Davis v. State, CR-96-1093

CourtAlabama Court of Criminal Appeals
Citation720 So.2d 1006
Docket NumberCR-96-1093
PartiesTimothy C. DAVIS v. STATE.
Decision Date06 March 1998

Page 1006

720 So.2d 1006
Timothy C. DAVIS
Court of Criminal Appeals of Alabama.
March 6, 1998.
Rehearing Denied May 8, 1998.
Certiorari Denied Aug. 14, 1998
Alabama Supreme Court 1971511.

Page 1011

Charlotta Norby and Stephen B. Bright, Atlanta, Georgia; and Bernard Harcourt, Cambridge, Massachusetts, for appellant.

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


On June 13, 1980, the appellant, Timothy C. Davis, was convicted of capital murder for killing Avis Alford and was sentenced to death by electrocution. Initially, we reversed the judgment of the trial court, ordering a new trial on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Davis v. State, 408 So.2d 532 (Ala.Cr.App.1981), cert. denied, 408 So.2d 533 (Ala.1982). The United States Supreme Court vacated that decision and remanded the case to this court for further consideration in light of Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). On remand, we reinstated the appellant's conviction and sentence of death. Davis v. State, 554 So.2d 1094 (Ala.Cr.App.1984). The relevant facts of the case and the sentencing order are included in that opinion, which the Alabama Supreme Court affirmed. Ex parte Davis, 554 So.2d 1111 (Ala.1989). The appellant's application for a rehearing was denied. See Ex parte Davis, 569 So.2d 738 (Ala.1990). The United States Supreme Court denied the appellant's petition for certiorari review on February 25, 1991, see Davis v. Alabama, 498 U.S. 1127, 111 S.Ct. 1091, 112 L.Ed.2d 1196 (1991), and this court issued a certificate of judgment on October 16, 1990.

On February 12, 1992, the appellant, through counsel, filed a Rule 32, Ala. R.Crim. P., petition for post-conviction relief, which he subsequently amended. The State responded, arguing that the issues either lacked merit or were precluded. On September 1, 1995, the trial court conducted an evidentiary hearing during which it heard testimony and at which the parties submitted various depositions as additional evidence. By order dated January 31, 1997, the trial court denied the petition, finding as follows:

"The petition for relief from sentence was brought by the Petitioner, who is subject to a sentence of death which was imposed by this Court on July 14, 1980.

"After a consideration of the hundreds of trial exhibits, the hundreds of pages of transcript, the pleadings, the evidence presented, and argument of counsel, the Court hereby FINDS and ORDERS as follows:

"1. Petitioner's claims with regard to the following issues as contained in the petition are due to be denied as being procedurally barred from review because they could have been raised at trial or on appeal but were not:

"Failure to Present Defendant in Court Promptly after Arrest; Denial of a Fair and Impartial Judge; Failure to Disqualify Assistant Prosecutor; Improper Juvenile Transfer Hearing; Youthful Offender Application Denial Improper; Failure to Disclose Defendant's Statements; Improper Denial of Change of Venue; Improper Denial of Discovery Motion; Illegal Excuse of Jurors Outside Defendant's Presence; Inadequate Voir Dire; Jurors Told Defendant Was in Custody; Improper In-Court Identification; Fourth Amendment Violation; Involuntary and Unreliable Statements Obtained without Voluntary Waiver of Miranda Rights; Use of Illegally Obtained Statements; Failure to Instruct on Lesser Included Offenses; Improper Reasonable Doubt Instruction; Failure to Guide Jury in Determining Whether Death Penalty Appropriate; Failure to Instruct on Circumstantial Evidence; Unreliable Psychological Testing; Improper Use of Mental Health Records; Pre-Sentence and Mental Health Records Contained Illegally Obtained Statements; Failure to Consider Non-Statutory Mitigating Circumstances; Failure to Find and Consider Certain Statutory Mitigating Circumstances;

Page 1012

Improper Application of Aggravating Circumstances; Death Sentence Disproportionate; Incomplete Record; Unconstitutional Method of Execution; Conflict of Interest by Virtue of Former District Attorney being Allowed to Perform Judicial Function; Prosecutorial Misconduct in Opening Statements; Illegal Search of Davis' Home; Failure to Allow Davis an Opportunity to Allocute Prior to Imposition of Sentence; Use of Forensic Evidence; and Denial of Due Process and Equal Protection.

