Bass v. State, 6 Div. 664

• Decision Date: 02 March 1982
• Docket Number: 6 Div. 664
• Citation: 417 So.2d 582
• Parties: Carl BASS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 582

417 So.2d 582

Carl BASS v. STATE.

6 Div. 664.

Court of Criminal Appeals of Alabama.

March 2, 1982.

Rehearing Denied March 23, 1982.

Dennis N. Balske, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

Denial of petition for writ of error coram nobis.

Appellant's conviction of first degree murder was affirmed by this court in Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975). Appellant's assertion that he was denied effective assistance of counsel in that case forms the basis for the present appeal.

Contrary to appellant's contention, this jurisdiction has not directly or indirectly adopted any standard of review for examining allegations of incompetency of counsel other than that which we have previously utilized. The standard remains that appellant must show that the conduct of the attorney reduced the trial to a farce, sham, or mockery of justice. Behel v. State, Ala.Cr.App., 405 So.2d 51 (1981); Bridges v. State, Ala.Cr.App., 391 So.2d 1086 (1980); Goodman v. State, Ala.Cr.App., 387 So.2d 862, cert. denied, Ala., 387 So.2d 864 (1980); Lewis v. State, Ala.Cr.App., 367 So.2d 542 (1978), cert. denied, Ala., 367 So.2d 547 (1979). This court is not bound by the decisions of the Fifth Circuit Court of Appeals. Harris v. State, Ala.Cr.App., 367 So.2d 524, cert. denied, Ala., 367 So.2d 534 (1978).

The function of a writ of error coram nobis under Alabama law is to bring to the attention of the trial court an error of fact, which had it been known, would have prevented the judgment challenged. In effect, the writ serves as a motion for a new trial on the ground of newly discovered evidence. Vaughn v. State, Ala.Cr.App., 395 So.2d 95 (1979); Seibert v. State, Ala., 343 So.2d 788 (1977); Lewis, supra; Summers v. State, Ala.Cr.App., 366 So.2d 336 (1978), cert. denied, Ala., 366 So.2d 346 (1979).

"In a coram nobis proceeding, the petitioner bears the burden of submitting clear, full and satisfactory proof of facts which, had they been timely submitted at trial, would have prevented judgment.... The degree of proof is 'highly exacting as to facts' and must convince the trial judge of the truth of the allegations in the petition...." Bibby v. State, Ala.Cr.App., 394 So.2d 73, 75 (1980), cert. denied, Ala. 394 So.2d 76 (1981).

See also, Seibert, supra; Corley v. State, Ala.Cr.App., 397 So.2d 223, cert. denied, Ala., 397 So.2d 225 (1981); Lewis, supra; Summers, supra.

Challenges based on the ineffective assistance of counsel constitute grounds for a petition for error coram nobis despite earlier indications to the contrary. Counsel is presumed adequate and the fact that the petitioner was convicted does not establish incompetency or lack of zeal, especially when counsel had been retained rather than appointed. Summers, at page 341. See also Echols v. State, 276 Ala. 489, 164 So.2d 486 (1964); Willis v. State, 42 Ala.App. 85, 152 So.2d 883 (1963).

The writ of error coram nobis does not serve the purpose of an appeal. Nor does it serve as a second review of those issues previously raised or not initially raised on appeal. Adams v. State, 281 Ala. 432, 203 So.2d 448 (1967); Butler v. State, 279 Ala. 311, 184 So.2d 823 (1966); Thigpen v. State, Ala.Cr.App., 374 So.2d 401, cert. denied, Ala. 374 So.2d 406 (1979); Summers, supra; Groce v. State, 48 Ala.App. 709, 267 So.2d 499 (1972).

Appellant's first assertion, that his trial counsel failed to investigate his case by not interviewing State's witnesses to discover their criminal backgrounds or deals with the State, is not supported by the evidence. At the outset, we note that had such information been learned prior to trial, it could only have been used to impeach the credibility of the witnesses and not as substantive evidence of appellant's innocence. Nevertheless, James Davis, one of the State's witnesses, admitted on examination that he had a criminal case pending against him.

Appellant's trial counsel testified that he interviewed two other witnesses, James Merritt and Joe Ferguson. He read the statements all three witnesses made to the police prior to the time for the preliminary hearing and stated that, had there been any deals by the State and the witnesses, which he suspected, he did not think he would have been told of them regardless of his attempts to discover them. Mr. Fred Pickard, the prosecuting attorney in appellant's case, testified that he did not make any deal with any of the above witnesses.

