Behel v. State, 8 Div. 406

• Decision Date: 04 August 1981
• Docket Number: 8 Div. 406
• Citation: 405 So.2d 51
• Parties: Curtis Gene BEHEL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 51

405 So.2d 51

Curtis Gene BEHEL v. STATE.

8 Div. 406.

Court of Criminal Appeals of Alabama.

Aug. 4, 1981.

Rehearing Denied Oct. 6, 1981.

Elizabeth T. Cvetetic, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

This appeal is from a denial of a petition for writ of error coram nobis seeking to overturn appellant's 1978 conviction of burglary in the first degree and a forty-year sentence in the penitentiary. A full-blown hearing was had and much testimony was taken. Appellant's major contention is that he was denied adequate and effective assistance of counsel.

His original conviction was affirmed by this court on October 30, 1979, Behel v. State, Ala.Cr.App., 390 So.2d 662, certiorari denied, Ala., 390 So.2d 671.

Appellant contends that his retained counsel impeded his presence at trial when the verdict of the jury was announced in open court. This identical issue was raised on the original appeal and was decided adversely to appellant's contention. In disposing of this issue this court stated:

"In Berness v. State, 263 Ala. 641, 83 So.2d 613, the Supreme Court of Alabama, when considering the method of which an appellant's clear and unequivocal right to be present at every stage of his trial may be waived, said:

" 'We are of the opinion that a criminal defendant in a non-capital felony case may waive his continuous presence at the trial. But that this waiver must be of an affirmative and positive nature and made by him personally, as for example when he voluntarily absents himself from the courtroom during the conduct of his trial. Our holding that such conduct constitutes an affirmative and voluntary waiver of the constitutional right, personal to the defendant, is consistent with the holding in McNutt v. State, 25 Ala.App. 129, 142 So.2d 773.' "

In Behel, supra, this court went on to hold that appellant voluntarily absented himself from the courtroom and waived his right to be present in court when the verdict was returned. At the hearing on the motion for a new trial, appellant was offered the opportunity to explain his absence from the courtroom during his trial and he told the trial judge: "The reason that I didn't, it was embarrassing to me to sit here and these people, that prosecutor telling this jury what I was supposed to have done when I didn't do it. And that is the reason that I did not come back."

At the coram nobis hearing appellant testified and presented testimony from his father and sister in an attempt to show that trial counsel impeded his attendance at the trial. However, there was no direct proof that trial counsel instructed appellant to stay away from the trial. Trial counsel testified that he did not in any manner, directly or indirectly, advise appellant to absent himself from the trial. On the contrary he wanted appellant present to testify in the case at the risk of being impeached because of a previous felony conviction. On the last day of the trial appellant was not in court and trial counsel asked his family where he could be located and they stated they did not know his whereabouts.

On the issue of ineffective assistance of counsel Honorable Lavern Tate, the District Attorney, testified as to Mr. Holt's ability as a trial lawyer, saying, "Well, I would say that there is probably not anybody better than he is; there may be some as good, but none any better than he is in this particular area and in my field of the attorneys that I practice against."

Mr. Robert Walker testified that he had been practicing law about fifteen years and had represented the Behel family for a number of years. He recommended Mr. Holt to the Behels to represent appellant because of his reputation as being one of the most prominent criminal attorneys in Alabama.

Mr. Holt was very aggressive in defense of appellant. That he is a very competent, able, diligent, and resourceful lawyer cannot be successfully gainsaid. While it is true that he did not make a closing argument for the defense this can be regarded as a judgment call and a matter of trial strategy. Much must be left to the discretion of trial counsel in making decisions in the trial of cases.

Trial counsel testified at great length as to his activities in preparing appellant's case for trial. He interviewed a number of witnesses in an attempt to establish a credible defense. He did not know until the morning of the trial that appellant claimed he...