Benefield v. State

• Citation: 726 So.2d 286
• Parties: Rudolph BENEFIELD v. STATE.
• Decision Date: 20 June 1997
• Court: Alabama Court of Criminal Appeals

726 So.2d 286

Rudolph BENEFIELD v. STATE.

CR-96-0123.

Court of Criminal Appeals of Alabama.

June 20, 1997.

Opinion on Return to Remand June 19, 1998.

Rehearing Denied September 11, 1998.

Certiorari Denied November 20, 1998.

George H. Jones, Birmingham, for appellant.

Bill Pryor, atty. gen., and Gail Ingram Hampton and Beth Slate Poe, asst. attys. gen., for appellee.

Alabama Supreme Court 1972295.

McMILLAN, Judge.

The appellant, Rudolph Benefield, filed a Rule 32, Ala.R.Crim.P., petition, making numerous claims of ineffective assistance of counsel, as well as various other allegations which, he maintains, entitle him to relief. The trial court's order, denying the petition, addressed only a portion of the appellant's ineffective assistance claims and failed to address any of the other claims. Therefore, the State requests that this Court remand the cause to the trial court so that that court can address the appellant's claim regarding trial counsel's alleged failure to perfect an appeal. In light of the district attorney's response, acknowledging that he was unaware of the circumstances surrounding the appeal, the trial court should, if necessary, conduct an evidentiary hearing. Additionally, if any remaining claims are procedurally precluded from review, the trial court should so state for the record.

This cause is therefore remanded to the trial court so that the record can be expanded and clarified. Should the trial court deem it necessary to hold an evidentiary hearing addressing the claims, the trial court's return to remand shall include a transcript of the remand proceedings. The trial court should make due return to this court within 60 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

All judges concur.

On Return to Remand

McMILLAN, Judge.

This case involves an appeal from a Rule 32, Ala.R.Crim.P., petition and an out-oftime direct appeal.

The appellant, Rudolph Benefield, filed a Rule 32, Ala.R.Crim.P., petition, in which he raised numerous claims of ineffective assistance of counsel, as well as various other claims that, he maintains, entitle him to relief. On June 20, 1997, we remanded this cause to the trial court to address the appellant's claims, including his claims regarding ineffective assistance of trial counsel. Additionally, if any of the appellant's claims were procedurally precluded from review, the trial court was to so state for the record.

On remand, the trial court conducted a hearing and subsequently granted the appellant's request for an out-of-time appeal and denied his Rule 32 petition. This Court has consolidated the out-of-time appeal and the appeal from the denial of the Rule 32 petition for purposes of this opinion.

I.

Direct Appeal Issues

A.

The appellant argues that the trial court erred in denying his motion for a judgment of acquittal made at the close of the State's case. Specifically, he alleges that "the only evidence against him was that one Larry Austin, who had admitted to between ten to twelve or twenty prior felony convictions and no motive was shown [sic]."

The evidence presented by the State tended to show the following. Larry Austin testified that on the evening of November 18, 1987, he and the victim, Jeff Lacy, were standing on a street corner in Birmingham when the appellant approached and started talking with them. While they were standing there, a friend named Moe drove up and gave each of them a Dilaudid, a narcotic, and then left. After Moe left, another friend named Pete, whose real name is Adam Ford, drove by, and Lacy flagged him for a ride. Austin testified that he and Lacy, along with the appellant, got into Pete's car. Lacy asked Pete to take him home. Pete agreed to do so but said that he first had to stop and take care of some other business. He testified that the three men waited in the vehicle for Pete to return. The appellant asked if anyone had any money and whether they wanted to buy some cocaine. Austin testified that Lacy said that he had a few dollars and that the conversation then "died down." The appellant then stated that he was going home and proceeded to get out of the vehicle. Austin testified that the appellant got out of the car, walked to the front bumper, turned around, pulled out a pistol and shot Lacy on the right side as he was sitting in the front passenger seat. He testified that the appellant was approximately two feet away from Lacy when he fired the shot. Lacy ran across the street and fell. Austin testified that the appellant, with gun in hand, followed Lacy across the street. He testified that he asked the appellant not to kill Lacy. The appellant then left in "Pete's" car.

