Ex parte Hays

• Citation: 518 So.2d 768
• Parties: Ex parte Henry F. HAYS. Ex parte State of Alabama. (Re Henry F. HAYS v. STATE of Alabama). (Two Cases) 85-143, 85-144.
• Decision Date: 26 August 1986
• Court: Supreme Court of Alabama

Page 768

518 So.2d 768

Ex parte Henry F. HAYS Ex parte State of Alabama (Re Henry F. HAYS v. STATE of Alabama). (Two Cases)

85-143, 85-144.

Supreme Court of Alabama.

Aug. 26, 1986.

Rehearing Denied in 85-143, Rehearing Granted in 85-144 Sept. 25, 1987.

Certiorari Granted Feb. 29, 1988.

See 108 S.Ct. 1099.

M.A. Marsal, Mobile, for petitioner/cross-respondent.

Charles A. Graddick, Atty. Gen. and Joseph G.L. Marston III, Asst. Atty. Gen., for respondent/cross-petitioner.

PER CURIAM.

This Court granted petitions for writ of certiorari filed by the state and the defendant and has consolidated them for the purposes of review.

Cross-petitioner Henry F. Hays was indicted by a Mobile County grand jury on June 22, 1983, for violation of Code 1975, § 13A-5-40(a)(1), as a result of Hays's alleged abduction and murder of Michael Donald. Trial was scheduled for December 5, 1983. On December 2, 1983, the state prosecutor requested and was granted a one-day continuance of the trial on the stated grounds that the state required additional time to obtain physical evidence for the trial that was still being tested by an out-of-state laboratory. Defense counsel consented to the continuance.

On December 5, 1983, the state prosecutor convened a grand jury, which returned a new indictment against Hays, charging him with robbery-murder under code 1975, § 13A-5-31(a)(2). The new indictment was precipitated by the state prosecutor's realization upon receiving the case on December 2 that the original indictment was flawed because the provision of Code 1975, § 13A-5-40(a)(1), under which Hays had originally been indicted, was not yet effective on the date the alleged criminal act occurred.

Hays's arraignment under the new indictment was held late in the afternoon on December 5, 1983. Under protest, Hays entered a plea of not guilty. Defense counsel vigorously objected to proceeding with the trial under the new indictment, which was scheduled for the following morning.

The following morning, defense counsel moved for a continuance in order to prepare his defense in light of the new indictment. After lengthy argument on the motion, much of which is reproduced in the opinion of the Court of Criminal Appeals, the trial judge denied the motion and the case was tried.

Although the facts in this case were adequately set out in the Court of Criminal Appeals' opinion, 518 So.2d 379, the following facts are highlighted for purposes The jury convicted Hays under the new indictment, finding him guilty of robbery-murder. After the trial judge charged the jury at the sentencing phase of the trial, the jury recommended that Hays be sentenced to life imprisonment without parole. On February 2, 1984, the trial judge held a subsequent sentencing hearing after having received a pre-sentence report, at which time he overrode the jury's recommendation and sentenced Hays to death.

of this review. On March 21, 1981, Hays and James Knowles drove through the streets of Mobile, Alabama, seeking out a black man to kill. The victim, Michael Donald, was abducted by the two men as he walked along a city street. As the three men rode in the automobile, Knowles forced Donald at gunpoint to empty his pockets. Donald placed his wallet and other contents of his pockets on the floor of the automobile. Donald was driven to a secluded area, where he was choked with a rope and beaten until he became unconscious. Hays then cut Donald's throat with a knife. Donald's body was taken back to Mobile, where Hays and Knowles hung the body from a tree with a rope.

Hays's new trial motion was overruled by the trial judge and the case was automatically appealed to the Court of Criminal Appeals.

The Court of Criminal Appeals, with two judges dissenting in part, affirmed Hays's conviction, but set aside the trial judge's death sentence and remanded the case with directions to sentence in accordance with the jury's recommendation of life without parole. The Court of Criminal Appeals subsequently extended its opinion on application for rehearing.

