Benjamin v. State

Citation156 So.3d 424
Decision Date20 December 2013
Docket NumberCR–10–1832.
PartiesBrandyn Josephe BENJAMIN v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals

Robert L. Schnell, Leif T. Simonson (withdrew 11/05/13), and Eileen M. Hunter, Minneapolis, Minnesota; and John Steensland III, Dothan, for appellant.

Luther Strange, atty. gen., and Thomas R. Govan, Jr., asst. atty. gen., for appellee.

Opinion

KELLUM, Judge.

Brandyn Josephe Benjamin, currently an inmate at Holman Correctional Facility on Alabama's death row, appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P.

In 2004, Benjamin was convicted of murdering Jimmie Lewis during the course of a first-degree robbery, a murder defined as capital by § 13A–5–40(a)(2), Ala.Code 1975. The jury recommended, by a vote of 10 to 2, that Benjamin be sentenced to death. The circuit court followed the jury's recommendation and sentenced Benjamin to death. After remanding Benjamin's case for the circuit court to correct its sentencing order, we affirmed Benjamin's conviction and his sentence of death on direct appeal. See Benjamin v. State, 940 So.2d 371 (Ala.Crim.App.2005), cert. denied, 549 U.S. 997, 127 S.Ct. 494, 166 L.Ed.2d 372 (2006). This Court issued the certificate of judgment making Benjamin's direct appeal final on April 21, 2006.

On April 17, 2007, Benjamin filed a timely Rule 32 petition in the Houston Circuit Court attacking his conviction and death sentence. He filed an amended postconviction petition in March 2008. In August 2008, the circuit court partially dismissed some of Benjamin's claims. An evidentiary hearing was held on the remaining claims, and in July 2011 the circuit court issued a 33–page order denying Benjamin's postconviction petition.1 Benjamin then filed a timely notice of appeal to this Court.

In its order sentencing Benjamin to death, the circuit court set out the following facts surrounding Lewis's murder and Benjamin's conviction:

“The victim, Jimmie Lewis, had gone to Wiregrass Commons Mall about 9:00 p.m. on the night of November 18, 2000, to pick up his wife, who operated a shop in the mall. He had gone to Mrs. Lewis' shop and determined that she was ready to close, and because it was raining outside, he returned to bring the car closer to the mall exit so that Mrs. Lewis wouldn't get wet. Mr. Lewis had parked his car in a remote area of the mall parking lot. The defendant had gone to the mall with the specific intent of finding a victim to rob. He watched mall security to see how often they made rounds and also parked his car in an area which wouldn't raise suspicion. As Jimmie Lewis approached his car, the defendant appeared and apparently demanded the victim's wallet. A struggle ensued, and the defendant struck the victim several times and shot him twice—once in the chest and once in his leg. The defendant took the victim's wallet and contents and left the scene. The victim was dead when the police and paramedics arrived shortly thereafter. The defendant later related all of the details of the crime to a friend[, Michael Baker,] indicating that he had no remorse for his actions. [Baker then] went with his attorney to the District Attorney. The District Attorney arranged for a body wire to be placed on [Baker] so that the police could hear the defendant confess his actions once again to [Baker]. The defendant was then arrested and his room searched. A copy of the Dothan Eagle newspaper account of the crime was found in the defendant's room and later the victim's wallet was also found.”

(Trial C.R. 202.)

Standard of Review

Rule 32.3, Ala. R.Crim. P., provides, in pertinent part: “The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.”‘When reviewing a circuit court's rulings made in a postconviction petition, we may affirm a ruling if it is correct for any reason.’ Lee v. State, 44 So.3d 1145, 1149 (Ala.Crim.App.2009), quoting Bush v. State, 92 So.3d 121, 134 (Ala.Crim.App.2009).

The majority of the claims raised by Benjamin involve allegations that his trial attorneys were ineffective. In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show: (1) that counsel's performance was deficient; and (2) that he was prejudiced by the deficient performance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133–34 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v. Louisiana, [350 U.S. 91] at 101 [ (1955) ]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.”

Strickland, 466 U.S. at 689 (citations omitted). As the United States Supreme Court further stated:

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.”

Strickland, 466 U.S. at 690–91.

“The Sixth Amendment right to counsel guarantees a fair trial, not a perfect one.” Willis v. United States, 87 F.3d 1004, 1008 (8th Cir.1996). “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003). “Effective counsel does not mean errorless counsel.” Birt v. Montgomery, 709 F.2d 690, 705 (11th Cir.1983).

At trial, Benjamin was represented by attorneys Michael Crespi and Kalia Lane. Both testified at the postconviction evidentiary hearing.

I.

Benjamin first argues that his counsel was ineffective for failing to effectively argue a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion. In Batson, the United States Supreme Court held that it was a violation of the Equal Protection Clause to strike a black prospective juror from a black defendant's jury based solely on the juror's race. This holding was extended to white defendants in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), to defense counsel in criminal cases in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), and to gender-based strikes in J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

The record of Benjamin's trial shows that both the State and Benjamin were allowed 15 peremptory strikes. The strike list indicated that the State struck 9 white jurors and 6 black jurors. Benjamin used all of his 15 strikes to remove white prospective jurors. After the jury was struck, Benjamin's counsel made a Batson objection and argued that 7 black prospective jurors remained on the venire after the strikes for cause and the State used 6 of its 15 strikes to remove black prospective jurors. (Trial R. 123.) The court then asked the prosecutor to state its reasons for striking the six black jurors. (Trial R. 125.) In the postconviction proceeding, Benjamin challenges the removal of only three of those black prospective jurors.

Initially, Benjamin argues that he was not required to plead or prove any prejudice because, he says, prejudice is presumed in a Batson context. The Alabama Supreme Court in Ex parte Yelder, 575 So.2d 137 (Ala.1991), first held that under the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test an attorney's failure to make a Batson objection when the record clearly established a prima facie case of purposeful discrimination is subject to the “presumed prejudice” standard. The Court reaffirmed this holding in Ex parte Frazier, 758 So.2d 611, 616 (Ala.1999). However, neither the Yelder Court nor the Frazier Court addressed whether the presumed-prejudice standard applies when an attorney does make a Batson objection, as the attorney did in this case, or whether that standard applies when a defendant raises the issue as an ineffective-assistance-of-counsel claim in a postconviction proceeding. Both Yelder and Frazier were cases on direct appeal, cases where the standard of review and burden of proof are different than appeals from the denial of a Rule 32 petition.

Other courts have declined to extend the presumed-prejudice standard to a claim of ineffective assistance of counsel in regard to a Batson claim.

Batson errors are not presumptively prejudicial when raised in an ineffective assistance of counsel claim. Young v. Bowersox, 161 F.3d 1159, 1161 (8th Cir.1998) ; Davidson
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