"2. Petitioner's claims as to ineffective assistance of counsel contained in the petition are due to be denied because the petitioner has not met the burden of proof regarding any of the following alleged failures on counsels' part, to-wit:

"To Move to Recuse the Juvenile Court Judge Who had a Conflict of Interest; To Move to Disqualify the Special Prosecutors Appointed by the Court to Represent the Victim's Family and Prosecute the Case on Behalf of the State; To Move to Disqualify the Assistant District Attorney Who had a Conflict of Interest and Whose Participation in the Prosecution of the Case Prejudices Mr. Davis; To Present Sufficient Evidence in Support of Mr. Davis' Motion for a Change of Venue; to Conduct a Sufficiently Thorough Voir Dire of Potential Jurors; To Move to Exclude the Improper and Prejudicial In-Court Identification of Mr. Davis by One of The State's Key Witnesses; To Investigate the Background and Prior Convictions of Curtis Smith; To Investigate the Circumstances of Highly Incriminating Statements Allegedly Given by Mr. Davis to a Juvenile Detainee in Savannah, Georgia, Unreasonably Failed to Move to Exclude Such Statements, and Unreasonably Failed to Investigate the Criminal History Background and Law Enforcement Connections of that Witness; To Request Instructions on Lesser Included Offenses; To Object to the Court's Improper Reasonable Doubt Instruction; To Object to the Conflict of Interest Created by Allowing the Former District Attorney to Perform Judicial Functions in the Case; To Object to the Prosecutorial Misconduct in Opening Statement; To Object to the Illegal Search of Mr. Davis' Home and Unreasonably Failed to Seek Suppression of Illegally Obtained Evidence; To Challenge the Forensic Evidence Presented at Trial; and To Present Compelling Mitigating Evidence.

"The Court finds that counsel for Petitioner were not professionally unreasonable, nor has petitioner proven to a reasonable probability that, but for errors of counsel, a different result as to judgment, sentence or appeal would have occurred.

"3. Petitioner's claims with regard to the following issues are denied as being raised or addressed on appeal:

"Denial of a Fair and Impartial Judge; and the Failure to Present the Defendant in Court Promptly After his Arrest.

"4. Petitioner's claim that the State's failure to disclose favorable or exculpatory evidence with regard to Tracy Bignault and Curtis Smith is a violation of the due process requirements of state and federal law is due to be denied because the petitioner has failed to establish that the evidence in question was material or that it is reasonably probable that the disclosure of such evidence would have changed the result of the trial.

"Accordingly, Petitioner's petition for relief is Denied."

This appeal followed the denial of the petition.

The appellant raises numerous issues on appeal, including substantive claims alleging errors in his trial and claims that his trial and appellate attorneys were ineffective. In reviewing the trial court's denial of the appellant's petition, we are guided by the following principles.

" ' "[T]he plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence." Thompson v.

Page 1013

State, 615 So.2d 129 (Ala.Cr.App.1992).' Cade v. State, 629 So.2d 38, 41 (Ala.Cr.App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994).

"In addition, '[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.' State v. Tarver, 629 So.2d 14, 19 (Ala.Cr.App.1993)."

Brownlee v. State, 666 So.2d 91, 93 (Ala.Cr.App.1995).

"To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

" 'The appellant must show that his counsel's performance was unreasonable, considering all of the attendant circumstances.... "[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.'

"Duren v. State, 590 So.2d 360, 362 (Ala.Cr.App.1990), aff'd. 590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992).

"When this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App.1985). The burden is on the appellant to show that his counsel's conduct was deficient. Luke.

" '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...

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