Boatwright v. State, 7 Div. 462

• Decision Date: 24 June 1986
• Docket Number: 7 Div. 462
• Citation: 494 So.2d 929
• Parties: Clifford Merrill BOATWRIGHT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 929

494 So.2d 929

Clifford Merrill BOATWRIGHT v. STATE.

7 Div. 462.

Court of Criminal Appeals of Alabama.

June 24, 1986.

Rehearing Denied Aug. 12, 1986.

Thomas M. Goggans of Goggans, McInnish, Bright & Chambless, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

In 1983, Clifford Merrill Boatwright was convicted, in a trial without a jury, for trafficking in marijuana and for possession of marijuana. He was sentenced to nine years' imprisonment and fined $25,000. This court affirmed that conviction in Boatwright v. State, 438 So.2d 769 (Ala.Cr.App.1983). In 1984, Boatwright filed a petition for writ of error coram nobis alleging "(1) that he was denied the effective assistance of counsel at trial and on appeal of his conviction for trafficking in marijuana; (2) that his trial counsel had a conflict of interest and (3) that he did not knowingly and intelligently waive his right to trial by jury." The petition was denied without an evidentiary hearing and the denial was affirmed by this court in Boatwright v. State, 471 So.2d 1255 (Ala.Cr.App.1984). The Alabama Supreme Court reversed the decision and remanded the cause for an evidentiary hearing in Ex parte Boatwright, 471 So.2d 1257 (Ala.1985). Following a hearing, the trial judge again denied the petition. This appeal is from that denial.

Abandoning the earlier argument that his trial counsel had a conflict of interest, Boatwright now reasserts his claim that his trial and appellate attorneys were ineffective, but he alleges that they were inadequate on grounds different from those asserted in his petition. He also claims once again that his lawyers did not explain to him his right to trial by jury and maintains that he did not voluntarily waive that right.

I

Although Boatwright does not advance the conflict of interest issue on appeal, see Rule 45B, A.R.A.P., we, nevertheless, specifically uphold the trial court's order denying the petition on that ground.

At the evidentiary hearing, Glen Sexton, another defendant charged with a drug offense and also represented by attorney Louis Wilkinson, testified as follows:

"Q Did you and Mr. Wilkinson have any discussions about a possible deal that could be made in Marshall County?

"A No, sir.

"Q Did you have any discussion about Merrill Boatwright?

"A Well, yeah.

"Q Tell us what that conversation with Mr. Wilkinson about Mr. Boatwright was.

"A He told me that the District Attorney up there said that he would trade me for the red headed son of a bitch in Gadsden.

"Q Do you know to whom he was referring when he said 'red headed son of a bitch from Gadsden?'

"A I assume it was Merrill.

"MISS JONES [Assistant District Attorney]: I'm going to object if it's an assumption, Judge. If he doesn't know--

"THE COURT: Yes, I sustain as to the assumption.

"Q Mr. Sexton, did you take that to mean Merrill Boatwright?

"MISS JONES: Now,--

"A Yes, sir.

"Q Did the name Merrill Boatwright come up?

"A Not at that time.

"Q During the time that Mr. Wilkinson was representing you you were aware that something might benefit by your providing some information on Mr. Boatwright, were you not? Whether you did or not, you knew that might help you?

"A Yes, sir.

"Q Mr. Sexton, in relation--are you aware that Mr. Boatwright was tried and convicted up here or down here in Etowah County around the same time?

"A Yes, sir.

"....

"Q Mr. Sexton, did you provide any information on Mr. Boatwright?

"A No, sir."

Attorney Louis Wilkinson's testimony refuted Sexton's charges:

"Q Mr. Wilkinson, in your representation of Glen Sexton did you not have a discussion with Mr. Sexton about something that the D.A. in Marshall County had said about possibly trading him for some information on Merrill Boatwright?

"A No, sir.

"Q What disposition was made of Mr. Sexton's case?

"A Mr. Sexton, as I recollect it, got a split sentence, 3 months to serve, 5 years probation, something like that.

"Q And you don't remember having a discussion with Mr. Sexton about Mr. Boatwright?

"A No, I don't remember having a discussion with Mr. Sexton about Mr. Boatwright and I deny having a discussion with Mr. Starnes about trading anybody for anybody.

"Q What about with Mr. Sexton?

"A Trading somebody for somebody?

"Q Yes, what kind of negotiations did you engage in to get Mr. Sexton the split sentence?

