzing whether or not thedefendant's extrajudicial statement was voluntaryor not. The Court is convinced, after conductingthe hearing, that the defendant did, in fact,voluntarily come to the police station and, afterbeing read his Miranda rights and signing hiswaiver, he agreed to talk to the detectives. Therewas no testimony and/or evidence presented thatwould indicate that the defendant could notknowingly and voluntarily waive his rights andagree to talk with the detectives. There was alsonothing unusual or extraordinary about the roomin which the statement was taken, or the mannerin which the statement was obtained. As JusticeStuart so ably stated *985 in her dissent [to theSupreme Court's opinion of May 18, 20011, thereis no question that Detective Signore mademisrepresentations concerning the fingerprintsfound on the Dairy Queen cup; however, whetheror not the misrepresentations render a statementinvoluntary is a question of law and does notrequire the gathering of additional facts in orderto make a decision. This trial court, however, hasconducted the hearing as ordered by the majorityand would point out that no new information orfacts were gleaned from this hearing and thiscourt finds that, after examining the totality of thecircumstances surrounding the statement of thedefendant, said statement was made voluntarilyand is therefore admissible.
FN" * Detective Signore's office in whichthe defendant's statement was taken is anormal detective office containing a deskand two chairs positioned facing the desk.Defense counsel went into very elaboratedetails about the office in its Memorandumof Law trying to show that the room wouldimply that the statement was not voluntary.
The Court - found nothing unusual,deceptive, or coercive about the room inwhich defendant' s statement was taken atMontgomery Police DepartmentHeadquarters."
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The trial court's findings are adequately supportedby the record. We have carefully reviewed therecord on return to remand to determine whetherJackson voluntarily and knowingly waived hisMiranda rights before making the inculpatorystatement to the police and whether the statementwas voluntary. After considering the totality of thecircumstances surrounding Jackson's statement, weconclude that the State met its burden in provingthat Jackson voluntarily and knowingly waived hisMiranda rights and that he made his statementvoluntarily. The record does not reveal thatJackson was threatened or coerced into giving astatement. The weight and preponderance of theevidence support the trial court's decision to denythe motion to suppress. Therefore, the trial court didnot err in denying the motion to suppress Jackson'sstatement.
II.
In his brief to this Court, Jackson raises severaladditional issues , which include subissues, forreview , all of which were argued in the Court ofCriminal Appeals and were thoroughly addressedby that court. We have carefully reviewed all theissues raised by Jackson and we will address thefollowing two issues, which were specificallyaddressed by Jackson's counsel at oral argumentbefore this Court:
1. Whether the trial court erred in granting theState's motion in limine , preventing him, Jacksonargues, from presenting motive evidence; and2. Whether the trial court erred in overriding theunanimous jury recommendation of lifeimprisonment without the possibility of paroleand sentencing Jackson to death.
A.
[10] Jackson contends that the trial court erred ingranting the State's motion in limine because, hesays, its doing so improperly prevented him frompresenting evidence that the motive for the murderwas retaliation for a drug deal that had gone "bad,"not robbery as the State alleged. He argues that bygranting the State's motion, the trial court prevented.him from testifying, from cross- examiningwitnesses, and from presenting mitigation evidence.
[11][12][13] A motion in limine is the propermethod by which to prohibit the introduction ofirrelevant evidence. Wiley v. State, 516 So.2d 812,
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814 (Ala.Crim.App.1986)T rev'd on other grounds,516 So.2d 816 (Ala.1987). The decision to grant ordeny such a motion rests within the sound discretionof the trial court and that decision *986 will not beoverturned on appeal absent an abuse of discretion.Id The test for relevancy is whether the evidence"bears any logical relationship to the ultimateinference for which it is offered." Aetna Life Ins.Co. v. Lavoie, 470 So.2d 1060, 1078 (Ala.1984);see also C. Gamble, McElroy's Alabama Evidence §21.01(1) (5th ed.1996); Garner v. State, 606 So.2d177 (Ala.Crim.App.1992).
The State filed a pretrial motion in liminerequesting that Jackson be prevented frompresenting evidence that the victim was involved indrug activity, because, it argued, such evidence wasimmaterial and irrelevant to the case. In response,Jackson argued that the victim's drug activity wentto the reason for the confrontation between Jackson,his codefendants, and the victim and that evidenceof that activity was, therefore, relevant. Afterholding a hearing on the motion, the trial courtgranted the State's motion. On the day of trial,Jackson's counsel asked the court to reconsider itsruling because Jackson might decide to testify. Thetrial court indicated that it would reconsider itsruling if Jackson decided to testify. [FN3) Jacksondid not testify, and his counsel did not raise theissue again and did not later ask the court toreconsider its ruling. Because the trial court statedthat it would reconsider its ruling, the ruling on themotion in limine was not a final order and the issuewas not preserved : for appeal. See Perry v.Brakefteld, 534 So.2d 602 (Ala.1988); Evans' V.Fruehauf Corp., 647 So.2d 718 (Ala.1994).Therefore, we review this issue under theplain-error rule. Rule 45A, Ala.R.App.P.
FN3. The following colloquy occurred:"[Defense counsel]: Judge, we would askthe Court to reconsider the ruling on themotion in limine and at least withholdruling until maybe the sentencing phase.Our client--we have not made a decision asto whether we are going to allow our clientto testify or not. His testimony, if he doestestify, will be diametrically opposed to thefacts--underlying facts as the districtattorney had presented them, which createsa conflict and a jury question. Histestimony deals with a drug deal. I don't
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want to be put in a situation where we can'task our client questions about what reallyhappened in this case. We would belimited, to have his testimony limited.THE COURT: Well, you know, that's the
first I have heard of that, for the record.It's not a criticism . It's just for the record.You know, I will--you know, if and whenyou decide whether or not your client isgoing to testify, I will let you ask me toreconsider it at that point."
Nothing in the record supports Jackson' s contentionthat the offense was the result of a drug deal gone"bad." The record indicates that the victim's wifeinformed the police that her husband was asmall-time dealer of crack cocaine. However,neither Jackson nor the codefendants mentioned adrug deal gone "bad" in their statements tolaw-enforcement officers after the offense. At thehearing, defense counsel stated that he wanted tocross-examine certain witnesses about the victim'sbeing a drug dealer to determine if those witnesseswould testify that the victim had been killed as theresult of a "bad" drug deal. Defense counsel merelyspeculated that there was a potential for suchtestimony; nothing in his proffer indicates thatevidence existed to support this theory. While thestatement of Gerard Burdette , a passenger in theautomobile with the victim at the time of themurder, did refer to "gang" activity, the statementdid not indicate that the murder was related to drugactivity. Nothing in the record, other than defensecounsel 's speculation, supports Jackson's theory thatthe killing was the result of a drug deal gone "bad."Speculation and conjecture do not establish relevantevidence of the existence of a viable defense.Therefore, we hold that the trial court's grant of theState's motion *987 in limine did not constituteerror, plain or otherwise.
