Adkins v. State

• Decision Date: 09 February 2001
• Docket Number: CR-99-0834.
• Citation: 930 So.2d 524
• Parties: Ricky D. ADKINS v. STATE.
• Court: Alabama Court of Criminal Appeals

930 So.2d 524

Ricky D. ADKINS v. STATE.

CR-99-0834.

Court of Criminal Appeals of Alabama.

February 9, 2001.

Opinion on Return to Remand August 31, 2001.

Opinion on Return to Second Remand April 26, 2002.

Opinion Affirming on Return to Third Remand March 26, 2004.

Rehearing Denied May 28, 2004.

Certiorari Denied November 18, 2005 Alabama Supreme Court 1031350.

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Stephen B. Bright and Christopher M. Johnson, and Ty Alper, Atlanta, Georgia, for appellant.

Troy King and William H. Pryor, Jr., attys. gen., and Thomas F. Parker IV (withdrawn January 24, 2001) and A. Vernon Barnett IV, asst. attys. gen., for appellee.

PER CURIAM.

Ricky D. Adkins appeals from the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P.

Adkins raises many issues in this appeal. However, we must remand this case to the circuit court for St. Clair County for that court to make specific findings of fact concerning the allegations that are not procedurally barred in Adkins's postconviction petition. Therefore, we will not address all the issues Adkins raises.

The trial court, when denying Adkins's petition, stated:

"Though neither attorney for Petitioner was overly experienced, both performed competently, and their representation of Petitioner cannot be adjudged ineffective, professionally unreasonable or deficient. Additionally, Petitioner has not shown to this Court that, but for the conduct of counsel, a different result as to judgment, sentence or appeal would have occurred."

"All remaining claims made by Petitioner are due to be denied pursuant to Rule 32.2(a)(2)-(5) of the Alabama Rules of Criminal Procedure in that each issue was raised at trial or on appeal, or could have been raised at trial or on appeal."

(C.R. 72.)¹

This is a complicated case. Adkins was sentenced to death and his conviction and sentence were upheld on appeal. Adkins v. State, 639 So.2d 515 (Ala.Crim.App. 1993), aff'd, 639 So.2d 522 (Ala.), cert. denied 513 U.S. 851, 115 S.Ct. 151, 130 L.Ed.2d 90 (1994). The record of the Rule 32 hearing before the trial court is only two volumes; however, there is also a 14-volume supplemental record consisting of affidavits, depositions, and exhibits submitted to the trial court for its consideration on the issues presented in the petition. Our review of the allegations Adkins raises in his brief on appeal is immeasurably hampered because the trial court failed to make written findings of fact concerning each material issue of fact presented. It would be premature for this Court to review the issues without the trial court's making such findings of fact. See Ex parte Grau, 791 So.2d 345 (Ala.2000).

Therefore, this case is remanded to the circuit court for St. Clair County for that court to comply with Rule 32.9(d), Ala. R.Crim.P., by making "specific findings of fact relating to each material issue of fact presented." See Grau; Brown v. State, 677 So.2d 1266 (Ala.Crim.App.1996); Smith v. State, 665 So.2d 954 (Ala.Crim. App.1994); Hellums v. State, 630 So.2d 477 (Ala.Crim.App.), after remand, 630 So.2d 480 (Ala.Crim.App.), cert. denied, 630 So.2d 481 (Ala.1993); Powell v. State, 616 So.2d 370 (Ala.Crim.App.1992), after remand, 616 So.2d 371 (Ala.Crim.App. 1993); Arnold v. State, 562 So.2d 296 (Ala. Crim.App.1990), after remand, 590 So.2d 387 (Ala.Crim.App.1991). It is not necessary for the trial court to address those issues it had determined were procedurally barred. Because of the complexity of this case, the trial court is given 60 days from the date of this opinion to file its findings of fact and conclusions of law with this Court.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

COBB, J., recuses herself.

On Return to Remand

PER CURIAM.

Ricky D. Adkins appeals from the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P. We remanded this case so that the trial court could comply with Rule 32.9(d), Ala. R.Crim.P., by making "specific findings of fact relating to each material issue of fact presented." See Adkins v. State, 930 So.2d 524 (Ala.Crim.App.2001).

