Callahan v. State

• Decision Date: 30 April 1999
• Citation: 767 So.2d 380
• Parties: James Harvey CALLAHAN v. STATE.
• Court: Alabama Court of Criminal Appeals

767 So.2d 380

James Harvey CALLAHAN v. STATE.

CR-97-1202.

Court of Criminal Appeals of Alabama.

April 30, 1999.

Rehearing Denied July 9, 1999.

Randall Scott Susskind, Montgomery, for appellant.

Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for appellee.

COBB, Judge.

On June 26, 1982, James Harvey Callahan was convicted for intentionally murdering Rebecca Suzanne Howell during the course of a first-degree kidnapping, a capital offense under § 13A-5-40(a)(1), Ala.Code 1975. On July 8, 1982, after the jury recommended that Callahan be sentenced to death by a 10-2 vote, the trial court sentenced Callahan to death. This court affirmed Callahan's conviction and sentence. Callahan v. State, 471 So.2d 447 (Ala.Cr.App.1983). The Alabama Supreme Court reversed the conviction and remanded the cause for a new trial. Ex parte Callahan, 471 So.2d 463 (Ala.1985), cert. denied, 474 U.S. 1019, 106 S.Ct. 567, 88 L.Ed.2d 552 (1985). On November 7, 1987, Callahan was again convicted of capital murder, and the jury returned an unanimous recommendation for the death penalty. On November 25, 1987, the trial court sentenced Callahan to death. This court affirmed Callahan's second conviction and sentence. Callahan v. State, 557 So.2d 1292 (Ala.Cr.App.1989). The Alabama Supreme Court affirmed the conviction and death sentence on November 17, 1989. Ex parte Callahan, 557 So.2d 1311 (Ala.1989). The United States Supreme Court denied Callahan's petition for certiorari review on October 1, 1990. Callahan v. Alabama, 498 U.S. 881, 111 S.Ct. 216, 112 L.Ed.2d 176 (1990).

On September 30, 1992, Callahan, through counsel, filed a Rule 32, Ala. R.Crim.P., petition for post-conviction relief, which he amended on March 14, 1996, and again amended on July 2, 1996. On July 1-2, 1996, the trial court conducted an evidentiary hearing on the claims of relief sought by Callahan. Judge Samuel H. Monk, the circuit judge who presided over Callahan's first and second trials, also presided over the evidentiary hearing on the Rule 32 petition. On February 17, 1998, the trial court entered an order denying Callahan's Rule 32 petition. Callahan now appeals the trial court's decision. We affirm.

The State's evidence at the 1987 trial tended to prove that Rebecca Suzanne Howell, a 26-year-old college student at Jacksonville State University, was abducted from the Norge Village Washeteria in Calhoun County, some time between 12:30 a.m. and 1:30 a.m. on the morning of February 4, 1982. Her body was found about two weeks later floating in Tallasseehatchee Creek near Broughton Bridge, where it had become entangled in some brush. An autopsy revealed that Ms. Howell had been killed by asphyxiation, consistent with smothering. Her hands had been bound with strips of white plastic duct tape, and she had apparently been raped. She was wearing blue jeans but no underpants, shoes, or socks. Callahan's truck was seen at another nearby washeteria shortly before Ms. Howell was abducted; the individual driving the truck was seen watching, approaching, and then following another lone female. A truck generally matching the description of Callahan's truck was also seen at the Norge Village Washeteria at or near the time of Ms. Howell's abduction.¹ Initially, we note that on direct appeal all issues were scrutinized, including those issues reviewable only under the "plain error" doctrine. Rule 45A, Ala. R.App.P. There is no plain error review in an appeal from the denial of a Rule 32 petition. Thompson v. State, 615 So.2d 129, 130-31 (Ala.Cr.App.), cert. denied, 615 So.2d 129 , cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 418 (1993).

I.

Callahan presents numerous claims regarding the performance of his trial counsel and appellate counsel. He contends that, as a result of the errors committed by both his trial counsel and appellate counsel, he was denied the effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution.

"In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

"`First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.'

"466 U.S. at 687, 104 S.Ct. at 2064.

"`The performance component outlined in Strickland is an objective one: that is, whether counsel's assistance, judged under "prevailing professional norms," was "reasonable considering all the circumstances."' Daniels v. State, 650 So.2d 544, 552 (Ala.Cr.App.1994), cert. denied, 488 U.S. 1051, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989), quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. `A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.' Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

"The claimant alleging ineffective assistance of counsel has the burden of showing that counsel's assistance was ineffective. Ex parte Baldwin, 456 So.2d 129 (Ala.1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). `Once a petitioner has identified the specific acts or omissions that he alleges were not the result of reasonable professional judgment on counsel's part, the court must determine whether those acts or omissions fall "outside the wide range of professionally competent assistance." [Strickland,] 466 U.S. at 690, 104 S.Ct. at 2066.' Daniels, 650 So.2d at 552. When reviewing a claim of ineffective assistance of counsel, this court indulges a strong presumption that counsel's conduct was appropriate and reasonable. Hallford v. State, 629 So.2d 6 (Ala.Cr.App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994); Luke v. State, 484 So.2d 531 (Ala.Cr.App.1985). `This court must avoid using "hindsight" to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance.' Hallford, 629 So.2d at 9. See also, e.g., Cartwright v. State, 645 So.2d 326 (Ala.Cr.App. 1994).

"`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. 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." 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, 104 S.Ct. at 2065, (citations omitted). See Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).

"`Even if an attorney's performance is determined to be deficient, the petitioner is not entitled to relief unless he establishes that "There is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Strickland,] 466 U.S. at 694, 104 S.Ct. at 2068.'

"Daniels, 650 So.2d at 552.

"`When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'

"Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, quoted in Thompson v. State, 615 So.2d 129, 132 (Ala.Cr.App.1992), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 418 (1993).

"In a Rule 32 proceeding, the petitioner has `the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.' Rule 32.3, Ala. R.Crim.P. See Fortenberry v. State, 659 So.2d 194 (Ala.Cr.App.1994), cert. denied, , 116 S.Ct. 137, 133 L.Ed.2d 84 (1995); Wilson v. State, 644 So.2d 1326 (Ala.Cr.App.1994); Elliott v. State, 601 So.2d 1118 (Ala.Cr.App. 1992)."

Bui v. State, 717 So.2d 6, 12-13 (Ala.Cr. App.1997).

Moreover, "`[a] finding of no plain error is one factor to consider when assessing the performance of ... counsel.'" Fortenberry v. State, 659 So.2d 194, 200 (Ala.Cr.App.1994), quoting Hallford v. State, 629 So.2d 6, 10 (Ala.Cr.App.1992).

Callahan initially raises the following issues regarding ineffective assistance of trial counsel during the guilt phase of his trial.

A.

Callahan alleges that he was denied effective assistance of counsel be...