B.
[14] Jackson contends that the trial court erred inoverriding the jury recommendation of lifeimprisonment without the possibility of parole,which was unanimous , and sentencing him to death.
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jury's sentencing recommendation.
Section 13A-5-47(b), Ala.Code 1975 , requires thatthe trial court order and receive a writtenpresentence-investigation report before itdetermines the sentence in a capital case . Section13A-5-47(b) further provides that thepresentence- investigation report and any evidencesubmitted in connection with it shall be made partof the record in the case.
"Rule 26.3(b), Ala. R.Crim. P., provides for whatcan be contained in such a presentence report.When a defendant has a significant juvenilerecord , his or her teenage difficulties will appearas part of the presentence report. However, underthe Alabama capital-sentencing scheme , juvenileadjudications are not convictions and cannot beconsidered as prior criminal activity. Freeman v.State, 555 So.2d 196, 212 (Ala.Crim.App. 1988),affil, 555 So.2d 215 (Ala.1989), cert. denied, 496U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d 284( 1990). Only convictions can negate the statutorymitigating circumstance of no significant historyof prior criminal activity. § 13A-5- 51(1),Ala.Code 1975; Freeman v. State, 651 So.2d576, 597-98 (Ala.Crim.App.1994)."
Ex parte Burgess, 811 So.2d 617, 623 (Ala.2000).
The record , specifically the sentencing order,reveals that the trial court found one statutorymitigating circumstance--that Jackson was. 18 yearsold at the time of the crime. § 13A-5-51(7),Ala.Code 1975. However , Jackson alleges . that the.,,trial court used his juvenile record. to negate thestatutory mitigating circumstance that he had nosignificant history of prior criminal activity.13A-5-51( 1). In fact , the trial court specifically.stated that Jackson 's juvenile record could not beconsidered in determining whether that statutorymitigating circumstance existed . However, thecourt noted that Jackson had a significant priorcriminal history : he had three felony convictions.Error, if any, by the trial court in consideringJackson's juvenile record was harmless . Er parteDavis . 718 So .2d 1166, 1178 (Ala.1998).Therefore, the trial court properly assessed theweight it was to assign that mitigating circumstancein light of Jackson ' s prior felony convictions.
2.
IFirst, Jackson contends that the trial court erred inconsidering his juvenile record in overriding the
Jackson contends that the trial court improperlyconsidered his physical characteristics in
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considering the statutory mitigating circumstance ofhis age at the time of the offense. See13A-5-51(7), Ala.Code 1975. Specifically, heargues that the trial court's reference to his heightand weight at the time of the crime was arbitraryand that it deprived him of a reliable sentencingdetermination.
In Ex parte Clisbv, 456 So.2d 105, 108-09(Ala.1984), cert. denied, 470 U.S. 1009, 105 S.Ct.1372, 84 L.Ed.2d 391 (1985), this Court stated:
"[T]he sentencing authority in Alabama, the trialjudge, has unlimited discretion to consider anyperceived mitigating circumstances , and he canassign appropriate weight to particular mitigatingcircumstances. The United States Constitutiondoes not require that specific *988 weights beassigned to different aggravating and mitigatingcircumstances. Murrv v. State, 455 So.2d 53(Ala.Crim.App.198[3] ), rev'd on other grounds,455 So.2d 72 (Ala.1984). Therefore, the trialjudge is free to consider each case individuallyand determine whether a particular aggravatingcircumstance outweighs the mitigatingcircumstances or vice versa. Moore v. Balkcom,716 F.2d 1511 (11th Cir. 1983). Thedetermination of whether the aggravatingcircumstances outweigh the mitigatingcircumstances is not a numerical one, but insteadinvolves the gravity of the aggravation ascompared to the mitigation."
[15] The record reflects that in weighing themitigating circumstance of Jackson 's age at the timeof the offense, the trial court noted Jackson's height,his weight, and his age at the time of the offense, aswell as the fact that Jackson was the father of a3-month-old child, that be had smoked marijuanasince he was 14 years old, that he consumed alcoholon a regular basis, and that he had an extensivecriminal record. The court also noted that Jacksonwas "a physically mature adult" at the time of theoffense. A trial judge can consider past behaviorand prior criminal activity in evaluating adefendant's maturity and in determining the weightto be given the mitigating circumstance of thedefendant's age . Cf. Ex parte Burgess, supra. Thedecision whether a particular mitigatingcircumstance is proven and the weight to be given itrests with the judge and the jury. See Carroll v.State, 599 So.2d 1253 (Ala.Crim.App.1992), affd,627 So.2d 874 (Ala.1993), cert. denied, 510 U.S.1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994).
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The trial court did not err in its assessment of theweight to assign the mitigating circumstance ofJackson's age at the time of the offense.
3.
Jackson further contends that the trial courtimproperly plagiarized the sentencing order fromShellito v. State, 701 So.2d 837, 843-44 (F1a.1997),cert. denied, 523 U.S. 1084, 118 S.Ct. 1537, 140L.Ed.2d 686 (1998). in its analysis of the mitigatingcircumstance of Jackson's age. Specifically,Jackson argues that the trial court used thesentencing order from Shellito as a"till-in-the-blank" form, thereby depriving him ofan individualized sentencing determination.
The record shows that in the sentencing order, thetrial court stated that Jackson's case was similar toShellito_ Upon review of Shellito and of the trialcourt's sentencing order, we conclude that the trialcourt adopted only the analysis used in She//ito. Inthis case, the trial court's assessment contains athorough analysis of the facts and the circumstancesinvolved in this case, thereby providing anindividualized sentencing determination. We findno error.
4.
Jackson contends that the trial court failed to make.an adequate determination of his culpability byfailing to determine whether he was the actualshooter in the murder.
In its sentencing order, the trial court stated "thereis evidence that [Jackson] was the shooter [and]there is evidence that suggests that [one of Jackson'scodefendants], not [Jackson] fired the shot thatkilled [the victim]." The record supports the court'sdetermination of Jackson's culpability. Therefore,Jackson's argument that the trial court failed todetermine his culpability is without merit.
5.
Finally, Jackson contends that the trial court'soverride of the jury's unanimous recommendation oflife imprisonment without *989 parole wasimproper, arbitrary, and unconstitutional, and that itwrongfully negated the role of the jury. He arguesthat - § 13A-5-47(e), Ala.Code 1975 [FN4]--Alabama's judicial override statute--is standardless,
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unlike override statutes in other states, and that itfails to give lower courts guidance in rejecting ajury's recommendation.