"Q Well, Mr. Sexton, as I recollect it, had no record whatever except for a good affirmative work record. The State had a problem because the informer--or their witness, let me put it that way--against Mr. Sexton was a guy named Norton, as I recollect it, and he had an atrocious record. And the State was not too took up with using him for a witness against Sexton. All of those factors taken into consideration, and I think they were major factors, they offered the settlement and we took it."

In addition, the trial judge noted that it was not altogether clear that Wilkinson represented Sexton and Boatwright at the same time, and he observed that because the two defendants were charged in separate counties, Sexton's version of an offered "trade" was all the more suspect.

The petitioner bears the burden of proof in a coram nobis proceeding. Robinson v. State, 419 So.2d 283 (Ala.Cr.App.1982). "[W]here conflicting evidence is presented at a hearing on a petition for writ of error coram nobis, the trial judge must 'believe' the evidence offered by the petitioner before he will be justified in granting relief." Howton v. State, 432 So.2d 548, 550 (Ala.Cr.App.1983) (quoting Seibert v. State, 343 So.2d 788, 790 (Ala.1977). A review of the transcript demonstrates that the trial judge's finding that Boatwright did not prove his conflict of interest allegation is supported by the record. See Hayes v. State, 417 So.2d 579 (Ala.Cr.App.1982).

II

Boatwright next contends that his waiver of a jury trial was involuntary and his lawyers were ineffective for failing to ascertain that fact.

The alleged invalidity of Boatwright's waiver is a matter of which Boatwright was aware or should have been aware at trial, see Spradley v. State, 414 So.2d 170, 172 (Ala.Cr.App.1982), but which was not urged at trial or on appeal, and it is, therefore, not cognizable under the writ of error coram nobis, see Holsclaw v. State, 429 So.2d 1185 (Ala.Cr.App.1983).

Furthermore, Boatwright's allegation that counsel were ineffective for failing to determine the voluntariness of his waiver does not satisfy the requirement of "prejudice" set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Boatwright did not allege in his petition that, had counsel been effective, he would not have agreed to a bench trial but would have insisted on a trial by jury. Compare Smith v. State, 488 So.2d 19 (Ala.Cr.App.1986) (petitioner failed to allege that but for counsel's inadequacy, he would not have pled guilty).

Nevertheless, even assuming that Boatwright's waiver and ineffectiveness claims are not procedurally barred, he has not satisfied his burden of proof. "A defendant charged with a non-capital felony may waive a jury trial with the consent of the State and the trial court provided the waiver is made knowingly, voluntarily, and intelligently in light of all the surrounding circumstances." Spradley v. State, 414 So.2d at 172; Junior v. State, 375 So.2d 556, 557 (Ala.Cr.App.1979). A colloquy of the type required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), for a plea of guilty is neither necessary nor mandated, Murphy v. State, 347 So.2d 1369 (Ala.Cr.App.), cert. denied, 347 So.2d 1371 (1977). See also United States ex rel. Williams v. DeRobertis, 715 F.2d 1174 (7th Cir.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984); People v. Frey, 103 Ill.2d 327, 82 Ill.Dec. 661, 469 N.E.2d 195 (1984). The burden of establishing an invalid waiver of trial by jury rests on the party asserting the invalidity. Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942).

In statements to the authorities, Boatwright admitted the presence and ownership of nine pounds of marijuana in his automobile. At trial, the only issue was a purely legal one, the validity of the search of his vehicle and the seizure of the drugs. Defense counsel moved to suppress the evidence and challenged its admissibility in arguments to the court on the ground that the police did not have probable cause to search Boatwright's vehicle. Counsel claimed that, because the tip on which the police were acting did not disclose the basis of the informant's knowledge, it could not provide probable cause under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

At the coram nobis hearing, co-counsel Rowan Bone testified:

"Louis [Wilkinson] was of the opinion that unless he could successfully beat the search that there was going to be a conviction. And, as I recall, there was quite a--quite a bit of marijuana in the trunk of the car, I think. I don't remember the quantity but it was quite a bit. And Louis was of the opinion, and I agreed with him, that if it went to the jury there would be a conviction because of the amount." (R. 14).

Louis Wilkinson testified:

"[T]here was no factual question whatever, as I remember the fact situation. After Mr. Boatwright was arrested he acknowledged that the drugs were his, et cetera, et cetera, et cetera, and that the only real question was the technical one, the search and seizure question, the potential Fourth Amendment question." (R. 23)

Defense counsel's conclusions that, if the motion to suppress were unsuccessful, the large amount of marijuana seized and Boatwright's admission of ownership of it would result in a conviction are "natural and logical strategy" reasons for choosing a bench trial. See People v. Frey, 103 Ill.2d...