Ex parte Daniel

• Citation: 459 So.2d 948
• Parties: Ex parte George DANIEL. (Re George Daniel v. State). 83-721.
• Decision Date: 31 August 1984
• Court: Alabama Supreme Court

Page 948

459 So.2d 948

Ex parte George DANIEL (Re George Daniel v. State).

83-721.

Supreme Court of Alabama.

Aug. 31, 1984.

Rehearing Denied Nov. 9, 1984.

James R. McKoon, Jr. of Ferrell & McKoon, Phenix City, for petitioner.

Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.

BEATTY, Justice.

This Court granted certiorari in this case under Rule 39(c), A.R.A.P., to determine whether or not the Court of Criminal Appeals was correct in its conclusion that petitioner was not denied competent counsel in his trial on a charge of capital homicide, § 13A-5-31(5), Code 1975, which trial occurred in November 1981. We affirm.

As the opinion of the Court of Criminal Appeals discloses, this Court had in an earlier decision granted certiorari, remanding this case to the Court of Criminal Appeals with directions to remand the case to the trial court for an evidentiary hearing on the issue of the defendant's challenge to the competency of his trial counsel and to direct the trial court to make findings of fact relating to that issue. The Court of Criminal Appeals was also directed to conduct an independent review of the trial court's findings and to make a final determination of the competency-of-counsel issue. Ex parte Daniel, 459 So.2d 942 (Ala.1982). Pursuant to that mandate, the Court of Criminal Appeals, 459 So.2d 943, remanded the cause to the trial court, and the trial court conducted the prescribed evidentiary hearing and made findings in accord therewith, holding that counsel for the defendant were competent. Those proceedings were reviewed by the Court of Criminal Appeals, which then issued an opinion upholding the trial court's judgment. Daniel v. State, 459 So.2d 944 (Ala.Crim.App.1984). Following that decision, this Court again granted certiorari.

The sole issue presented by counsel to this Court on this petition is:

"Whether or not the failure to move for an independent psychiatric examination where defendant's mental competency is in question in a death penalty case constitutes ineffective assistance of counsel to such an extent that a new trial should be held."

The opinion of the Court of Criminal Appeals sets out the findings of the trial court. These were made after a hearing conducted by that court attended by Thomas Estes, chief deputy district attorney; Larry Roney, attorney for the defendant; Ruben K. King and Curtis Bernard, counsel for the defendant at his November 1981 trial; and witnesses Lillie Daniel and Hazel Bampoe. In addition to those findings, the opinion of the Court of Criminal Appeals contains a review of the evidence adduced in the trial court, together with its conclusion based thereon,

"that the appellant in this cause was thoroughly, competently and adequately represented in a proper legal sense, and that the evidence fails to establish that the appellant was denied the 'reasonably effective' assistance of counsel as required by law."

In making this determination, the Court of Criminal Appeals applied the "farce, sham or mockery" test and also the "reasonably effective assistance of counsel" test of Harris v. Oliver, 645 F.2d 327 (5th Cir.1981).

Subsequent to the decision of the Court of Criminal Appeals on January 10, 1984, the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established guidelines for the review of claims of deficient or ineffective counsel:

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

Ibid. at 104 S.Ct. 2064. That Court added, at 2065-66:

"When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representations fell below an objective standard of reasonableness.

"More specific guidelines are not appropriate. The Sixth Amendment refers simply to 'counsel,' not specifying particular requirements of effective assistance. It relies instead on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. See Michel v. New York, 350 U.S. 91, 101-102, 76 S.Ct. 158, 163-164, 100 L.Ed. 83 (1955). The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.

"....

"... 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, 133-134, 102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783 (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. New York, supra, 350 U.S., at 101, 76 S.Ct., at 164. 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. [Citation omitted.]

"....

"Thus, 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. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."

As made clear by the United States Supreme Court, an ineffective assistance claim requires not only an unreasonable error but also prejudice to the defense:

"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365, 101 S.Ct. 665, 667-668, 66 L.Ed.2d 564 (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."

Id. at 2067. The defendant's burden was explained at 2068:

"The defendant must show 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."

This burden was amplified at 2069:

"The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel's errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death."

Involving as it does the fundamental right of counsel at trial, this case properly should be reviewed under the standards adopted in Strickland, supra, even though the conduct...