FN4. Section 13A-5-47(e), Ala.Code 1975, provides:"In deciding upon the sentence , the trialcourt shall determine whether theaggravating circumstances it finds to existoutweigh the mitigating circumstances itfinds to exist, and in doing so the trialcourt shall consider the recommendation ofthe jury contained in its advisory verdict,unless such a verdict had been waivedpursuant to Section 13A-5-46(a) or13A-5-46(g). While the jury'srecommendation concerning sentenceshall be given consideration, it is notbinding upon the court."(Emphasis added.)
This Court in Ex parte Apicella, 809 So.2d 865(Ala•200I ), upheld the constitutionality of having ajudge, not the jury, determine the punishment in acapital case . In Ea- parte Turlor, 808 So.2d 1215(Ala.2001), this Court held that thecapital-sentencing procedure set forth in §§13A-5-47 and 13A-5-53, Ala.Code 1975, providedsufficient guidance to prevent the arbitrary andcapricious imposition of a death sentence. [FN5]Specifically, the Court noted that thecapital-sentencing procedure "ensures that the trialjudge is given adequate information and sufficientguidance in deciding whether to accept or to reject ajury's recommended sentence" and that § 13A-5-53,Ala.Code 1975, provided sufficient guidelines foran appellate determination of "whether a trialjudge's override of the jury's recommendation isappropriate in a particular case ." 808 So.2d at 1219.
FN5. We cannot accept Jackson'sinvitation to engraft the rule propounded inTedder v. State, 322 So.2d 908, 910(Fla.1975)(stating that for a trial court toimpose a death sentence over a jury'srecommendation of life imprisonmentwithout parole, "the facts suggesting asentence of death should be so clear andconvincing that virtually no reasonableperson could differ"). Section 13A-5-47(e)
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provides an explicit statutory directivethat the jury's recommendation as to thesentence is "not binding upon the court."Adopting a rule like the one set forth inTedder would impermissibly rewrite thestatute, in violation of our constitutionalduty to observe the separation between thepowers conferred upon the judiciary andthose conferred upon the Legislature. § 43Constitution of Alabama of 1901.
We now turn to an analysis of the propriety of theoverride of the jury's recommendation of lifeimprisonment without parole in Jackson 's case.
[16] Section 13A -5-53, Ala.Code 1975 , provides,in pertinent part:
"(b) In determining whether death was the propersentence in the case the Alabama Court ofCriminal Appeals, subject to review by theAlabama Supreme Court, shall determine:"(1) Whether the sentence of death was imposedunder the influence of passion, prejudice, or anyother arbitrary factor;"(2) Whether an independent weighing of theaggravating and mitigating circumstances at theappellate level indicates that death was the propersentence; and"(3) Whether the sentence of death is excessive ordisproportionate to the penalty imposed in similarcases, considering both the crime and thedefendant."(c) The Court of Criminal Appeals shallexplicitly address each of the three questionsspecified in subsection (b) of this section in everycase it reviews in *990 which a sentence of deathhas been imposed."(d) After performing the review specified in thissection , the Alabama Court of Criminal Appeals,subject to review by the Alabama Supreme Court,shall be authorized to:."(1) Affirm the sentence of death;
"(3) In cases in which the death penalty isdeemed inappropriate under subdivision (b)(2) or(b)(3) of this section , set the sentence of deathaside and remand to the trial court with directionsthat the defendant be sentenced to lifeimprisonment without parole."
Thus , reinstatement of a jury recommendation oflife imprisomnent without parole is appropriate inthose circumstances where the trial court has
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overridden the jury's recommendation based onbias, passion, or prejudice; where the weighing ofaggravating or mitigating circumstances isdefective; or where the sentence isdisproportionately severe under all of thecircumstances . See § 13A-5-53(b), Ala.Code 1975.
In this case, before determining the sentence, thetrial court considered all the available evidence;heard arguments on aggravating circumstances andmitigating circumstances; entered written findingsof fact summarizing the offense and Jackson'sparticipation in it; made specific written findingsconcerning the existence or nonexistence of eachaggravating circumstance enumerated in §13A-5-49, each mitigating circumstance enumeratedin § 13A- 5-51, and any additional mitigatingcircumstance offered pursuant to § 13A-5- 52;weighed the advisory verdict of the jury;considered and weighed thepresentence-investigation report; considered andindependently weighed the mitigating circumstancesand the aggravating circumstances; and statedspecific reasons for giving the jury'srecommendation the consideration it gave therecommendation, see Er parte Taylor. Afterfollowing this procedure, the trial court concludedthat the aggravating circumstances outweighed themitigating circumstance and imposed the deathpenalty, overriding the jury's recommendation.
We commend the trial court for its thoroughsentencing order and especially for its explanationfor its override of the jury. recommendation. Thetrial court found two statutory aggravatingcircumstances: (1) that the capital offense wascommitted while Jackson was engaged in a robberyor an attempted robbery, and (2) that the capitaloffense was committed by a person under sentenceof imprisonment. The trial court found onestatutory mitigating circumstance: that Jackson was18 years old at the time of the offense. It is evidentfrom the trial court's sentencing order that itindependently weighed the aggravatingcircumstances and the mitigating circumstance.Additionally, the trial court provided a detailedanalysis of its consideration of the jury'srecommendation of a sentence of life imprisonmentwithout the possibility of parole and the reasons itrejected that recommendation and sentencedJackson to death. There is no evidence in therecord before us indicating that bias, passion, orprejudice were factors in the trial court's imposing
the death sentence.
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We have independently weighed the aggravatingand mitigating circumstances to determine if deathis the appropriate sentence; we conclude, as did theCourt of Criminal Appeals, that the aggravatingcircumstances in this case outweighed themitigating circumstance. Furthermore, we agreewith the Court of Criminal Appeals that in this casethe punishment of death is not excessive ordisproportionate to the penalty imposed in similarcases. *991 Therefore, we hold that the impositionof the death sentence in this case was proper.
The judgment of the Court of Criminal Appeals isaffirmed.
OPINION OF FEBRUARY 15, 2002,WITHDRAWN ; OPINION SUBSTITUTED;APPLICATION FOR REHEARINGOVERRULED ; AFFIRMED.
MOORE, C.J., and HOUSTON, SEE, BROWN,HARWOOD, WOODALL, and STUART, JJ.,concur.
JOHNSTONE, J., concurs in part , concurs in theresult in part, and dissents in part as to the opinionand dissents from the denial of rehearing.
LYONS, J., concurs in part and dissents in part asto the rationale and dissents from the judgment anddissents from the denial of rehearing.
