Brooks v. State

• Decision Date: 29 April 2005
• Docket Number: CR-01-0607.
• Citation: Brooks v. State, 929 So.2d 491 (Ala. Crim. App. 2005)
• Parties: Christopher Eugene BROOKS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

929 So.2d 491

Christopher Eugene BROOKS v.STATE of Alabama.

CR-01-0607.

Court of Criminal Appeals of Alabama.

April 29, 2005.

Rehearing Denied August 5, 2005.

Certiorari Denied October 21, 2005 Alabama Supreme Court 1041729.

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Thomas J. Spina, Birmingham; and Dennis J. Clark, Detroit, Michigan, for appellant.

William H. Pryor, Jr., and Troy King, attys. gen., and Anne C. Adams, asst. atty. gen., for appellee.

WISE, Judge.

Christopher Eugene Brooks, currently an inmate on death-row at Holman Correctional Facility, appeals the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P.

In 1993, Brooks was convicted of three counts of capital murder for murdering the victim during the course of a rape, during the course of a robbery, and during the course of a burglary.The jury, by a vote of 11 to 1, recommended that Brooks be sentenced to death.The circuit court sentenced Brooks to death.His conviction and death sentence were affirmed on direct appeal.SeeBrooks v. State,695 So.2d 176(Ala.Crim.App.1996), aff'd, 695 So.2d 184(Ala.1997), cert. denied, 522 U.S. 893, 118 S.Ct. 233, 139 L.Ed.2d 164(1997).This Court issued the certificate of judgment on the direct appeal on May 13, 1997.

In September 1998, Brooks filed a petition for postconviction relief pursuant to Rule 32, Ala.R.Crim.P.¹He filed amended petitions in July 1999 and May 2000.Evidentiary hearings were held in May 2000 and in July 2000.In November 2000, the circuit court entered a detailed order denying the Rule 32 petition.This appeal followed.

In Brooks v. State,we stated the following concerning the evidence presented at Brooks's trial:

"The evidence at trial showed that the appellant and the victim met while working as counselors at a camp in New York state.On December 31, 1992, the victim's body was found under the bed in the bedroom of her apartment in Birmingham, Alabama.She had been bludgeoned to death, and she was naked from the waist down.

"On the night before the victim's body was found, a co-worker of the victim's saw the appellant enter the restaurant where they worked and saw the victim talking to the appellant.Later that night, the victim spoke with another friend by telephone; that friend heard a male voice in the background and the victim told her friend that a friend was sleeping on her living room floor.

"A DNA analysis was performed on semen found in the victim's vagina.The results were compared with the appellant's blood.There was testimony that the odds of finding another person with the same DNA as the appellant's and as found in the semen taken from the victim's body would be 1 in 69,349,000 among white persons and 1 in 310,100,000 among black persons.[Brooks is white.]A latent print of the appellant's palm was found on the victim's left ankle.A bloody fingerprint matching the appellant's was found on a doorknob in the victim's bedroom, as were two other matching latent fingerprints.The appellant's thumbprints were also found on a note in the victim's apartment.

"The evidence further showed that the appellant was seen driving the victim's car on the night of December 31 and that he told a witness that he`had to fuck that girl to get that car.'The car was found in Columbus, Georgia, where the appellant resided.Inside the car was a package of photographs with the name `Brooks, C.' on the package.When the appellant was arrested, he had in his possession the victim's car keys and her Shell Oil Company credit card, which he had used on several occasions.He had also cashed the victim's paycheck and one of her personal checks.Several items were missing from the victim's apartment and the evidence showed that the appellant had pawned these items at various pawnshops in Columbus."

695 So.2d at 178-79.

Standard of Review

Brooks is appealing the denial of his postconviction petition attacking his capital-murder conviction and his sentence of death.This Court does not apply a plain-error standard of review when reviewing a lower court's ruling on the denial of a Rule 32 petition attacking a death sentence.SeeEx parte Dobyne,805 So.2d 763(Ala.2001), andRule 45A, Ala.R.App.P.Moreover, all of the procedural bars contained in Rule 32 apply equally to all cases, even those involving the death penalty.Adkins v. State, [Ms. CR-99-0834, March 26, 2004] ___ So.2d ___, ___(Ala.Crim. App.2001)(opinion on return to third remand).

"`The standard of review on appeal in a postconviction proceeding is whether the trial judge abused his discretion when he denied the petition.'"Elliott v. State,601 So.2d 1118, 1119(Ala.Crim.App.1992)(quotingEx parte Heaton,542 So.2d 931(Ala.1989)).However, "when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo."Ex parte White,792 So.2d 1097, 1098(Ala.2001).

