Daniels v. State

• Decision Date: 17 June 1994
• Citation: 650 So.2d 544
• Parties: John Ronald DANIELS v. STATE. CR 93-21.
• Court: Alabama Court of Criminal Appeals

Page 544

650 So.2d 544

John Ronald DANIELS v. STATE.

CR 93-21.

Court of Criminal Appeals of Alabama.

June 17, 1994.

Rehearing Denied Aug. 19, 1994.

Certiorari Denied Oct. 21, 1994

Alabama Supreme Court 1931648.

Certiorari Denied March 20, 1995.

See 115 S.Ct. 1375.

Thomas Jefferson Deen III, Mobile, and Dean A. Strang, Milwaukee, WI, for appellant.

James H. Evans, Atty. Gen., and Clayton Crenshaw, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

This is an appeal from the denial of a petition for post-conviction relief. In 1978, the appellant was convicted and sentenced to death for the murders of Ricky Brune and Cheryl Moore, a capital offense defined at that time in Ala.Code 1975, § 13-11-2(a)(10) (repealed), which made first degree murder a capital offense if two or more people were intentionally killed by one or a series of acts.

On direct appeal, this Court reversed the appellant's conviction and remanded the cause for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). See Daniels v. State, 406 So.2d 1023 (Ala.Cr.App.), cert. denied, 406 So.2d 1024 (Ala.1981). The United States Supreme Court vacated our decision and remanded the cause for further consideration in light of Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). See Alabama v. Daniels, 457 U.S. 1114, 102 S.Ct. 2920, 73 L.Ed.2d 1325 (1982).

Following the remand order of the United States Supreme Court, this Court determined that the appellant was not entitled to a new trial, and we affirmed his conviction. See Daniels v. State, 534 So.2d 628 (Ala.Cr.App.1985), affirmed, 534 So.2d 656 (Ala.1986), cert. denied, 479 U.S. 1040, 107 S.Ct. 898, 93 L.Ed.2d 850 (1987). However, we vacated the appellant's death sentence and "remand[ed] th[e] cause to the trial court with directions that the court correct its sentencing order ... and, once again, decide the appropriate punishment by reweighing the proper aggravating circumstances against the proper mitigating circumstances." Daniels v. State, 534 So.2d at 656.

On return to remand, this Court affirmed the trial court's order sentencing the appellant to death. Daniels v. State, 534 So.2d 658 (Ala.Cr.App.1987), affirmed, 534 So.2d 664 (Ala.1988), cert. denied, 488 U.S. 1051, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989). The appellant's conviction and sentence became final, for purposes of direct appeal, on January 23, 1989, when the United States Supreme Court denied certiorari review.

The appellant filed his petition pursuant to Rule 32, A.R.Crim.P., on March 20, 1990, and amended it on April 29, 1991. The circuit court held an evidentiary hearing on July 13-14, 1992, and denied all relief in an order dated September 23, 1993.

On this appeal from the denial of his Rule 32 petition, the appellant raises a number of issues that are procedurally barred from collateral review. He also raises issues concerning the ineffectiveness of counsel, which are not barred from review.

The circuit court correctly found that the appellant was procedurally barred, under to Rules 32.2(a)(2) and (4), A.R.Crim.P., from raising the following claims because they were raised or addressed at trial or on appeal:

(1) That evidence that was the fruit of an unlawful arrest was admitted against him at trial. See Daniels, 534 So.2d at 645-55.

(2) That the indictment was insufficient to charge an offense. See Daniels, 534 So.2d at 637-38.

(3) That the preclusion clause in the 1975 death penalty statute unconstitutionally prevented him from presenting evidence that he was guilty of a lesser included offense. See Daniels, 534 So.2d at 640-42.

(4) That his sentence of death was unconstitutionally imposed. See Daniels, 534 So.2d at 642-43 and at 660-61 (on return to remand).

The circuit court correctly determined that the following claims were precluded, under Rules 32.2(a)(2) and (5) because they were raised and addressed at trial and could have been but were not raised on appeal:

(1) That a prospective juror was improperly struck under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), for opposition to the death penalty.