JOHNSTONE, Justice (concurring in part,concurring in the result in part, and dissenting inpart as to the opinion and dissenting from the denialof rehearing).
With one exception, I concur in the rationale of themain opinion on the issue of guilt or innocence.The exception is that I do not agree with the trialjudge's rationale, recited in the main opinion, for theconclusion that Detective Signore's lie did notrender the defendant's statement involuntary andtherefore inadmissible. That the statement was nota full confession but was, rather, only an admission
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of inculpatory relationships is immaterial to theissue whether the statement was voluntary. I agree,however, with the conclusion that the lie in this casedid not constitute such a threat or such coercion aswould render the statement involuntary andinadmissible.
A caveat is appropriate on an aspect of the opinionof the Court of Criminal Appeals in this case,Jackson V. State, 836 So.2d 915(Ala.Crim.App.1999). In Part V of that opinion, theCourt of Criminal Appeals appears to hold that thefacts of this case would not support a juryinstruction on the lesser- included offense ofrobbery. Had the defendant requested such a juryinstruction, it would have been due him. Theevidence supporting this theory, however, is not sostrong that the trial court committed plain error inomitting such an instruction in the. absence of arequest for one by the defendant.
I respectfully dissent from affirming the Court ofCriminal Appeals in its affirmance of the judgmentimposing the death penalty pursuant to the trialjudge 's override of the unanimous recommendationof life imprisonment without the possibility ofparole returned by the jury. I agree with JusticeLyons's special writing that the unanimousrecommendation of the jury for life imprisonmentshould be deemed a mitigating circumstance. Ifurther agree with Justice Lyons that the twoaggravating circumstances found in this case do notoutweigh the combined mitigating circumstances ofthe life recommendation, the uncertainties in theevidence that the defendant was the triggerman, andthe young age of the defendant.
In assigning no weight nor binding effect to alife-imprisonment recommendation by a jury,Alabama law reduces to a sham the role of the juryin sentencing and allows baseless , disparatesentencing of defendants in capital cases. The firstof these consequences of Alabama law is a denial ofdue process of law, and the second is both a denialof due process and a denial of equal protection.
Accordingly, while I agree with the adjudication ofthe defendant's guilt, I dissent from affinning theaffirmance of the death sentence . I would reversethe judgment of the Court of Criminal Appealsaffirming the death sentence and would remand thecause for the defendant to be *992 resentenced tolife imprisonment without the possibility of parole.
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I also dissent from the denial of rehearing in thiscase.
LYONS, Justice (concurring in part and dissentingin -part as to the rationale and dissenting from thejudgment and dissenting from the denial ofrehearing).
I concur in the main opinion's rejection ofJackson's contentions concerning the denial of hismotion to suppress, the denial of his motion inlimine, the trial court's consideration of his juvenilerecord and his physical characteristics, and thealleged plagiarism of a sentencing order fromanother case. However, because I would reinstatethe jury's unanimous recommendation of lifeimprisonment without parole, I must dissent fromthe portion of the main opinion that holdsotherwise. I also dissent from the denial ofrehearing.
The Judicial Article, Amendment No. 328,Alabama Constitution of 1901, confers upon ourappellate courts the responsibility for review of allcases , including those in which a sentence of deathhas been imposed. The Legislature has been morespecific. The Court of Criminal Appeals, subject toreview by this Court, is authorized by § 13A-5-53,Ala.Code 1975, to review the propriety of a deathsentence and, where appropriate, to "set thesentence of death aside and remand to the trial courtwith directions that the defendant be sentenced tolife imprisonment without parole." §13A-5-53(d)(3). Justice Maddox has previouslyacknowledged that our appellate courts "areespecially sensitive to their roles when there is ajury override." Er parse Tarver, 553 So.2d 633,635 (Ala.1989), cert. denied, 494 U.S. 1090, 110S.Ct. 1837, 108 L.Ed.2d 966 (1990) (Maddox, J.,concurring specially).
Jackson contends that he is denied due process bythe mechanism of the judicial override. Hiscontention should fail in view of the authority of theappellate courts of this State to considerindependently the jury recommendation againstdeath and to determine whether death is theappropriate penalty in a given case. It is our duty,upon proper application for certiorari review, toreinstate a jury recommendation against the deathpenalty where the trial court's override. is groundedin "passion, prejudice, or any other arbitrary
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factor"; or where there has been a defectiveweighing of the aggravating circumstances and themitigating circumstances ; or where the penalty isdisproportionately severe under all of thecircumstances. § 13A- 5-53(b).
The trial court is to be commended for itsexplanation of the reasons for its override of thejury's advisory verdict . A trial court is required bystatute to enter "specific written findings"concerning the existence or nonexistence of theaggravating circumstances and the mitigatingcircumstances . § 13A-5-47(d). To facilitate theappellate courts of this State in the discharge oftheir statutory duty to review - the propriety of asentence of death, we should require the trial courtto enter specific written findings concerning thepropriety of the decision to impose the deathpenalty over a jury's recommendation of a sentenceof life imprisonment without parole . In makingsuch a determination , the trial court should bemindful of the aforementioned criteria applicable toa determination at the appellate level as to thepropriety of the sentence of death ; namely , whetherthe sentence of death was imposed under theinfluence of passion , prejudice , or any otherarbitrary factor; whether an independent weighingof the aggravating circumstances and the mitigatingcircumstances at the appellate level would indicatethat death was the proper sentence ; and whether thesentence of death is excessive or disproportionate tothe penalty imposed in similar cases , . considering*993 both the crime and the defendant. See13A-5-53(b).
The trial court here aptly observed that it did nothave any guidance from this Court as to how itshould treat the jury's recommendation in theprocess of weighing the aggravating circumstancesand the mitigating circumstances . I believe thisCourt should offer additional guidance to the trialcourt as to the effect of a jury's recommendation ofa sentence of life imprisonment without parole. TheLegislature has provided specific aggravatingcircumstances at § 13A-5-49, preceded by thephrase, "Aggravating circumstances shall be thefollowing ." Such introductory language does notleave room for augmentation of the list throughjudicial decision -making . In contrast , the legislativecatalog of mitigating circumstances is preceded bythe phrase , "Mitigating circumstances shall include,but not be limited to. the following ." § 13A-5-51(emphasis added ). So as to guide the trial court in
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determining the effect of,a jury's recommendationof life imprisonment without parole, this Courtshould hold that such a recommendation is to betreated as a mitigating circumstance. The weight tobe given that mitigating circumstance shoulddepend upon the strength of the factual basis for therecommendation based upon information known tothe jury--such as conflicting evidence concerningthe identity of the "triggerman" or arecommendation made by the victim's family forleniency--subject to the jury's recommendationbeing undermined based upon information knownonly to the trial court and not to the jury.
