Ex parte Yelder

• Decision Date: 11 January 1991
• Parties: Ex parte Timothy John YELDER. (Re Timothy John Yelder v. State). 89-1540.
• Court: Alabama Supreme Court

Page 137

575 So.2d 137

Ex parte Timothy John YELDER (Re Timothy John Yelder v. State).

89-1540.

Supreme Court of Alabama.

Jan. 11, 1991.

Arthur Parker and R.B. Jones, Birmingham, for petitioner.

Don Siegelman, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for respondent.

SHORES, Justice.

This petition for certiorari presents a case of first impression in Alabama. Yelder argues that he was denied effective assistance of counsel in that at his trial his lawyer did not object, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's use of its peremptory challenges to strike 17 of 18 black jurors. The legal standard for determining claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

"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."

466 U.S. at 687, 104 S.Ct. at 2064. See, also, Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). As to the first part of the Strickland test, the standard for attorney performance is an objective one, that is, "reasonableness under prevailing norms," 466 U.S. at 688, 104 S.Ct. at 2065, and "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." 466 U.S. at 692, 104 S.Ct. at 2067. In cases involving denial of assistance of counsel, counsel's conflict of interest, or state interference with counsel's assistance, prejudice will be presumed, id., but in all other cases, prejudice must be "affirmatively" proved. 466 U.S. at 693, 104 S.Ct. at 2067. The standard for determining prejudice is also set forth in Strickland:

"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.... In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury."

466 U.S. at 694, 695, 104 S.Ct. at 2068.

Yelder argues that an additional category under the "presumed prejudice" exception should be created: failure of trial counsel to make a timely Batson objection when a prima facie case exists of purposeful discrimination by the State in the jury selection process. In order to protect and preserve the holding of Batson (that ["p]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection," 476 U.S. at 86, 106 S.Ct. at 1717) and to bolster public confidence in the fairness of our system of justice, 476 U.S. at 87, 106 S.Ct. at 1718, we agree with Judge Bowen's dissent that it is necessary to create the suggested additional category under the "presumed prejudice" exception of Strickland. Accordingly, we reverse that portion of the judgment of the Court of Criminal Appeals that addresses the issue of effective assistance of counsel, and we remand the case to the Court of Criminal Appeals with directions to remand it to the trial court for a hearing on the Batson question.

Facts

Timothy John Yelder was convicted of rape in the first degree, a violation of § 13A-6-61, Code of Alabama 1975; burglary in the first degree, a violation of § 13A-7-5; and robbery in the first degree, a violation of § 13A-8-41. At the sentencing hearing, the trial court sentenced Yelder to life imprisonment on the rape charge, 25 years' imprisonment on the burglary charge, and 50 years' imprisonment on the robbery charge.

Yelder moved for a new trial and later amended his motion to include the ineffective assistance of counsel argument now before us. The trial court held a hearing to consider Yelder's motion and denied it. Yelder appealed to the Court of Criminal Appeals, which affirmed his convictions. See Yelder v. State, 575 So.2d 131 (Ala.Cr.App.1990). We granted Yelder's petition for writ of certiorari.

The Strickland Test and Presumed Prejudice

In his dissent, Judge Bowen correctly noted that the Strickland test for prejudice, excluding those instances of presumed prejudice, is outcome-determinative in nature; that is, it must appear that, absent the lawyer's error, there is a reasonable probability that the result of the trial would have been different. Judge Bowen correctly states that such an outcome-determinative test "is simply not the proper criterion for measuring prejudice in the context of a Batson error," and he says, "Applying this measure of prejudice to a Batson error would be, in effect, requiring the appellant to prove that, had blacks not...