Both Hays and the state filed in this Court petitions for writ of certiorari to review the decision of the Court of Criminal Appeals. We granted the petitions to decide the following issues:

1. Was Hays denied his constitutional right to effective assistance of counsel by being put to trial under a new indictment that was handed down less than 24 hours prior to trial, even though he cannot demonstrate actual prejudice in the defense of the charge?

2. Under Alabama's old death penalty statute, Code 1975, § 13-11-1 through § 13-11-8, as interpreted by our decision in Beck v. State, 396 So.2d 645 (Ala.1980), may the trial judge sentence a defendant convicted of a capital offense to death when the jury recommends that the defendant be sentenced to life without parole?

3. Did the trial judge err by instructing the jury that its sentence determination was a recommendation to the court?

I.

Hays contends that the trial court's denial of his motion for continuance, under the facts of this case, denied him his constitutional right to effective assistance of counsel under the Sixth Amendment of the United States Constitution. The Court of Criminal Appeals rejected this argument because Hays failed to show any actual prejudice in the defense of his case as a result of the trial court's denial of his motion. We agree.

The United States Supreme Court in Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610, 619 (1983), recognized that:

Not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel. See Chambers v. Maroney, 399 U.S. 42, 53-54, 90 S.Ct. 1975, 1982-1983, 26 L.Ed.2d 419 (1970). Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for delay" violates the right to the assistance of counsel. Ungar v. Sarafite See also, Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Conner v. State, 447 So.2d 860 (Ala.Cr.App.1984). Furthermore, it is evident from recent Supreme Court precedent that, although certain criteria such as the time provided for the investigation and preparation of the case, counsel's experience, the gravity of the charge and complexity of defenses, and counsel's accessibility to witnesses are relevant factors to consider when evaluating effectiveness of counsel, the controlling analysis is whether the action prejudiced the accused in the defense of his or her case. See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The accused has the burden of proving prejudice by making a showing that he or she did not receive "a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). As opined in United States v. Cronic, supra:

376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).

The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted--even if defense counsel may have made demonstrable errors--the kind of testing envisioned by the Sixth Amendment has occurred.

466 U.S. at 656, 104 S.Ct. at 2045, 80 L.Ed.2d at 666.

Applying this analysis to the case sub judice, we are of the opinion that Hays has not met his burden of showing actual prejudice in the defense of the charge for which he was convicted. The trial court specifically requested that Hays's counsel explain how he would be prejudiced by the trial court's denial of his motion for continuance and counsel was unable to provide any specific example. Moreover, this Court, during oral argument, which occurred some two years after the trial, asked Hays's counsel how the defendant had been prejudiced by the trial court's action, and counsel was unable to articulate any specific example of prejudice.

After having carefully examined the facts before us that illuminate the events occurring both before and during the trial of this case, we find it improbable that the additional time for preparation requested by Hays would have changed the result of the trial. Defense counsel is a highly competent and well respected member of the criminal bar, having tried many difficult and complex cases throughout his lengthy career. Defense counsel had five months in which to prepare Hays's case for trial under the original indictment. He was aware that the original indictment was defective and that it would not support a capital offense. All incidents alleged in both indictments arose from the same occurrence and the witnesses were identical. Defense counsel had knowledge of the witnesses' identity well in advance of trial. Although defense counsel was unable to interview the witnesses in light of the new indictment prior to trial, he conducted a thorough cross-examination of each witness at the trial. The state's primary witness at trial was Hays's accomplice, James Knowles. Under either indictment, it was Knowles's testimony that was most crucial in proving facts essential to the state's case, and defense counsel conducted an extensive, probing cross-examination of this witness at trial. In summary, although there were variances in the allegations between the two indictments, they were not so different as to significantly alter the posture of the case or the proof required to establish the elements of the crime charged....