The State also presented the testimony of Dr. Robert M. Brissie, who testified that he had performed an autopsy on the victim. Dr. Brissie testified that the victim had died as a result of a bullet that penetrated his aorta and that the cause of death was due to a loss of blood from the gunshot wound. He also testified that, based upon his observation of the condition of the victim's clothing, the gun was approximately three inches from the victim when it was fired.

Initially, we note that although testimony tending to show motive is always admissible, motive is not an element of the State's proof; therefore, the appellant's argument that the State was required to prove motive is without merit. See Bragg v. State, 518 So.2d 847 (Ala.Cr.App.1987); McDonald v. State, 241 Ala. 172, 1 So.2d 658 (1941). Additionally, the fact that the State's witness was a convicted felon did not render his testimony inadmissible but rather raised a question as to the weight to be accorded the evidence, which was ultimately decided by the jury. The weight and probative value to be given to evidence, including the credibility of the witnesses, and the inferences to be drawn from the evidence are within the sole province of the jury. Ex parte Smith, 698 So.2d 219 (Ala.1997). Thus, the trial court was correct in denying the motion.

B.

The appellant argues that the trial court erred in denying his motion for a mistrial based upon what he argues were prejudicial comments by the prosecutor during closing argument regarding the appellant's failure to testify. Additionally, the appellant argues, in the alternative, that he received ineffective assistance of counsel because counsel failed to timely object on this ground and thus failed to preserve the argument for his "outof-time" appeal.

An examination of the record reveals that the closing arguments are not contained in the record. It is the duty of the appellant and his counsel on appeal to read the record and to ensure that an adequate record is filed. Magwood v. State, 689 So.2d 959 (Ala.Cr.App.1996). Moreover, it is wellsettled that "`[w]here the record is silent on appeal, it will be presumed that what ought to have been done was not only done, but rightly done.'" Spangler v. State, 711 So.2d 1125 (Ala.Cr.App.1997), quoting Owens v. State, 597 So.2d 734, 736 (Ala.Cr.App.1992). The record indicates, however, that the appellant's trial counsel objected to the prosecutor's closing argument and requested to be heard on it at the conclusion of the arguments. However, it was not until the jury had received its instructions and had retired for deliberations that defense counsel moved for a mistrial, stating that his "reading on the comments of the prosecutor was a comment on the defendant's failure to testify." The trial court responded that trial counsel's objection was untimely because the court had no opportunity to cure any error. The trial court then asked defense counsel what the prosecutor said, and counsel replied that the prosecutor "kept talking about the only evidence from the witness stand is what Mr. Austin says" and "[h]e said that on a number of occasions." The trial court then found that he did not think that that was "necessarily commenting on the defendant" and denied the motion for a mistrial. In order to prove prejudice in a claim of ineffective assistance of counsel, the appellant must prove not only that his trial counsel rendered ineffective assistance but also that, but for the alleged errors, the result of his trial would have been different. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Although trial counsel failed to timely object to the allegedly improper remarks and was admonished by the court to enter a timely objection, the trial court discussed the claim and found it to be without merit. Because the appellant suffered no prejudice as a result of this untimely objection, his ineffective assistance argument must fail.

II.

Rule 32 Issues

A.

The appellant argues that the trial court erred in denying his Rule 32 petition in which he alleges that his trial counsel was ineffective because "counsel failed to object to an omission in the trial court's oral charge when it failed to include any instructions on how the jurors were to assess the credibility of the testimony of Larry Austin, the only State witness, [in view of] his prior felony convictions." Additionally, the appellant argues that trial counsel was ineffective for failing to request that the jury be charged "in substance, `that no inference of guilty [sic] could be derived from the fact that defendant was not sworn and testified in the trial' [pursuant to [Ala.Code 1975] § 12-21-220]."

A review of the record indicates that the trial court's oral charge to the jury substantially covered the subject matter that the appellant contends was omitted. Jordan v. City of Huntsville, 667 So.2d 153 (Ala.Cr. App.1995); Huff v. State, 596 So.2d 16 (Ala. Cr.App.1991). Because no error occurred here, the appellant's ineffective assistance claims as to this issue are without merit.

B.

The appellant argues that he was denied his constitutional right to a speedy trial. He argues that the delay of three years and six months between the time the trial court restored his case...