George v. State
Decision Date | 11 January 2019 |
Docket Number | CR-15-0257 |
Citation | 333 So.3d 1022 |
Parties | Larry Donald GEORGE v. STATE of Alabama |
Court | Alabama Court of Criminal Appeals |
Alabama Supreme Court 1180511
*Note from the reporter of decisions: Judge Vinson, circuit judge, Jefferson County, was appointed to preside over this case.
Deanna L. Weidner and David B. Anderson, Birmingham, for appellant.
Luther Strange and Steve Marshall, attys. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.
The appellant, Larry Donald George, appeals the circuit court's partial summary dismissal and partial denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his capital-murder convictions and sentences of death.
In 1994, George was convicted of two counts of murder made capital because two people were killed as the result of one course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975, and because the murders occurred during the course of a burglary, see § 13A-5-40(a)(4), Ala. Code 1975. George was also convicted of attempted murder, see § 13A-4-2 and § 13A-6-2, Ala. Code 1975. By a vote of 10-2, the jury recommended that George be sentenced to death; the trial court accepted the jury's recommendation and sentenced George to death on the capital-murder convictions. The trial court also sentenced George to life imprisonment on the attempted-murder conviction. This Court affirmed George's convictions but remanded the case with instructions that the trial court hold a new penalty-phase hearing and reevaluate its imposition of the death penalty. George v. State, 717 So.2d 827 (Ala. Crim. App. 1996). On certiorari review, the Alabama Supreme Court reversed this Court's judgment and remanded the case with instructions that the death penalty be reinstated. George v. State, 717 So.2d 844 (Ala. 1996). On remand from the Alabama Supreme Court, this Court addressed George's remaining penalty-phase issues on appeal and affirmed George's death sentences. George v. State, 717 So.2d 849 (Ala. Crim. App. 1997). The Alabama Supreme Court subsequently affirmed this Court's decision. Ex parte George, 717 So.2d 858 (Ala. 1998). The United States Supreme Court denied certiorari review. George v. Alabama, 525 U.S. 1024, 119 S.Ct. 556, 142 L.Ed.2d 462 (1998).
In our opinion affirming George's convictions, we set out the facts of the crime as follows:
On November 19, 1999, George timely filed the instant Rule 32 petition, raising several claims, including claims of ineffective assistance of trial counsel.2 On February 4, 2000, the State filed an answer and on February 7, 2000, a motion to summarily dismiss those claims in George's petition the State believed were subject to the procedural bars in Rule 32.2(a), Ala. R. Crim. P., and were insufficiently pleaded under Rule 32.6(b), Ala. R. Crim. P. On July 7, 2005, George filed an amended petition in which he reasserted the claims raised in his original petition. On October 20, 2005, the State filed an answer and a motion to summarily dismiss those claims in George's petition the State believed were subject to the procedural bars in Rule 32.2(a), insufficiently pleaded under Rule 32.6(b), and presented no material issue of fact or law. On February 2, 2006, the circuit court granted the State's motions and summarily dismissed several of the claims in George's petition.
Following several continuances at the request of both parties, the circuit court set a hearing for July 25, 2011, to consider George's Rule 32 claims that had survived summary dismissal. On July 5, 2011, George moved to amend his amended petition to clarify existing claims that had not been dismissed. On July 25 and 26, 2011, the circuit court conducted an evidentiary hearing on George's remaining Rule 32 claims. The parties then submitted the deposition testimony of Dr. Glen King, testifying on behalf of the State, and Dr. Bryan Hudson, testifying in rebuttal on behalf of George.
On October 23, 2015, the circuit court issued an order denying George's claims. On November 20, 2015, George filed a postjudgment motion to reconsider the circuit court's judgment; the court denied the motion by written order on November 30, 2015.
"On direct appeal we reviewed the record for plain error; however, the plain-error standard of review does not apply to a Rule 32 proceeding attacking a death sentence." Ferguson v. State, 13 So.3d 418, 424 (Ala. Crim. App. 2008). See also Mashburn v. State, 148 So.3d 1094, 1104 (Ala. Crim. App. 2013).
Wilkerson v. State, 70 So.3d 442, 451 (Ala. Crim. App. 2011).
"[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). Also, "where a trial court does not receive evidence ore tenus, but instead makes its judgment based on the pleadings, exhibits, and briefs, ... it is the duty of the appellate court to judge the evidence de novo." Ex parte Horn, 718 So.2d 694, 705 (Ala. 1998). Likewise, when a trial court makes its judgment "based on the cold trial record," the appellate court must review the evidence de novo. Ex parte Hinton, 172 So.3d 348, 352 (Ala. 2012).
"However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, ‘[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.’ " Boyd v. State, 913 So.2d 1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala. Crim. App. 1992) ). "When conflicting evidence is presented ... a presumption of correctness is applied to the court's factual determinations." State v. Hamlet, 913 So.2d 493, 497 (Ala. Crim. App. 2005). This is true "whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence." Parker Towing Co. v. Triangle Aggregates, Inc., 143 So.3d 159, 166 (Ala. 2013) (citations omitted). Hope v. State, 521 So.2d 1383, 1387 (Ala. Crim. App. 1988). Indeed, it is well settled that, in order to be entitled to relief, a postconviction "petitioner must convince the trial judge of the truth of his allegation and the judge must ‘believe’ the testimony." Summers v. State, 366 So.2d 336, 343 (Ala. Crim. App. 1978). See also Seibert v. State, 343 So.2d 788, 790 (Ala. 1977).
On appeal, George reasserts several claims of ineffective assistance of counsel raised in his Rule 32 petition. Specifically, George contends that his counsel was ineffective for failing to prepare and present a mental-health defense at the guilt phase of trial, failing to adequately prepare and present mitigation evidence at the penalty phase of trial, and failing to remove a biased juror.3
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