Davis v. State

• Decision Date: 04 April 2008
• Docket Number: CR-03-2086.
• Citation: 9 So.3d 539
• Parties: Jimmy DAVIS, Jr. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

9 So.3d 539

Jimmy DAVIS, Jr. v. STATE of Alabama.

CR-03-2086.

Court of Criminal Appeals of Alabama.

April 4, 2008.

Rehearing Denied June 13, 2008.

William F. Abrams and Nicole Townsend Bartow, Palo Alto, California; Jack Lahr and Joy L. Langford, Washington, D.C.; and Richard Lee Sharff, Jr., Birmingham, for appellant.

Troy King, atty. gen., and Corey L. Maze, asst. atty. gen., for appellee.

Lisa Borden and Anne Wohlfeld, Birmingham, for amici curiae National Association of Social Workers and its Alabama Chpapter, for the appellant.

After Remand from the Alabama Supreme Court

WELCH, Judge.

The appellant, Jimmy Davis, Jr., appeals the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim.P., in which Davis attacked his 1993 capital-murder conviction and sentence of death. We affirmed the circuit court's denial of Davis's Rule 32 petition. See Davis v. State, 9 So.3d 514 (Ala.Crim. App.2006). On certiorari review the Alabama Supreme Court reversed in part this Court's decision after finding that we had erroneously applied the procedural default grounds in Rule 32(a)(3) and (5), sua sponte, to bar Davis's claims that his trial counsel's performance was ineffective. See Ex parte Davis, 9 So.3d 537 (Ala. 2007). The Supreme Court remanded the case for this Court to consider the merits of Davis's ineffective-assistance-of-counsel claims that were raised in Davis's brief.

The facts surrounding the robbery/murder are relevant in addressing the issues raised in Davis's brief to this Court. This Court set out the following facts in our opinion on Davis's direct appeal:

"The state's evidence showed that on March 17, 1993, the appellant, Alphonso Phillips, and Terrance Phillips made plans to rob the Direct Oil Station, a gasoline service station in Anniston. According to the plan, the appellant, who possessed a .25 caliber semiautomatic pistol, would point the pistol at the station operator, Alphonso would grab the money, and Terrance would act as a lookout. The state's evidence supports the conclusion that the appellant was the principal actor in the conspiracy. He conceived the idea to rob the station and he recruited the others to help him. As the trio approached the station, Terrance changed his mind, abandoned the conspiracy, and walked away. Alphonso and the appellant approached the station; the appellant confronted the operator, Johnny Hazle, in the doorway of the station, pointed the pistol at him, and said, `Give it up, fuck-nigger.' The appellant almost immediately fired two shots from the pistol, which struck Hazle in the chest and abdomen. Terrance testified that he was about a block from the station, walking toward his home, when he heard two or three shots fired. After the shooting, the appellant and Alphonso ran from the scene. Hazle died from these wounds shortly thereafter. Three empty .25 caliber shell casings were recovered at the scene, and two bullets of the same caliber were recovered from Hazle's body. The pistol was subsequently recovered. The ballistics evidence showed that the two bullets recovered from Hazle's body and the three empty shell casings found at the scene had been fired from the appellant's pistol. Alphonso and Terrance entered into agreements with the state pursuant to which in return for their testimony against the appellant they would be permitted to plead guilty to conspiracy to commit robbery in the first degree.

"Alphonso, testifying for the state, stated that as he and the appellant reached the door of the station, the appellant pointed the pistol at Hazle and said, `Give it up, fuck-nigger'; that Hazle looked inside the store and smiled; and that the appellant shot Hazle when he smiled. Several witnesses for the state testified that the appellant told them shortly after the shooting that he had shot the Direct Oil Station operator. In his testimony, Terrance described his conversation with the appellant as follows:

"`He [the appellant] said he had told him [the operator], "Give it up, fuck-nigger." And then he said the man had smiled or something at him, laughed or something. And then he said he had shot and the man had kicked the door. And then he shot again. I don't know — I can't remember how many times he said he shot. And then he said they ran.'

"Alphonso testified as follows: `[The appellant] said, "Man, I shot that fuck-nigger, I shot him." And then he said, "The second time felt even better than the first time."' Willie James Smith, an acquaintance of the appellant, testified, `[The appellant] ... told me he had shot someone ... [a]nd told me he had robbed Direct and shot someone.' Smith also testified that the appellant told him that Alphonso and Terrance were with him and that the appellant `said that the man wouldn't give up the money, so he shot him three times.' Shannon Hardy Wilson, another acquaintance of the appellant, testified as follows about his conversation with the appellant:

"`Before they got in there, he said they pulled up their bandannas and they went in there. And when he got to the door [the appellant] said, "Give it up." And that Mr. Hazle laughed at him and that Alphonso ran. And then he said he told him to give it up again. And he said Mr. Hazle laughed at him and then he shot him.'

"Wilson further testified that the appellant said he `wasn't going to let no cracker laugh at him.'

"The appellant did not testify and called only one witness in the guilty phase, Tim Whatley, an investigator with the Anniston police department, who testified as to his observations at the scene of the crime shortly after the shooting and the description of the fleeing suspects he obtained from witnesses at or near the scene. The appellant's defense strategy consisted mainly of trying to discredit or to cast doubt upon the testimony of the state's witnesses through cross-examination and arguments to the jury and to the trial court. By these means, he attempted to exploit differences as to some details in their testimony, attempted to persuade the jury that under the facts it was more likely that Alphonso did the shooting, argued to the jury and to the trial court that the facts surrounding the commission of the crime better fit the elements of the lesser included offense of felony-murder rather than with the offense of capital murder, and attempted to cast doubt upon the veracity of Alphonso, Terrance, and Smith (who was involved with the authorities in an unrelated case) by emphasizing the deals they had made with the state for lenient treatment in return for their testimony."

Davis v. State, 718 So.2d 1148, 1155 (Ala. Crim.App.1995) (footnote omitted).

Standard of Review

When reviewing a circuit court's denial of a Rule 32 petition we apply an abuse-of-discretion standard. Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App. 1992). On direct appeal we reviewed Davis's trial proceedings for plain error. See Rule 45A, Ala.R.App.P. However, the plain-error standard of review does not apply in Rule 32 petitions. Hill v. State, 695 So.2d 1223 (Ala.Crim.App.1997); Neelley v. State, 642 So.2d 494 (Ala.Crim.App. 1993).

This postconviction proceeding was initiated by Davis. According to Rule 32.3, Ala.R.Crim.P., Davis has the "burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief."

Moreover, when reviewing claims of ineffective assistance of counsel, we apply the standard announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner must show: (1) that counsel's performance was deficient; and (2) that the petitioner was prejudiced by the deficient performance.

"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. Cf. Engle v. Isaac, 456 U.S. 107, 133-34 (1982). 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.' See Michel v. Louisiana, [350 U.S. 91], at 101 [(1955)]. 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."

466 U.S. at 689, 104 S.Ct. 2052. As the United States Supreme Court further stated:

"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."

466 U.S. at 690-91, 104 S.Ct. 2052. This Court has noted that

"`[t]he purpose of ineffectiveness review is not to grade counsel's performance. See Strickland [v. Washington], 104 S.Ct. [2052] at 2065 [(1984)]; see also White v. Singletary, 972...