Mr. Charles Purvis, Davis' attorney at the time of appellant's trial, testified that the State "didn't promise me anything (in exchange for Davis' testimony) and I didn't promise James anything." Nevertheless, he felt that for testifying against appellant, Davis was given probation on his pending charges, a usual and common practice, according to Purvis.

An adequate defense in the context of a constitutional right to counsel does not mean that counsel will not commit what may later prove to be tactical errors. The evidence presented by appellant on this ground does not disclose any error in tactics or inadequacy of representation. Summers, supra.

Appellant's counsel testified that he waived appellant's preliminary hearing because he had already learned from the arresting officers all the evidence that would have been presented at the hearing. He stated that he had already done his own investigative work, and had read the statements of the witnesses but he could not locate the witnesses appellant suggested.

Appellant offered no evidence to rebut his lawyer's testimony other than his statement that he was not consulted prior to the waiver. In fact, an inference exists that his preliminary hearing was waived at arraignment when both he and his counsel were present.

The record reflects that appellant's trial counsel exercised his professional judgment in waiving the preliminary hearing. The attorney apparently concluded that the State had sufficient evidence to establish the commission of the offense and probable cause for charging appellant therewith. While a preliminary hearing is widely used by defense counsel for discovery purposes, which is what appellant contends his trial counsel failed to do by waiving it, that is not its primary purpose. Daniels v. State, Ala.Cr.App., 335 So.2d 412 (1976); § 15-11-9, Code of Alabama 1975. There is no general constitutional right to discovery by an accused in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).

Appellant's next argument, that his counsel's incompetence was demonstrated by his failure to file any pretrial motions, especially a motion to suppress the in-court identification of an eyewitness to the shooting, is not supported by the record.

Initially, we note that there is no rule stating that trial counsel's failure to file pretrial motions constitutes per se inadequacy of representation. The failure to act must cause the trial to be reduced to a farce, sham, or mockery of justice. See generally Pace v. State, Ala.Cr.App., 369 So.2d 1281 (1979).

No testimony was offered at appellant's hearing to substantiate his claim. We have reviewed the original transcript of the witness's testimony and we find that the supposed eyewitness admitted that he did not, in fact, see the actual shooting, although he was present at the scene and had the opportunity to observe the appellant. He was shown a photographic array two days after the murder and picked out appellant's picture at that time. It thus appears that the witness had an independent basis for his identification of appellant. Pace, supra.

Appellant next asserts that, by not meeting with him to prepare for his trial, and especially by not meeting with him during the overnight recess in his trial, his counsel inadequately represented him.

As to the former allegation, appellant testified that he met with his lawyer about three times prior to trial. His lawyer, however, testified that they met about six times. The obvious conflict in the evidence was a matter properly decided by the trial court. Harris v. State, Ala.Cr.App., 367 So.2d 524, cert. denied, Ala. 367 So.2d 534 (1978).

On his latter contention, appellant cites Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), for the proposition that counsel's failure to meet with him during the recess constituted inadequate representation.

In Geders, the federal district court ordered the defendant's counsel not to contact the defendant during an overnight recess. The Supreme Court held that the order violated Geders' Sixth Amendment right to effective assistance of counsel. Geders does not stand for the proposition that counsel is required to confer with his client during a recess, but for the principle that the right exists if the accused and his counsel so desire.

Appellant does not indicate in what manner he was prejudiced. The record does not disclose any prejudice; if anything, it supports the opposite conclusion. Thus, we find no inadequacy demonstrated. See Taylor v. Alabama, 335 U.S. 252, 68 S.Ct. 1415, 92 L.Ed. 1935 (1948); Thomas v. State, 274 Ala. 531, 150 So.2d 387 (1963); Brown v. State, Ala.Cr.App., 373 So.2d 1232 (1979).

Appellant contends that his attorney announced ready for trial when in fact he was unprepared. At appellant's hearing, the only testimony offered on this ground was by the attorney, who stated that, although he was "surprised" when appellant's case was called for trial because it was so far down on the docket, "we had been talking about this for almost a year and it wasn't something that we didn't fully understand what was going to happen."

We find appellant's proof of incompetency on this ground insufficient to sustain the allegation. Harris, supra.

Appellant claims that trial counsel did not advise him of the consequences of his testifying. Appellant testified that near the end of his trial, his lawyer whispered a...