Pursuant to § 13A-5-53(b), Ala.Code 1975, wemust weigh the aggravating circumstances and themitigating circumstances in this case to determine ifdeath is the appropriate sentence. Burdette, apassenger in the victim's vehicle, stated that he sawa long black ".38 or maybe .357" when Jackson andhis codefendants began shooting at the victim andBurdette. Both Burdette and the medical examinerexpressed the opinion that the person with the .38pistol or the .357 handgun tired the bullet that killedthe victim. That person would have been Barnes,since Barnes and Rudolph both stated that Barneswas the person who was armed with a .357 handgunat the time of the shooting. Based on this evidence,the jury could have believed that Barnes, notJackson, fired the fatal shot, giving the jury a basisfor its recommendation of a sentence of lifeimprisonment without parole.
The trial court found two statutory aggravatingcircumstances: (1) that the capital offense wascommitted while Jackson was engaged in a robberyor an attempted robbery, and (2) that the capitaloffense was committed by a person under asentence of imprisonment. The trial court foundone statutory mitigating circumstance: that Jacksonwas 18 years old at the time of the crime. It isevident by the trial court's sentencing order that itweighed the aggravating circumstances and themitigating circumstance. However, in a close caselike this one, where the evidence suggests apossibility that Jackson might not have fired thefatal shot, treating the jury's recommendation of lifeimprisonment without parole as a mitigatingcircumstance changes the overall balance of theweighing process.
Independently weighing the aggravatingcircumstances and the mitigating circumstances and
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treating the jury's recommendation as a mitigatingCircumstance , I would conclude that the trial court'soverride of the jury 's recommended sentence and itsconsequent imposition of the sentence of death wereimproper under the circumstances of this case. SeeAla.Code 1975, § 13A-5-53(a) and (b). GivenJackson's age at the time of the offense and the factthat the evidence pointed to a codefendant *994- asthe "triggerman ," the jury's unanimousrecommendation of a sentence of life imprisonmentwithout parole tips the scales - in favor of followingthe jury's recommendation and in sentencingJackson to life imprisonment without parole.
In this way , we can abide by the . Legislature'scommand that a jury recommendation is not binding(y 13A-5-47(e)); at the same time, I do notunderstand the Legislature to have commanded thatthe jury recommendation be given no weightwhatsoever. We therefore can give the jury'srecommendation some weight in the sentencingprocess as a mitigating circumstance . I do notsuggest that a trial court can never override a jury'srecommendation of a life-imprisonment sentence,but in order to do so , the aggravating circumstancesmust be sufficiently egregious to support a sentenceof death in light of all mitigating circumstances,including a jury's recommendation of lifeimprisonment without parole. T'herefore, Irespectfully dissent from the judgment.
836 So.2d 979
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IN THE ALABAMA COURT OF CRIMINAL APPEALS
NO.
EX PARTE STATE OF ALABAMA.
IN RE:
SHONELLE ANDRE JACKSON,
PETITIONER,
vs.
STATE OF ALABAMA,
RESPONDENT.
EXHIBITSFOR THE
PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE TRACY S . MCCOOEY , CIRCUIT JUDGE,FIFTEENTH JUDICIAL CIRCUIT
Volume II of II
TROY KING
Attorney General
And
James 'R. Bouts
ASSITANT ATTORNEY GENERAL
Jeremy McIntire
ASSISTANT ATTORNEY GENERAL
1 OFFICE OF THE ATTORNEY GENERAL
CAPITAL LITIGATION DIVISIONALABAMA STATE HOUSE11 SOUTH UNION STREET
MONTGOMERY, ALABAMA 36130
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IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA,
SHONELLE ANDRE JACKSON, )
Petitioner,
v. ) Case No: CC-97 -2300.50
STATE OF ALABAMA,
Respondent.
STATE ' S MOTION FOR SUMMARY DISMISSAL OF THE CLAIMS INJACKSON ' S AMENDED RULE 32 PETITION THAT ARE PROCEDURALLY
BARRED FROM REVIEW PURSUANT TO RULE 32.2(a ) OF THE ALABAMARULES OF CRIMINAL PROCEDURE.
Comes now the State of Alabama, the Respondent in the
above-styled cause, and moves this Honorable Court to
dismiss those claims in Jackson's amended Rule 32 petition
that are procedurally barred. In support of this motion,
the State of Alabama submits the following:
1. Rule 32.2(a) of the Alabama Rules of Criminal
Procedure provides, in relevant part, as follows:
A petitioner will not be given relief under this Rulebased upon any ground:
(2) which was raised or addressed at trial; or
(3) which could have been but was not raised attrial . . .; or
(4) which was raised or addressed on appealor
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(5) which could have been but was not raised onappeal . . . .
2. "Alabama has never recognized any exceptions to
the procedural default grounds contained in Rule 32,
Ala.R.Crim.P. [Moreover, the appellate courts] have
repeatedly stated that the procedural bars in Rule 32 apply
equally to all cases, including those in which the death
penalty has been imposed." Hooks v. State, CR-99-2212,
2000 WL 1496807, at *4 (Ala. Crim. App. Oct 6, 2000); see
also, e.g., State v. Burton, 629 So. 2d 14, 20 (Ala. Crim.
App. 1993), cert. denied, 114 S. Ct. 1664 (1994). The
procedural bars apply to Jackson's Rule 32 petition.
3. Listed below are the claims raised in the Rule 32
petition which are procedurally barred, and the specific
citation to Rule 32.2(a), which bars consideration of each
claim.
The Claim That Jackson Was Denied The Effective
Assistance Of Counsel In Part Because Of The
Insufficient Funds Provided For Court-Appointed
Attorneys In Capital Cases. Ala. R . Crim. P. 32.2(a)(3)and (5 ). (Paragraphs 12-16)1
Ground II : THE CLAIM THAT JUROR MISCONDUCT DURING THE
TRIAL DEPRIVED JACKSON OF HIS RIGHTS TO A FAIRTRIAL , DUE PROCESS , AND A RELIABLE SENTENCE
'This claim is unnumbered in Jackson's amended rule 32petition.
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DETERMINATION. Ala. R. Crim. P. 32.2(a)(3)and (5). (paragraphs 151-163)
Ground III: THE CLAIM THAT THE STATE WITHHELD FAVORABLE
EVIDENCE FOR THE DEFENSE THUS VIOLATINGJACKSON ' S FEDERAL AND STATE RIGHTS . Ala. R.Crim. P. 32.2(a)(3) and (5). (paragraphs 164-168)
Ground V:
Ground VI:
THE CLAIM THAT THE DEATH SENTENCE IN THIS CASEIS DISPROPORTIONATE IN VIOLATION OF JACKSON'S
STATE AND FEDERAL RIGHTS. Ala. R. Crim. P.
