George v. State

• Decision Date: 11 January 2019
• Docket Number: CR-15-0257
• Parties: Larry Donald GEORGE v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

333 So.3d 1022

Larry Donald GEORGE

v.STATE of Alabama

CR-15-0257

Court of Criminal Appeals of Alabama.

January 11, 2019

Rehearing Denied March 29, 2019

Certiorari Denied February 19, 2021

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.

KELLUM, Judge.

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.

Facts and Procedural History

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:

"[O]n the evening of February 12, 1988, the appellant shot his wife Geraldine George. The injuries she sustained as a result of the shooting rendered her a paraplegic. He also shot and killed Janice Morris and her boyfriend, Ralph Swain. Dr. Joseph Embry, a medical examiner for the State of Alabama, testified that Morris died as a result of a gunshot wound

to the left side of his head. The lower half of the appellant's wife's body was paralyzed as a result of the damage caused by a bullet that entered her arm and passed through the mid-portion of her body.

"Geraldine George testified that on the evening of February 12, 1988, she finished her shift at the Wal-Mart discount department store and went to her apartment complex. George had left her two children with her neighbor, Janice Morris, so she went to Morris's apartment to pick up her children. As she was leaving the apartment she saw the appellant talking to her son. The appellant approached her and pulled a pistol from his jacket pocket. She ran into Morris's apartment, yelling for Morris to telephone the police. She heard gunshots, turned, and saw the appellant pointing a gun at her before he fired. Janice Morris was shot while she was at the telephone, and Ralph Swain was shot as he ran up the stairs to the second floor.

"Andrew Watkins was visiting a friend at the apartment complex on the night of the shootings. He testified that he heard gunshots and that he watched the appellant leave an apartment and drive away in his automobile. Watkins followed the appellant's automobile and

wrote down his license tag number. He then went to police Captain Willard Hurst's house, where he reported the incident. The appellant was apprehended in Delaware six years after the murders as a result of an episode of the television show America's Most Wanted on which the case was featured."

George, 717 So.2d at 831.¹

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.

Standard of Review

"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).

" ‘The burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State.’ Davis v. State, 9 So.3d 514, 519 (Ala. Crim. App. 2006), rev'd on other grounds, 9 So.3d 537 (Ala. 2007). ‘[I]n a Rule 32, Ala. R. Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.’ Wilson v. State, 644 So.2d 1326, 1328 (Ala. Crim. App. 1994). Rule 32.3, Ala. R. Crim. P., specifically provides that ‘[t]he petitioner shall have the burden of ... proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’ "

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). "The credibility of witnesses is for the trier of fact, whose finding is conclusive on appeal. This Court cannot pass judgment on the truthfulness or falsity of testimony or on the credibility of witnesses." 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).

Analysis

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

" ‘In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test articulated by the United States Supreme Court 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

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