Hallford v. State

Citation629 So.2d 6
Decision Date30 December 1992
Docket NumberCR-91-596
PartiesPhillip D. HALLFORD v. STATE.
CourtAlabama Court of Criminal Appeals

Robert L. Hickok, Richard S. Schlegel and Douglas W. Vick of Pepper, Hamilton & Scheetz and Douglas W. Vick, Philadelphia, PA, and J. David Robinson, Daleville, for appellant.

James H. Evans, Atty. Gen., and Melissa Math, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Phillip D. Hallford, appeals from the denial of his petition for post-conviction relief under Rule 32, A.R.Crim.P. The appellant was convicted of murder made capital because it was committed during the course of a robbery. § 13A-5-40(a)(2), Code of Alabama 1975. He was sentenced to death by electrocution. We affirmed his conviction in Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988), after searching the record for plain error. Rule 45A, A.R.App.P. The Alabama Supreme Court affirmed, Ex parte Hallford, 548 So.2d 547 (Ala.1989), and the United States Supreme Court denied certiorari review in Hallford v. Alabama, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989). The current appeal is a result of the denial of his petition collaterally attacking the appellant's conviction and sentence of death.

The state's evidence at the guilt phase of the appellant's trial tended to show that in the early morning of April 13, 1986, the appellant forced his daughter to entice her boyfriend, Charles Eddie Shannon, to a secluded bridge. He then shot Shannon once in the roof of the mouth. While Shannon was still alive, Hallford dragged him to the side of the bridge and shot him two more times, once in the front of the left ear and once in the forehead. The appellant then threw the body over the bridge railing and into the water.

Sometime after the shooting, the appellant returned to the scene of the crime to remove the blood from the bridge. The next day the appellant burned the victim's wallet and its contents. These events were witnessed in part by the appellant's daughter and his son, who testified against him at trial. While the appellant was burning the victim's wallet he commented that the victim was a "cheapskate" because he said he found no money in the wallet. However, the victim's father testified that he had given the victim money on the afternoon of his disappearance. The victim's badly decomposed body was discovered in the water approximately two weeks after the shooting.

The appellant maintained at trial that he did not kill the victim and that he was nowhere near the bridge when the murder occurred.

On appeal from the denial of his petition for post-conviction relief, the appellant raises several issues that are procedurally barred from our consideration. See procedural default grounds of Rule 32, A.R.Crim.P., which are applied with equal force to collateral proceedings on a death penalty case. Thompson v. State, 615 So.2d 129 (Ala.Cr.App.1992). We will address those issues that are not procedurally barred from our review.

I

The appellant initially argues that the trial court's judgment is entitled to no deference on appeal because the court adopted the proposed opinion and order drafted by the State and failed to independently assess the appellant's contentions. We do not agree.

The record contains a proposed opinion and order recommended by the State. The record also contains the judgment and order of the trial court. In the court's order, the following statement appears:

"The Court hereby adopts the opinion and order filed by the State, marked exhibit 'A' and incorporated herein as set out in detail as the judgment of the Court. The adoption of this order is based on the Court's own evaluation of the evidence and law in the case."

(Emphasis added.)

Two months after the proposed opinion and order were filed by the state, the trial court issued its opinion and order denying the petition. The court's six-page opinion and order, though stating that it adopted the state's opinion and order, evaluated each allegation raised by the appellant.

As this court stated in Hubbard v. State, 584 So.2d 895, 900 (Ala.Cr.App.1991), cert. denied, 502 U.S. 1041, 112 S.Ct. 896, 116 L.Ed.2d 798 (1992):

" '[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)."

See Williams v. State, 627 So.2d 985 (Ala.Cr.App.1991). See also Thompson, supra.

We do not have a situation here where the trial court merely adopted verbatim the proposed order of the State. It is clear from the trial court's order denying the petition that the trial court independently evaluated each allegation and denied the petition.

II

The majority of the appellant's allegations in his petition concern the performance of his trial counsel. The right to counsel as guaranteed by the Sixth Amendment to the United States Constitution encompasses the right to "effective assistance of counsel." Browning v. State, 607 So.2d 339, 340 (Ala.Cr.App.1992). Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980).

To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

"The appellant must show that his counsel's performance was unreasonable, considering all of the attendant circumstances .... '[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.' Strickland, 466 U.S. at 690, 104 S.Ct. at 2066."

Duren v. State, 590 So.2d 360, 362 (Ala.Cr.App.1990), aff'd 590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992).

When this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App.1985). The burden is on the appellant to show that his counsel's conduct was deficient. Luke.

"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. 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.' There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way."

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065-66. (Citations omitted.) Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.Cr.App.1987).

Initially we must determine whether counsel's performance was deficient. We must evaluate whether the action or inaction of counsel of which the petitioner complains was a strategic choice. "Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengeable...." Lawley, 512 So.2d at 1372. This court must avoid using "hindsight" to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance. Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991).

The appellant contends that his counsel performed ineffectively in advising him to testify at the guilt stage, thereby opening the door for testimony concerning his incestuous relationship with his daughter, the victim's girlfriend, at the penalty phase.

At the evidentiary hearing on the appellant's petition, the appellant's trial counsel testified that he advised the appellant to testify because he believed that all jurors liked to hear the accused's side of the story. The final decision of whether to testify was left to the appellant, who chose to take the stand and to testify in his own behalf. Trial counsel stated that by questioning the appellant about his relationship with his two children and about the appellant's disapproval of some of the children's conduct, he hoped to show the jury that because of the strict discipline he imposed and because of the appellant's disapproval of his children's conduct, the children had conspired to testify against him. This was a strategic choice made by appellant's counsel, which was consistent with the appellant's defense at...

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