(2) That the State failed to disclose exculpatory material in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

(3) That the appellant was denied the right to confrontation and cross-examination when hearsay testimony concerning statements made by Phillip Tomlin, a nontestifying codefendant, was admitted against him.

(4) That the misconduct of the prosecutor denied him due process of law.

(5) That there was a fatal variance between the indictment and the proof at trial.

(6) That the trial judge did not instruct the jury on all the elements of the charged offense.

The circuit court properly found that the following claims were precluded, under Rules 32.2(a)(3) and (5) because they could have been, but were not, raised and addressed at trial or on appeal:

(1) That the appellant was excluded from individual voir dire of the prospective jurors.

(2) That the State systematically struck blacks from the jury in violation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

(3) That the court wrongly charged the jury that "all witnesses are presumed to speak the truth."

(4) That the court's jury charge on reasonable doubt violated the principles of Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990).

(5) That the court's resentencing order violated Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987).

I

The appellant was represented at trial by Tom Haas, Chris Galanos, and Neal Hanley. On appeal and at resentencing, he was represented by John Bertolotti. He raises ineffective assistance of counsel claims with respect to all of these attorneys. At the hearing on the Rule 32 petition, all four of the appellant's former lawyers testified.

Tom Haas testified that he was admitted to practice law in 1953. At the time of the appellant's capital murder trial, he had been practicing law in Mobile for 25 years. He estimated that 90% of his practice was devoted to criminal defense work. R. 8-9. Haas was retained to represent the appellant by the appellant's mother. R. 10. Galanos and Hanley, both of whom were then young attorneys associated with Haas, assisted with the appellant's defense, but Haas was lead counsel and he made the strategic decisions in the case. R. 13.

Ineffective assistance of counsel claims are judged according to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on an ineffectiveness claim, the petitioner must establish both that his counsel's performance was deficient and that he was prejudiced as a result of the deficiency. Strickland, 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." 466 U.S. at 688, 104 S.Ct. at 2065.

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." 466 U.S. at 690, 104 S.Ct. at 2066. 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." 466 U.S. at 694, 104 S.Ct. at 2068.

The appellant argues that trial counsel's ineffectiveness is demonstrated by the following acts or omissions, and that appellate counsel's ineffectiveness is shown by his failure to raise the corresponding issues on appeal:

(1) Counsel failed to move for a change of venue based on pretrial publicity.

At the Rule 32 hearing, Haas testified as follows:

"Now I kept up, once I was hired in this case, with the publicity, both in the TV and on the radio.... Neal [Hanley] and Chris [Galanos] were watching it and other people were watching it and I was getting all of the papers and I did not feel--before I present something to a judge, I want to feel like I, at least, have a logical argument to make in support of it. I did not feel that the local media so inflamed the minds of the jurors in this area that the defendant, John Ronald Daniels, couldn't get a fair trial here. Had I thought so, I would have pursued that.

".... I don't just arbitrarily say, 'Let's get out of Mobile, Alabama, so we can get a fair trial,' because I am a believer in this county.... [S]ince I didn't see the type of pretrial publicity that would harm Mr. Daniels, I preferred to fight in a place where I like to fight and that's my answer to that." R. 90-91.

This Court has reviewed the transcript of the jury selection process. The record supports the circuit court's finding that "sixty jurors were called and only nineteen of those knew anything about [the case] and they were individually voir dired." R. 19. Those nineteen prospective jurors were only minimally aware of the facts of the case; each one indicated that he or she could judge the appellant's guilt strictly on the evidence presented from the witness stand. T.R. 164-86. ¹ The circuit court's determination that "[t]here was no basis for [a change of venue] in this case," R. 19, is fully supported by the records of both the trial and the post-conviction proceedings. Because the appellant "has failed to show that a fair and impartial jury could not be had in his case" in Mobile County, he has failed to establish either that counsel's performance was deficient or that he was prejudiced by his trial...