Grayson v. State, CR-92-0875

CourtAlabama Court of Criminal Appeals
Citation675 So.2d 516
Docket NumberCR-92-0875
PartiesDarrell B. GRAYSON v. STATE.
Decision Date01 December 1995

Page 516

675 So.2d 516
Darrell B. GRAYSON
Court of Criminal Appeals of Alabama.
Dec. 1, 1995.
Certiorari Denied March 1, 1996
Alabama Supreme Court 1950404.

Page 519

Charlotta Norby, Atlanta, Georgia, Neil K. Evans, Cleveland, Ohio, for Appellant.

James H. Evans and Jeff Sessions, Attys. Gen., Rodger Brannum and Rosa Davis, Asst. Attys. Gen., for Appellee.


COBB, Judge.

This court's opinion in this case issued on January 13, 1995, is hereby withdrawn and the following opinion is substituted therefor.

The appellant, Darrell B. Grayson, was convicted of murder made capital because it was committed during a burglary; he was sentenced to death by electrocution. This conviction and sentence was affirmed on direct appeal. Grayson v. State, 479 So.2d 69 (Ala.Crim.App.1984), affirmed, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985). In 1986, the appellant filed a post-conviction petition 1 and an evidentiary hearing was held on April 6 and 7, 1992. On January 19, 1993, the trial judge denied the appellant's petition. This appeal followed.

The appellant claims that his counsel was ineffective at trial and on appeal. In cases in which, as here, trial counsel also served as appellate counsel, claims of ineffective assistance of counsel are cognizable in a Rule 32, Ala.R.Crim.P., petition. Ex parte Besselaar, 600 So.2d 978 (Ala.1992). In addition, the procedural bars of Rule 32 apply in all cases, "including those in which the death penalty has been imposed." State v. Tarver, 629 So.2d 14, 19 (Ala.Crim.App.1993).


The appellant claims that the trial court erred in adopting the State's brief almost verbatim as the court's opinion and order. This claim is without merit. A review of both documents reveals that while the court did adopt much of the State's brief in its opinion and order, there are enough differences to convince us that the opinion and order represent the true findings of the court.

" ' "[E]ven when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous." Anderson v. Bessemer City, North Carolina, 470 U.S. 564, 572, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 527 (1985). See also United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964) (verbatim findings are not to be summarily rejected and will stand if supported by the evidence); Weeks v. State, 568 So.2d 864 (Ala.Cr.App.1989), cert. denied, Weeks v. Alabama, 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990) (issue discussed in dicta); Morrison v. State, 551 So.2d 435 (Ala.Cr.App.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990) (trial court's findings of fact and conclusions of law were not clearly erroneous and adoption of findings and conclusions was proper).' "

Hallford v. State, 629 So.2d 6, 8 (Ala.Crim.App.1992), cert. denied, --- U.S. ----, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994) (quoting Hubbard v. State, 584 So.2d 895, 900 (Ala.Crim.App.1991), cert. denied, 502 U.S. 1041, 112 S.Ct. 896, 116 L.Ed.2d 798 (1992)).

We cannot say that the findings of the trial court were clearly erroneous.


The appellant claims he was denied the effective assistance of counsel at all phases of his trial and on appeal.

The United States Supreme Court, in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), established a two-pronged test to determine whether a defendant has received ineffective assistance of counsel.

"First, the defendant must show that counsel's performance was deficient. This requires

Page 520

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."

The Supreme Court went on to state that to prove prejudice

"[t]he 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."

466 U.S. at 694, 104 S.Ct. at 2068. (Emphasis added.)

"[A]ny 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 addition, the Court cautioned reviewing courts to avoid applying the benefits of hindsight to evaluate the decisions of counsel.

"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. Louisiana, supra, 350 U.S. at 101, 76 S.Ct. at 164, [100 L.Ed. 83 (1955) ]."

466 U.S. at 689, 104 S.Ct. at 2065. The Supreme Court also required the defendant to show prejudice and to show the prejudicial effect of counsel's errors.

"[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.


"It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding."

466 U.S. at 693, 104 S.Ct. at 2067.


The appellant claims that his counsel was ineffective in failing to challenge the racial makeup of his jury pool. In order to establish a violation of the Sixth Amendment "fair cross-section" requirement, the appellant must show:

"(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to the systematic exclusion of the group in the jury-selection process."

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 587 (1979); Dobyne v. State, 672 So.2d 1319 (Ala.Crim.App.1994)

" '[T]he fair cross-section requirement "ensures only a venire of randomness, one free of systematic exclusion. It does not ensure any particular venire." Note, United States v. Gelb: The Second Circuit's Disappointing Treatment of the Fair Cross-Section Guarantee, 57 Brook.L.Rev. 341, 343 n. 7 (1991). "Rather than

Page 521

being entitled to a cross-sectional venire' " a defendant "has a right only to a fair chance, based on a random draw, of having a jury drawn from a representative panel." Comment, The Cross-Section Requirement and Jury Impartiality, 73 Cal.L.Rev. 1555, 1565 (1985). See Johnson v. State, 502 So.2d 877, 880 (Ala.Cr.App.1987) (venire need not be " 'a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group.' ").' "

Dobyne v. State, 672 So.2d at 1329, (quoting Sistrunk v. State, 630 So.2d 147, 149 (Ala.Crim.App.1993)).

The appellant has not met the three-pronged test of Duren and, as a result, cannot show that counsel was deficient in failing to challenge the racial makeup of the jury panel.


The appellant claims that his counsel was ineffective in failing to conduct sufficient voir dire concerning jurors' extrajudicial knowledge of the case, possible bias, and prejudice. The appellant fails to show that counsel was deficient in this respect, much less "affirmatively prove" the prejudice component of the Strickland test. This claim is without merit.


The appellant claims that his counsel was ineffective in failing to challenge for cause certain jurors because of alleged extrajudicial knowledge of the case. Even assuming that the deficient performance component of the test could be met, the appellant makes no showing that the prejudice prong of Strickland would be met. The appellant states: "There is a reasonable probability that ... jurors [with alleged extrajudicial knowledge of his case] would have been removed from the panel if they had been challenged by counsel." (Appellant's brief at 32.) This allegation does not satisfy the prejudice component of Strickland.


The appellant claims that his counsel was ineffective in failing to adequately support a motion to suppress certain statements made by the appellant. The appellant argues that his counsel did not offer adequate evidence of the appellant's alcoholism in support of his motion to suppress these statements. The trial court held two separate suppression hearings on this issue and found "that Grayson's statements were voluntarily made after knowing and intelligent waivers of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)."...

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