Coulter v. State, 8 Div. 408

• Decision Date: 10 June 1986
• Docket Number: 8 Div. 408
• Citation: 494 So.2d 895
• Parties: David L. COULTER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 895

494 So.2d 895

David L. COULTER v. STATE.

8 Div. 408.

Court of Criminal Appeals of Alabama.

June 10, 1986.

Rehearing Denied July 15, 1986.

Certiorari Denied Sept. 26, 1986 Alabama Supreme Court 85-1245.

Joseph A. Fawal of Fawal & Spina and Ann C. Robertson, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and John Gibbs, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

This is an appeal from the denial of a petition for writ of error coram nobis.

In 1981, David Leroy Coulter's conviction for the capital killing and robbery of George Morris and sentence of death were reversed because of a constitutional infirmity in the death penalty act under which he was prosecuted. Coulter v. State, 396 So.2d 1098 (Ala.Cr.App.1981), 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).

Coulter was retried and, after one mistrial, again convicted and sentenced to death. That conviction and sentence were upheld on appeal. Coulter v. State, 438 So.2d 336 (Ala.Cr.App.1982), affirmed Ex parte Coulter, 438 So.2d 352 (Ala.1983). There was no direct appeal of that conviction and sentence to the Supreme Court of the United States.

In July of 1984, Coulter, aided by counsel, filed a petition for writ of error coram nobis in the circuit court of Colbert County in an apparent effort to exhaust his state remedies so that he could seek federal habeas corpus relief. After the circuit judges of Colbert County recused themselves at Coulter's request, Judge Joseph A. Colquitt of the circuit court of Tuscaloosa County was appointed to hear the coram nobis petition. An evidentiary hearing was held and the petition was denied in July of 1985.

In denying the petition, Judge Colquitt issued a "memorandum opinion" in which he made extensive findings of fact. This opinion addressed all fifteen claims raised in the coram nobis petition. A number of these claims were found to be barred procedurally to coram nobis review because they had already been decided on direct appeal, because they could have been but were not raised on direct appeal, or because they were not raised on appeal after having been raised at trial. Some claims were denied on their merits and some claims were found to be both without merit procedurally and substantively.

The findings of fact by Judge Colquitt are supported by the record. His application of the law to the facts is sound and based on well-settled and long accepted principles. We adopt his opinion as our own and attach it to this opinion as Appendix I.

The judgment of the circuit court denying Coulter's petition for writ of error coram nobis is affirmed.

AFFIRMED.

All Judges concur.

APPENDIX 1

CASE NO. CC 78-53

IN THE CIRCUIT COURT OF COLBERT COUNTY, ALABAMA

MEMORANDUM OPINION

The Court, after hearing all the evidence and considering the parties' proposed findings of fact and conclusions of law, enters the following findings:

CLAIM ONE: The Beck v. State, 396 So.2d 645 (Ala.1980), Claim.

1. No evidentiary hearing was held on this claim because it was raised and decided on direct appeal. Coulter v. State, 438 So.2d 336, 342-343 (Ala.Crim.App.1982), affirmed, 438 So.2d 352 (Ala.1983). This claim is, thus, barred because coram nobis does not lie to relitigate issues raised and decided on direct appeal. E.g., Bass v. State, 417 So.2d 582, 584 (Ala.Crim.App.), cert. denied, 417 So.2d 588 (Ala.1982); Summers v. State, 366 So.2d 336, 340 (Ala.Crim.App.1978), cert. denied, 366 So.2d 346 (Ala.1979); see, Dobard v. State, 455 So.2d 281, 283 (Ala.Crim.App.1984).

CLAIM TWO: The Attorney's Fees and Expense Reimbursement Inadequacy Claim.

2. This claim is barred from coram nobis review because coram nobis does not lie to review claims that could have been raised at trial and on direct appeal but were not. E.g., Ex Parte Ellison, 410 So.2d 130, 132 (Ala.1982); Ex Parte Rudolph, 276 Ala. 392, 393, 162 So.2d 486, cert. denied, 377 (U.S. 919 [84 S.Ct. 1185, 12 L.Ed.2d 188] 1964); Summers v. State, 366 So.2d 336, 339-340 (Ala.Crim.App.1978), cert. denied, 366 So.2d 346 (Ala.1979); see, Dobard v. State, 455 So.2d 281, 283 (Ala.Crim.App.1984); Magwood v. State, 449 So.2d 1267, 1268 (Ala.Crim.App.1984).