Moreover, this court has stated:

"The resolution of . . . factual issue[s] required the trial judge to weigh the credibility of the witnesses.His determination is entitled to great weight on appeal. . . .`When there is conflicting testimony as to a factual matter . . ., the question of the credibility of the witnesses is within the sound discretion of the trier of fact.His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence.'"

Calhoun v. State,460 So.2d 268, 269-70(Ala.Crim.App.1984)(quotingState v. Klar,400 So.2d 610, 613(La.1981)).

I.

In 1993, when Brooks was tried, the procedure established by the Alabama Supreme Court in Ex parte Jackson,598 So.2d 895(Ala.1992), was in effect.In order to raise a claim of ineffective assistance of trial counsel on direct appeal appellate counsel could move to extend the time for filing a motion for a new trial.Claims of ineffective assistance could then be presented in the motion for a new trial and reviewed on direct appeal.In 1996, the Alabama Supreme Court reversed its earlier holding in Jackson, citing as its reason the numerous procedural problems that the decision had created.Ex parte Ingram,675 So.2d 863(Ala.1996).The court specifically held that Ingram was not to be applied retroactively.675 So.2d at 865.

At trial Brooks was represented by attorneys Kenneth John Gomany and J. Scott Boudreaux.Attorney Virginia Vinson was appointed to represent Brooks on appeal.Trial counsel filed a motion for a new trial, and appellate counsel was granted leave to amend the motion under the Jackson procedure.Appellate counsel raised 11 claims of ineffective assistance of trial counsel in the amended motion for a new trial.A hearing was held on the motion, and the circuit court denied relief.Several of the claims were raised and addressed on direct appeal.As we stated in Payne v. State,791 So.2d 383, 390(Ala. Crim.App.1999), cert. denied, 791 So.2d 408(Ala.2000):

"Because Payne was represented by different counsel at trial and on appeal, any claim of ineffective assistance of trial counsel should have been raised in a motion for a new trial in order to preserve the issue for review.Ex parte Jackson[, 598 So.2d 895(Ala.1992)].Thus, the trial court correctly concluded that Payne's claims regarding ineffective assistance of trial counsel are procedurally barred by Rule 32.2(a)(3) and (a)(5)[, Ala.R.Crim.P.,] as claims that could have been, but were not, raised at trial or on appeal.SeeBryant v. State,739 So.2d 1138(Ala.Cr.App.1998);Dyson v. State,722 So.2d 782(Ala.Cr.App.1997);Hartzog v. State,733 So.2d 461(Ala.Cr.App.1997);Andersch v. State,716 So.2d 242(Ala.Cr.App.1997);Arrington v. State,716 So.2d 237(Ala.Cr.App.1997);Alexander v. State,679 So.2d 227(Ala.1996);Covington v. State,671 So.2d 109(Ala. Cr.App.1995);Alderman v. State,647 So.2d 28(Ala.Cr.App.1994)Ex parte Jackson,supra.Cf.Mason v. State,768 So.2d 981(Ala.Cr.App.1998)(applyingEx parte Jackson in a capital case);Bush v. State,695 So.2d 70, 128(Ala.Cr.App.1995), aff'd, 695 So.2d 138(Ala.), cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139 L.Ed.2d 320(1997);andBrown v. State,712 So.2d 1112(Ala.Cr.App.1997)."

See alsoBaker v. State,683 So.2d 1(Ala. Crim.App.1995);Page v. State,622 So.2d 441(Ala.Crim.App.1993).Therefore, any claims related to the performance of trial counsel are procedurally barred in this postconviction proceeding.SeeRule 32.2(a)(3) and (a)(5), Ala.R.Crim.P.

However, a Rule 32 petition is the proper means to secure review of a claim of ineffective assistance of appellate counsel.SeeBrown v. State,681 So.2d 1102(Ala. Crim.App.1996).

II.

Brooks asserts many claims in his brief to this Court relating to the performance of his appellate counsel that he did not pursue at the hearing on his Rule 32 petition.²The circuit court made the following findings concerning these issues:

"[A]lthough all of the attorneys involved in this case testified during these proceedings, Brooks did not question them about the majority of claims included in his petition.Rule 32.3 of the Alabama Rules of Criminal Procedure places the burden of proof squarely on Brooks, and Strickland [v. Washington, 466 U.S. 668(1984),] mandates that his claims be reviewed pursuant to a presumption that counsel rendered effective assistance.Therefore, where the record is unclear—either because an issue was not addressed or because counsel could not recall—the Court will presume that counsel acted in a manner consistent with the requirements of the Sixth Amendment.Such an approach to the review of Brooks's claim is required by the mandates of Strickland.SeeWilliams v. Head,185 F.3d 1223, 1236(11th Cir.1999)(stating that `where the record is incomplete or unclear about [counsel's] actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment');Chandler...