The trial court has filed its return to our remand order; that return states, in part:

"The Court concludes that the following are the only material issues of fact presented for this Court's consideration: Ineffective assistance of counsel in the investigation of Petitioner's case, the defense of the State's case, the presentation of an adequate defense and the presentation of mitigation during the sentencing phase. The Court specifically finds that though neither attorney for Petitioner was overly experienced, both performed competently, and their representation of Petitioner cannot be adjudged legally or factually ineffective, professionally unreasonable or deficient. Additionally, Petitioner has not shown to this Court [that], but for the conduct of counsel, a different result as to judgment, sentence or appeal would have occurred."

The trial court has failed to comply with our directions; it has not made specific findings of fact concerning each material allegation of ineffective assistance of counsel raised in Adkins's postconviction petition. The return to remand merely contains general conclusions; it does not refer to any factual determinations.

The record reflects that Adkins's third amended postconviction petition was filed on May 24, 1999. It raised numerous claims of ineffective assistance of trial counsel that comprise nearly 13 pages of the petition. The majority of Adkins's claims concern his allegation that his trial counsel failed to investigate and failed to present mitigation evidence at the penalty phase of trial. In support of the allegations Adkins offered the depositions of Adkins's family members, the affidavits of expert witnesses, and the depositions of the two attorneys who represented Adkins at his capital trial. There are also numerous exhibits from the Taylor Hardin Secure Medical Facility, where Adkins underwent mental evaluations before his trial. It is impossible for this Court to review these claims without the trial court's first making specific findings of fact as to each material allegation of ineffective assistance of counsel raised in Adkins's amended petition.

For the trial court's convenience, we quote the following findings of fact made by a circuit judge and cited with approval in our opinion in Horsley v. State, 527 So.2d 1355 (Ala.Crim.App.1988), cert. denied, 489 U.S. 1059, 109 S.Ct. 1328, 103 L.Ed.2d 596 (1989):

"`Petitioner's trial counsel's performance was not deficient for failing to object to the trial court's oral charge. Trial counsel are not obliged to object without regard to the merits of the objection. E.g., Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir.)[,] cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). Petitioner also failed to establish a reasonable probability that, but for the trial court's charge, the outcome of his trial would have been different. A passing reference, at the worst, to review of errors of law when directly coupled with an explanation in the strongest terms of the jury's responsibility to decide whether a defendant is guilty or innocent cannot be construed to and did not diminish the jury's sense of its responsibility.

"`Petitioner's third allegation of ineffective assistance, contained in paragraphs 15(a), 15(b), 15(d), and 16(a), was that trial counsel failed to submit his mental deficiency, resulting from a childhood fall, as mitigation. At the evidentiary hearing trial counsel testified that they only learned of petitioner's fall on the day of sentencing when they were told of it by petitioner's mother and grandmother. Trial counsel only learned of the fall at this late date despite their repeated efforts to obtain information of this type from both petitioner and his family. Trial counsel testified, and the trial transcript shows, that they presented this testimony, which was all the evidence they had to present, at sentencing.

"`Trial counsel conducted a reasonable pre-trial investigation which included seeking evidence from petitioner's background favorable to him. Trial counsel had extensive pretrial contact with petitioner and petitioner did not appear to them to suffer from any mental deficiency or disability. Trial counsels' performance was not deficient for failing to present evidence of petitioner's purported mental deficiency. The absence of any additional evidence can be attributed not to trial counsel but to petitioner and his family. Trial counsel's representation was not deficient simply because petitioner's coram nobis counsel developed some arguably mitigating evidence not presented at trial where trial counsel made a reasonable effort to discover such evidence. Burger v. Kemp, 753 F.2d 930, 938-939 (11th Cir.1985).

"`Petitioner has also failed to establish a reasonable probability that, but for the absence of some additional evidence showing a childhood injury, the outcome of his trial would have been different. The jury was made aware of both the injury and its supposed effects through the testimony of petitioner's mother and grandmother. Any additional evidence would have been cumulative to this testimony and would not have affected petitioner's trial.

"`Petitioner's fourth allegation of ineffective assistance, contained in paragraph 15(c) of the petition, was that trial counsel failed to seek psychiatric assistance. Trial counsel's investigation and contact with petitioner did not lead them to think that he had mental problems warranting a psychiatric examination. Both counsel were, and are, experienced criminal defense attorneys who had represented clients with mental problems. Their strategic decision not to pursue a psychiatric examination was made after an extensive investigation and is not to be...