3. Further, as an alternative to a finding that coram nobis review is barred, the following facts can be found from the testimony and exhibits presented at the hearing:

(a) In paragraphs 12 and 13 of the Petition, Petitioner alleged that his appointed trial counsel lacked sufficient funds with which to defend him. Petitioner specifically alleged that the lack of funds for expenses prevented Petitioner's mother and sister from being brought to Alabama to testify at his sentencing. He further alleged that trial counsel did not investigate and present evidence concerning Petitioner's emotional stress, resulting from his experience as a Marine, because they lacked funds.

(b) In support of this claim, Petitioner presented his testimony and that of James Marks. Neither the testimony of James Marks nor that of Petitioner supported his claim.

(c) James Marks was one of two lawyers appointed to represent Petitioner at his third trial. Marks had also been appointed to assist Bryce Graham at Petitioner's second trial, in which a mistrial was declared. Marks' role at the third trial was to assist a more experienced criminal defense attorney, Carl Stolsworth, who is since deceased.

(d) Marks has been licensed to practice law in the State of Alabama since 1978. At the time of Petitioner's second and third trials, Marks had never been solely responsible for a felony criminal trial but had sat in on at least one felony trial.

(e) Stolsworth was appointed to represent Petitioner from a roll of Colbert County attorneys who met the statutory five years experience requirement, Code of Alabama 1975, § 13-4-8. He had a general practice in Tuscumbia and did a considerable amount of criminal defense work. He had a good reputation as a criminal defense attorney.

(f) Marks' testimony did not support Petitioner's claim that a lack of funds hampered his defense. Both Marks and Stolsworth read a copy of the transcript from Petitioner's first trial in preparation for the third trial. Marks had also prepared for and attended the mistrial and had discussed both the mistrial and the first trial with Stolsworth before the third trial. Marks also either interviewed prosecution witnesses before the third trial or had their prior testimony. Marks could not think of any specific thing that would have been done at Petitioner's last trial that was not done even if trial counsel had had unlimited funds available to them.

(g) Marks was present when Stolsworth and Petitioner discussed using Petitioner's Marine Corps record as evidence at the sentencing stage of his trial. Stolsworth did not want to use the records because of the various disciplinary charges against Petitioner contained in the records.

(h) Marks discussed bringing Petitioner's family down for the third trial with Petitioner. He told Marks not to bring them down.

(i) Trial counsel introduced a petition from residents of Hastings, Minnesota, Petitioner's hometown, at the sentencing stage of Petitioner's third trial. (R. ¹ 310-312, 550-553). In her sentencing Order, the trial judge found that the Petitioner had established his good character before the charged offense. (R. 423-428, 502-506).

(j) From the transcripts of Petitioner's trials, it is apparent that Stolsworth chose to use Petitioner's religious conversion, and his good character since that conversion, as mitigation. The testimony of Petitioner's family had not been successful at his first trial. Stolsworth clearly made a strategic choice to proceed differently at Petitioner's third trial. He knew that there were a number of local citizens willing to testify that Petitioner was a changed man. (R. 313-324, 373-405).

(k) Based on their testimony at the first trial, (F.R. ² 403-418), Petitioner's mother and sister would only have testified to his good character before joining the Marine Corps. Stolsworth was able, through the use of the Hastings petition, to establish, in addition to his religious conversion, Petitioner's good character and reputation in his hometown before he entered the Marine Corps.

(1) Petitioner's testimony did not support his contention that he was denied effective assistance of counsel because of inadequate attorney's fees and expenses. He never asked either James Marks or Carl Stolsworth to bring his family to Tuscumbia. He never asked either of his lawyers if they had any money to assist his family in traveling to Tuscumbia. Even if Petitioner had asserted that he wanted his family to testify at this trial and had requested that his lawyers seek to obtain their presence, his lawyers were not ineffective and Petitioner was not prejudiced by their non-appearance since his lawyers were able to establish Petitioner's good character before the offense through other means.

(m) Trial counsel did not forego evidence of Petitioner's experience in the Marine Corps because of insufficient funds to produce witnesses. Counsel made a strategic decision after reviewing Petitioner's Marine Corps record not to use such testimony because of the demotion and disciplinary actions contained in those records.

(n) Trial counsel did not forego the testimony of Petitioner's mother and sister because there was no money to pay for transporting them to Tuscumbia. Trial counsel made a strategic decision to travel on Petitioner's religious conversion as mitigation.

(o) Petitioner's defense was not hampered by insufficient funds. Based on the evidence presented to her by trial counsel at the third trial, the trial judge found that Petitioner had established his good character before committing the charged offense. (R. 426) Petitioner was not prejudiced by the absence of his mother and sister. Trial counsel made reasonable...