Cochran v. State, 6 Div. 726

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: BOWEN
• Citation: 548 So.2d 1062
• Decision Date: 17 March 1989
• Docket Number: 6 Div. 726
• Parties: James Willie COCHRAN v. STATE.

Page 1062

548 So.2d 1062 James Willie COCHRAN
v.
STATE. 6 Div. 726. Court of Criminal Appeals of Alabama. March 17, 1989.
Rehearing Denied April 28, 1989.
Certiorari Denied July 14, 1989
Alabama Supreme Court 88-1002.

Page 1063

Richard S. Jaffe of Jaffe, Burton & Digiorgio, Birmingham, and Joel Sogol of Sogol and Chandler, Tuscaloosa, for appellant.

Don Siegelman, Atty. Gen., and John Gibbs, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is an appeal from the denial of a petition for post-conviction relief.

In 1982, James Willie Cochran was convicted of capital murder and sentenced to death. That conviction and sentence were ultimately affirmed on appeal. Cochran v. State, 500 So.2d 1161 (Ala.Cr.App.1984), affirmed in part, reversed in part, and remanded Ex parte Cochran, 500 So.2d 1179 (Ala.1985), affirmed on return to remand, Cochran v. State, 500 So.2d 1188 (Ala.Cr.App.1986), affirmed, Ex parte Cochran, 500 So.2d 1064 (Ala.1986), cert. denied, Cochran v. Alabama, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 537 (1987).

In 1987, Cochran filed a petition for post-conviction relief under Rule 20, A.R.Cr.P.Temp. After an evidentiary hearing, the petition was denied. On this appeal from that denial, Cochran raises three issues.

I

Cochran contends that his constitutional rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), were violated because the prosecution used its peremptory jury strikes in a racially discriminatory manner. He also contends that appellate counsel was ineffective for failing to raise this issue on direct appeal.

Resolution of the issues presented on this appeal requires a review of the entire history of this case. Cochran was initially tried in August of 1977. He was represented by attorneys Mike McCormick and John Carroll. A mistrial was granted during the trial of that case. Cochran, 500 So.2d at 1165, 1181. On February 28, 1977, before that trial, Cochran filed a "motion to restrict prosecutorial strikes" which requested that "the District Attorney and his staff be restricted from using their peremptory strikes in a racially biased manner and in the alternative that the District Attorney and his staff not be allowed to use the peremptory strikes." On March 25, 1977, Cochran filed a "challenge to composition of petit jury" alleging, among other things, the systematic exclusion of blacks from the jury rolls. This motion was denied on April 18, 1977, with the comment: "Motion is overruled. Should defendant wish to take testimony on the motion, the Court will reconsider this ruling." We have examined the record of that 1977 trial and find that it contains no request by Cochran to take testimony on this motion. No evidence was presented in any form that, prior to Cochran's trial, the State had engaged in the systematic exclusion of black venire persons. At the trial, there was no objection raised to the prosecution's use of its peremptory challenges.

Cochran was reindicted on October 7, 1977. He was convicted on February 3,

Page 1064

1978, and sentenced on March 20, 1978. At his second trial, Cochran was again represented by attorneys Carroll and McCormick. On March 31, 1981, that conviction and sentence were reversed on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980). Cochran v. State, 400 So.2d 435 (Ala.Cr.App.), cert. denied, 400 So.2d 435 (Ala.1981).

Cochran was tried again, the third time, and convicted in March of 1982. At his third trial, Cochran was represented by attorneys Mike McCormick and Robert Shields. This is the trial and conviction which is the subject of Cochran's petition for post-conviction relief.

The record of that 1982 trial shows that at the conclusion of the voir dire of the jury and before the actual striking of the jury began, the following occurred:

"MR. MCCORMICK [Defense Counsel]: Your Honor, I was trying to recall, going back to the record again--

"THE COURT: Okay.

"MR. MCCORMICK: --wasn't there a motion regarding restricting the State from arbitrarily striking blacks in this case?

"THE COURT: I'm sure there was.

"MR. MCCORMICK: I don't recall.

"THE COURT: I don't really know. It's been so long I've forgotten, but it seems to me there was every motion conceivable to the mind of man, but I couldn't tell you for sure.

"MR. MCCORMICK: Well, we'd like to renew that motion at this time and make it more specific. If it hasn't been filed in the past--

"THE COURT: You can put it on the record. I think it would be wise to do it.