32.2.(a) (3) and (4). (paragraphs 175-177)
THE CLAIM THAT THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY FAILING TO INSTRUCT THEJURY ON THE LESSER INCLUDED OFFENSE OF ROBBERY.
Ala. R. Cram. P. 32.2(a)(3) and (4).(paragraphs 178-181)
Ground VII: THE CLAIM THAT THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY DENYING JACKSON A
CONTINUANCE TO SECURE A CRITICAL WITNESS. Ala.
R. Crim. P. 32.2(a)(2) and (4). (paragraphs182-185)
Ground VIII: THE CLAIM THAT THE TRIAL COURT IMPROPERLY LEFT
THE COURTROOM WHILE THE JURY WATCHED JACKSON'S
VIDEOTAPED STATEMENT. Ala. R. Cram. P.
32.2(a)(3) and (4). (paragraphs 186-187)
Ground IX(A): THE CLAIM THAT THE STATE IMPROPERLY OBTAINED
JACKSON'S CONVICTION BY UNCORROBORATEDACCOMPLICE TESTIMONY . Ala. R. Cram. P.32.2(a)(2) and (4). (paragraphs 188-191)
Ground IX(B): THE CLAIM THAT THE TRIAL COURT ERRED IN
FAILING TO INSTRUCT THE JURY ABOUT THE
ACCOMPLICE CORROBORATION REQUIREMENT. Ala. R.
Crim. P. 32.2(a)(3) and (4). (paragraph 188-191)
Ground X: THE CLAIM THAT THE STATE 'S USE OF ITSPEREMPTORY CHALLENGES DISCRIMINATED ON THE
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BASIS OF RACE AND GENDER . Ala. R . Crim. P.32.2(a ) ( 2) , (3) and ( 4). (paragraphs 192-194)
Ground XI : THE CLAIM THAT THE TRIAL COURT ' S REASONABLE
DOUBT INSTRUCTION WAS UNCONSTITUTIONAL. Ala.
R. Crim . P. 32.2(a)(3) and ( 4). (paragraphs195-198)
Ground XII : THE CLAIM THAT THE TRIAL COURT IMPROPERLY
ADMITTED PHOTOGRAPHS THAT SERVED ONLY TO
INFLAME AND PREJUDICE THE JURY . Ala. R. Crim.P. 32.2 (a)(3) and ( 4). (paragraphs 199-200)
Ground XIII : THE CLAIM THAT THE TRIAL COURT IMPROPERLY
GRANTED THE STATE'S CHALLENGES OF JURORS FOR
CAUSE . Ala. R . Crim . P. 32.2(a)(3) and (4).(paragraphs 201-203)
Ground XIV:
Ground XV:
THE CLAIM THAT THE TRIAL COURT IMPROPERLY
ADMITTED EVIDENCE THAT DID NOT HAVE A PROPER
CHAIN OF CUSTODY . Ala. R . Crim . P. 32.2(a)(2)and (4 ). (paragraph 204)
THE CLAIM THAT THERE WAS INSUFFICIENT EVIDENCE
TO CONVICT JACKSON OF CAPITAL MURDER. Ala. R.
Crim. P. 32.2(a)(3) and (4). (paragraphs 205-206)
Ground XVI : THE CLAIM THAT DOUBLE COUNTING ROBBERY AS AN
ELEMENT OF THE CAPITAL OFFENSE AND AS AN
AGGRAVATING CIRCUMSTANCE WAS IMPROPER. Ala.R. Crim . P. 32.2 (a)(3) and ( 4). (paragraphs207-209)
Ground XVII : THE CLAIM THAT ALABAMA ' S MANNER OF
EXECUTION CONSTITUTES CRUEL AND UNUSUAL
PUNISHMENT . Ala. R . Crim . P. 32.2(a)(3)and (4). (paragraph 210-211)
Ground XVIII: THE CLAIM THAT THE CUMULATIVE EFFECT OF ALL OFTHE ABOVE ERRORS ENTITLE JACKSON TO RELIEF.Ala. R . Crim . P. 32.2(a)(3) and (4),
(paragraph 212)
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4. Rule 32.7(d) of the Alabama Rules of Criminal
Procedure provides, in relevant part, as follows:
If the court determines that the petition . .. is precluded or fails to state a claim, orthat no material issue of fact or law existswhich would entitle the petitioner to reliefunder this rule and that no purpose would beserved by any further proceedings, the courtmay either dismiss the petition or grant leaveto file an amended petition.
The State, therefore, respectfully requests that this
Honorable Court dismiss the above-cited claims in Jackson's
amended Rule 32 petition based on the rules of preclusion
contained in Rule 32.2(a) of the Alabama Rules of Criminal
Procedure.
Respectfully submitted,
Assistant Attorney General
ere!ny McIntire
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CERTIFICATE of SERVICE
I hereby certify that on this a$ day 6f May, 2004, I
did serve a copy of the foregoing on the attorneys for the
Petitioner, by placing the same in the United States Mail,
first class, postage prepaid and addressed as follows:
Bryan A. StevensonAngela L. Satzer
Equal Justice Initiative of Alabama122 Commerce Street
Montgomery, Al 36104
1Jeremy R. McIntireAssistant Attorney General
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ADDRESS OF COUNSEL:
Office of the Attorney GeneralCapital Litigation DivisionAlabama State House
11 South Union StreetMontgomery, AL 36130-0152(334) 353-4014
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IN THE CIRCUIT COURT OF MONTGOMERY COUNTY , AI MAMA
SHONELLE ANDRE JACKSON,
Petitioner,
V. ) Case No: CC-97-2300.60
STATE OF ALABAMA,
Respondent.
STATE'S MOTION. FOR SUMMARY DISMISSAL OF THOSE CLAIMS INJACKSON ' S AMENDED RULE 32 PETITION THAT ARE INSUFFICIENTLYPLEADED UNDER RULES 32.3 AND 32.6(b ) OF THE ALABAMA RULES
OF CRIMINAL PROCEDURE
Comes now the State of Alabama, the Respondent in the
above-styled cause, and moves this Honorable Court to
summarily dismiss those claims in Jackson's amended Rule 32
petition that fail to meet the requirements of Alabama
Rules of Criminal Procedure 32.3 and 32.6(b). In support
of this motion, the State of Alabama submits the following:
1. Rule 32.3 of the Alabama Rules of Criminal
Procedure provides, in relevant part, that "[t]he
petitioner shall have the burden of pleading and proving by
a preponderance of the evidence the facts necessary to
entitle the petitioner to relief." Ala. R. Crim. P. 32.3
(emphasis added).
2. Rule 32.6(b) of the Alabama Rules of Criminal
Procedure provides:
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The petition must contain a clear and specificstatement of the grounds upon which relief issought, including full disclosure of the'factualbasis of those grounds. A bare allegation that aconstitutional right has been violated and mereconclusions of law shall not be sufficient towarrant any further proceedings.
Ala. R. Crim. P. 32.6(b)
3. Listed below are the claims raised in Jackson's
amended Rule 32.petition that are subject to summary
dismissal for failure to meet the pleading requirements of
Alabama Rules of Criminal Procedure 32.3 and 32.6(b):
The Claim That Jackson Was Denied The Effective
Assistance Of Counsel In Part Because Of The
Insufficient Funds Provided For Court-Appointed
Attorneys In Capital Cases . (Paragraphs 12-16) Ala. R.Crim. P. 32. 2 and 32.6 (b) . 1
This claim is due to be dismissed for failing to meet
the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P.
Jackson does not fully disclose the factual basis of his
claim that he was denied effective assistance of counsel.
Jackson fails to specify how a lack of funding prohibited
counsel from being effective or what information could have
been presented if counsel had been adequately funded. His
pleading does not include any facts which, if presented by
trial counsel, would have resulted in a different finding
'This claim is unnumbered in Jackson's amended petition.
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by the trial court. Under Rule 32.7 ( d), Ala.R.Crim.P.,
this claim of ineffective assistance of counsel that is not
sufficiently pleaded is due to be dismissed . (" If the
court determines that the petition is not sufficiently
specific , or is precluded , or fails to state a claim, or
that no material issue of fact or law exists which would
entitle the petitioner to relief under this rule and that
no purpose would be served by any further proceedings, the
court may either dismiss the petition or grant leave to
file an.amended petition").
Ground I (A) (2) (c ) : The claim that trial counsel was
ineffective for failing to procure the
assistance of an investigator and/orsocial worker . (Paragraph 35) Ala. R.Crim . P. 32.2 and 32.6(b).
Jackson fails to state how he was prejudiced by trial
counsel's failure to procure an investigator and/or social
worker. Jackson has not provided any information that
would show that the outcome of the trial would have been
different had trial counsel procured any such experts.
Jackson fails to identify any evidence or information that
would have been discovered that would have changed the
outcome of the trial. As such, Jackson's claim fails to
comply with the specificity and full factual pleading
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requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.;
therefore, it is due to be summarily dismissed by the
.Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v. State,
2003 WL 1949823, *3 (Ala. Crim. App. 2003)("Although
Bracknell specifically identified the acts or omissions on
the part of his trial counsel that he believed constituted
deficient performance, he failed to include in his petition
any facts tending to indicate how those acts or omissions
prejudiced his defense.").
Ground I (A) (2) (d ) : The claim that trial counsel was
ineffective for failing to procure the
assistance of a mental health expert.(Paragraph 36-38 ) Ala. R . Crim . P. 32.2and 32.6(b).
Jackson fails to state how he was prejudiced by trial
counsel's failure to procure a mental health worker. His
pleading does not include any facts, which a mental health
expert would have uncovered that, if presented by trial
counsel, would have resulted in a different outcome during
the guilt phase. Nor does Jackson specifically identify
any mental impairments he allegedly suffers from. Under
Rule 32.7(d), Ala.R.Crim.P., any claim of ineffective
assistance of counsel that is not sufficiently pleaded is
due to be dismissed. ("If the court determines that the
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petition is not sufficiently specific, or is precluded, or
fails to state a claim, or that no material i'ssue of fact
or law exists which would entitle the petitioner to relief
under this rule and that no purpose would be served by any
further proceedings, the court may either dismiss the
petition or grant leave to file an amended petition").
Jackson's claim fails to comply with the specificity and
full factual pleading requirements of Rule 32.6(b), 32.3,
Ala. R. Crim. P.; therefore, it is due to be summarily
dismissed by the Court. Ala. R. Crim. P. 32.7(d).
Ground I (A) (2) (e) : The claim that trial counsel was
ineffective for failing to procure the
assistance of an expert on drug andalcohol abuse . (Paragraph 29) Ala. R.
Crim. P. 32.2 and 32.6(b).
Jackson has failed to allege any facts in support of
this claim in his petition, nor has he demonstrated or
indicated how he was prejudiced by trial counsel's failure
to procure a drug and alcohol expert. As such, Jackson's
claim fails to comply with the specificity and full factual
pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim.
P.; therefore, it is due to be summarily dismissed by the
Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v. State,
2003 WL. 1949823, *3 (Ala. Crim.. App. 2003) ("Although
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Bracknell specifically identified the acts or omissions on
the part of his trial counsel that he believed constituted
deficient performance, he failed to include in his petition
any facts tending to indicate how those acts or.omissions
prejudiced his defense."). Under Rule 32.7(d),
Ala.R.Crim.P., any claim of ineffective assistance of
counsel that is not sufficiently pleaded is due to be
dismissed. ("If the court determines that the petition is
not sufficiently specific, or is precluded, or fails to
state a claim, or that no material issue of fact or law
exists which would entitle the petitioner to relief under
this rule and that no purpose would be served by any
further proceedings, the court may either dismiss the
petition or grant leave to file an amended petition").
Jackson's claim fails to comply with the specificity and
full factual pleading-requirements of Rule 32.6(b), 32.3,
Ala. R. Crim. P.; therefore, it is due to be summarily
dismissed by the Court. Ala. R. Crim. P. 32.7(d).
Ground I (A) (3) (b) : The claim that trial counsel was
ineffective for failing to challengeJackson ' s underlying convictions.(Paragraph 41) Ala . R. Crim. P. 32.3and 32.6(b).
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Jackson does not disclose the factual basis of his
claim that he was denied effective assistance of counsel
because trial counsel failed to challenge his underlying
convictions. Jackson does not explain why guilty pleas to
the underlying convictions were not voluntary. ("If the
court determines that the petition is not sufficiently
specific, or is.precluded, or fails to state a claim, or
that no material issue of fact or law exists which would
entitle the petitioner to relief under this rule and that
no purpose would be served by any further proceedings, the
court may either dismiss the petition or grant leave to
file an amended petition"). Jackson's claim fails to
comply with the specificity and full factual pleading
requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.;
therefore, it is due to be summarily dismissed by the
Court. Ala. R. Crim. P. 32.7(d).
Ground I(A)(3)(e): The claim that trial counsel was
ineffective for failing to removecertain jurors and for failing to securea jury expert. (Paragraphs 46-47) Ala.R. Crim . P. 32.3 and 32.6(b).