"MR. MCCORMICK: We move at this time to have His Honor restrict the State from arbitrarily striking blacks from the jury, particularly in light of the fact that our last count out of the 42 people in the room on the venire there are only nine blacks.

"THE COURT: I was thinking there were ten.

"MR. MCCORMICK: There may be ten. I may have miscounted, Judge.

"THE COURT: I think the last one, the last extra juror that went on, was a black. But I'm not sure of that. It's nine or ten. There were two blacks on the extra panel. And one is off now because she took the place of a man that was sitting in that box on the first box.

"Well, I'll just say this. I won't grant that motion, but we'll have to be guided by the well-known Alabama-McSwain ¹ [sic] case on peremptory strikes. Is that the one?

"MR. BARBER [Assistant District Attorney]: Yes, sir. Are you talking about the one that came out last month?

"THE COURT: No. I'm talking about as old as the hills.

"MR. BARBER: Okay. Well, there was another one last month.

"THE COURT: And there was a brand new one from Pennsylvania because I gave it to Earl Morgan when he came down and asked me about the Louisiana case ² on peremptory strikes. I'm just going to be guided by the cases or my idea what the cases were--are. And just assume at this moment that they aren't arbitrarily going to strike them.

"Okay. Are you all ready to strike or do you want some more time?

"MR. MCCORMICK: We need some time to go over it, Judge.

"THE COURT: Okay. Take your time."

After the jury was selected, there was no objection to the State's use of its peremptory strikes. In fact, nowhere in any of the voluminous records of Cochran's trials has this Court found any objection to the manner

Page 1065

in which the State actually exercised its peremptory challenges. On direct appeal, Cochran did raise the issue that the trial judge erred in excusing a juror for cause. Cochran, 500 So.2d at 1166, 1183-84.

In the "order on imposition of death sentence" dated April 2, 1982, the trial judge noted: "This case was heard before a jury of nine white females and two white males and one black male, totaling twelve. Two extra jurors (one black and one white female) were excused when jury retired, their names being drawn by chance out of the fourteen by the defendant personally." The trial judge also noted in this order:

"The striking part of this trial was the handling of this case by the respective lawyers, who already had outstanding reputations for courtroom ability, knowledge of the law and integrity. At no time was an attempt made by the State or Defense to emotionally infect the jury with prejudice, passion or other arbitrary factors in arriving at either verdict.

"In qualifying, the Court queried the prospective jurors as to bias or prejudice and its influence on their verdict. They responded in the negative by their silence. This Court paid strict attention to any vestige of arbitrary factors or prejudice or bias and found none present in this five day trial."

Cochran appealed his 1982 conviction. On appeal Cochran was represented by Attorney Richard Jaffe. On January 6, 1986, his case was remanded to the circuit court with directions that a new sentencing hearing be held. Cochran, 500 So.2d at 1188. Return to Remand was made on March 19, 1986. On March 26, 1986, Attorney Joel Sogol was appointed as co-counsel to Attorney Jaffe in representing Cochran. Cochran's appellate counsel filed their brief on return to remand on April 22, 1986. Batson was decided on April 30, 1986.

This Court affirmed Cochran's conviction and sentence in May of 1986. Cochran, 500 So.2d at 1188. Our Supreme Court affirmed that decision in November of 1986. Cochran, 500 So.2d at 1064. In June of 1986, the United States Supreme Court "conclude[d] that our decision in Batson should not be applied retroactively on collateral review of convictions that became final before our opinion was announced." Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986). In December of 1986, the Alabama Supreme Court decided that Batson was to be given retroactive application. Ex parte Jackson, 516 So.2d 768, 770-772 (Ala.1986). In January of 1987, the United States Supreme Court held that Batson was to be applied retroactively to all cases, state or federal, pending on direct review or not yet final. The United States Supreme Court denied certiorari in Cochran's case on April 27, 1987. Cochran, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 537 (1987). Under these facts, Cochran's judgment of conviction was not final when Batson was announced. Allen v. Hardy, 478 U.S. at 258 n. 1, 106 S.Ct. at 2880 n. 1; Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). "By 'final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. at 712 n. 6. Cochran had approximately one year after Batson had been decided in which to raise that issue on direct appeal. However, it was never raised.

In his 1987 petition for post-conviction relief, Cochran did not raise any Batson issue. However, an amendment to that petition, filed February 1, 1988, contained the following allegation:

"Petitioner's rights were violated when the State struck all...