Jackson does not disclose the factual basis of his
claim. Jackson does not identify any jurors that trial
counsel should have removed nor does Jackson explain how a
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jury expert would have assisted in voir dire. ("If the
court determines that the petition is not sufficiently
specific, or is precluded, or fails to state a claim, or
that no material issue of fact or law exists which would
entitle the petitioner to relief under this rule and that
no purpose would be served by any further proceedings, the
court may either dismiss the petition or grant leave to
file an amended petition"). Jackson's claim fails to
comply with the specificity and full factual pleading
requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.;
therefore, it is due to be summarily dismissed by the
Court. Ala. R. Crim. P. 32.7(d).
Ground I (A) (3) (h ) : The claim that trial counsel was
ineffective for failing to adequately
investigate and cross -examine certainwitnesses . (Paragraphs 52-55) Ala. R.Crim . P. 32.3 and 32.6(b).
Jackson does not disclose the factual basis of his
claim. Jackson does not identify testimony, evidence, or
questions that trial counsel should have elicited in their
investigation or on cross-examination. Instead, Jackson
only makes bare allegations that trial counsel's
investigation and cross-examination of witnesses was
insufficient. ("If the court.determines that the petition
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is not sufficiently specific, or is precluded, or fails to
state a claim, or that no material issue of fact or law
exists which would entitle the petitioner to relief under
this rule and that no purpose would be served by any
further proceedings, the court may either dismiss the
petition or grant leave to file an amended petition").
Jackson's claim fails to comply with the specificity and
full factual pleading requirements of Rule 32.6(b), 32.3,
Ala. R. Crim. P.; therefore, it is due to be summarily
dismissed by the Court. Ala. R. Crim. P. 32.7(d).
Ground I (A) (3) (o) : The claim that trial counsel was
ineffective for failing to ensure a
complete record . (Paragraph 65) Ala. R.Crim. P . 32.3 and 32.6(b).
This claim is due to be dismissed for failing to meet
the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P.
Jackson fails to state how he was prejudiced by trial
counsel's failure to ensure a complete record. As a
result, Jackson has not provided any information that would
show that the outcome of the trial would have been
different had trial counsel ensured a complete record
such, Jackson's claim fails to comply with the specificity
and full factual pleading requirements of Rule 32.6(b),
32.3, Ala. R. Crim. P.; therefore, it is due to be
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32.7(d). See, Bracknell v. State, 2003 WL 1949823, *3 (Ala.
Crim. App. 2003)("Although Bracknell specifically
identified the acts or omissions on the part of,his trial
counsel that he believed constituted deficient performance,
he failed to include in his petition any facts tending to
indicate how those acts or omissions prejudiced his
defense.").
Ground I(B)(3): The Claim That Counsel Was Ineffective
For Failing To Obtain And Present
Independent Expert Testimony At The
Penalty And Sentencing Phases.(Paragraphs 140-146 ) Ala. R . Cram. P.32.3 and 32.6(b).
Jackson fails to specify what information should have
been presented by "expert" witnesses. Jackson has not
provided any information that would show that the outcome
of the trial would have been different had trial counsel
procured any such experts. Jackson fails to identify any
evidence or information that would have been discovered
that would have changed the outcome of the trial. As such,
Jackson's claim fails to comply with the specificity and
full factual pleading requirements of Rule 32.6(b), 32.3,
Ala. R. Crim. P.; therefore, it is due to be summarily
dismissed by the Court. Ala. R. Crim. P. 32.7(d).
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Ground III: THE CLAIM THAT THE STATE WITHHELDFAVORABLE EVIDENCE FOR THE DEFENSE THUSE
VIOLATING JACKSON'S FEDERAL' AND STATERIGHTS . (Paragraphs 164-168) Ala. R.
Crim. P. 32.3 and 32.6(b).
The Brady allegations are due to be dismissed as
insufficiently plead. Jackson states that "evidence
introduced at trial and in the records that Mr. Jackson has
received strongly indicates that additional discoverable
material exists". (Jackson's Amnd. Pet. at 65) Far from
actually asserting that such violations took place, Jackson
has only alleged that they may exist. Furthermore, Jackson
has not specifically explained how any of the evidence
allegedly withheld from the defense was either favorable or
exculpatory to his defense. For example, Jackson alleges
that a witness drew a diagram of the crime scene and that
it was not disclosed to the defense. However, Jackson does
not explain in the petition how this diagram is either
favorable or exculpatory. Another example involves
Jackson's claim that law enforcement impounded both the
cars involved in the murder. Jackson argues that testing
Lay have been done on the vehicles which was never
disclosed to the defense. Again, Jackson fails to explain
how or why such testing, if it even exists, is favorable or
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exculpatory. All of Jackson's Brady claims lack any
statement as to why the allegedly suppressed evidence is
either favorable, exculpatory, or even discoverable.
As such, Jackson's claim fails to comply with the
specificity and full factual pleading requirements of Rule
32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be
summarily dismissed by the Court. Ala. R. Crim. P.
32.7(d). Ala. R. Crim. P. 32.7(d). See, Bracknell v. State,
2003 WL 1949823, *3 (Ala. Crim. App. 2003)("Although
Bracknell specifically identified the acts or omissions on
the part of his trial counsel that he believed constituted
deficient performance, he failed to include in his petition
any facts tending to indicate how those acts or omissions
prejudiced his defense.").
CONCLUSION
4. Rule 32.7(d) of the Alabama Rules of Criminal
Procedure provides that claims that fail to meet the burden
of pleading may be dismissed without an evidentiary
hearing. Ala. R. Crim. P. 32.7(d). Specifically, Rule
32.7(d) states, in relevant part, the following:
If the court determines that the petitionis not sufficiently specific, or isprecluded, or fails to state a claim, orthat no material issue of fact or law
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exists which would entitle the petitionerto relief under this rule and that nopurpose would be served by any furtherproceedings, the court may either dismissthe petition or grant leave to file anamended petition.
Ala. R. Crim. P. 32.7(d) (emphasis added). Thus, where the
petitioner, as here, fails to plead a claim sufficiently,
the circuit court may dismiss such claim without an
evidentiary hearing. Fincher v. State, 724 So. 2d 87, 89
(Ala. Crim. App. 1998).
5. The State, therefore, respectfully requests that
this Court summarily dismiss those claims in Jackson's
amended Rule 32 petition that fail to meet the
requirements of Alabama Rules of Criminal Procedure
32.3 and 32.6(b).2
Respectfully submitted,
erem! McIntireAssistant Attorney General
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2Any failure by the State to include a claim(s) subject todismissal under Ala. R. Crim. P. 32.3 and 32.6(b) is notmeant as a waiver of that ground.
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