Hamm v. State

• Decision Date: 20 May 2005
• Docket Number: CR-99-0654.
• Citation: 913 So.2d 460
• Parties: Doyle Lee HAMM v. STATE.
• Court: Alabama Supreme Court

913 So.2d 460

Doyle Lee HAMM v. STATE.

CR-99-0654.

Court of Criminal Appeals of Alabama.

February 1, 2002.

Rehearing Denied April 19, 2002.

Certiorari Denied May 20, 2005. Alabama Supreme Court 1011483.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kimberly J. Dobbs-Ramey, Decatur; and Bernard E. Harcourt, Tucson, Arizona, for appellant.

William H. Pryor, Jr., atty. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.

COBB, Judge.

Doyle Lee Hamm appeals from the order of the Circuit Court of Cullman County denying his postconviction petition for relief. Hamm was charged with the January 24, 1987, robbery-murder of Patrick Cunningham, a night desk clerk at a motel in Cullman, Alabama. § 13A-5-40(a)(2), Ala.Code 1975. Hamm was tried by a jury, and on September 27, 1987, he was convicted of robbery-murder. The jury recommended that the trial court impose a death sentence. On December 1, 1987, the trial court determined that the aggravating circumstances outweighed the mitigating circumstances, and sentenced Hamm to death. This Court affirmed the judgment and sentence on June 16, 1989. Hamm v. State, 564 So.2d 453 (Ala.Crim.App.1989). The Alabama Supreme Court affirmed the judgment of conviction and the death sentence. Ex parte Hamm, 564 So.2d 469 (Ala.1990). The United States Supreme Court denied certiorari review. Hamm v. Alabama, 498 U.S. 1008, 111 S.Ct. 572, 112 L.Ed.2d 579 (1990).

Hamm filed a petition pursuant to Rule 32, Ala. R.Crim. P., on December 3, 1991. After numerous delays, a hearing was held on the petition on July 26, 1999.¹ On December 6, 1999, the circuit court denied the petition. This appeal follows.

I.

Hamm first argues that this Court must remand this case for a Rule 32 hearing "with his own counsel," because the circuit court erroneously dismissed Hamm's pro bono counsel, Bernard Harcourt, and appointed new counsel, Pam Nail, to represent him at the hearing. The State contends that the circuit court acted within its discretion when it appointed a different attorney to represent Hamm, because Harcourt had written a letter to the court indicating that he had attempted, in vain, to locate "substitute counsel" to represent Hamm at the hearing, and he requested the court's assistance. (C. 1895.)² The State also argues that the constitutional right to counsel does not guarantee the right to any particular counsel or to counsel of one's choice.

The circumstances giving rise to this issue are unusual, as is the issue itself. Our review of the record and the relevant legal principles convinces us that no reversible error occurred when the trial court "withdrew" Harcourt and appointed another attorney to represent Hamm at the Rule 32 hearing.

Bernard Harcourt filed a Rule 32 petition on Hamm's behalf on December 3, 1991. (C. 2080-2120.) On January 16, 1992, Harcourt filed a motion on Hamm's behalf requesting that he and Bryan Stevenson of the Capital Representation Resource Center be appointed to represent Hamm. (C. 2034-36.) It does not appear that the motion was ruled upon, but Harcourt was listed as counsel of record for Hamm (C. 1), and he continued to file documents on Hamm's behalf. During the next several years, the case progressed very slowly. (C. 5.) On March 9, 1998, the trial court scheduled a final hearing on the petition to be held on June 29, 1998.

On April 20, 1998, Harcourt sent a letter to the circuit judge, requesting the judge's assistance in "resolving" Hamm's case. Harcourt wrote:

"Since I received notice of the hearing date of Monday, June 29th, I have tried to locate substitute counsel to replace me in my pro bono representation of Doyle Lee Hamm. As you can imagine, there are few lawyers that are willing to take these death penalty cases pro bono and, unfortunately, I have not yet located anyone to replace me.

"I began looking for substitute counsel for a number of reasons. First of all, I will be out of the country on Monday, June 29th, the date of the hearing.... In addition, I have moved to Tucson, Arizona, where I accepted an appointment to the faculty at the law school, and now have two very small children (ages three and nine-months). This makes it very difficult for me to engage in the kind of trial litigation at long-distances that this out-of-state, across-the-country pro bono representation entails. Moreover, my appointment at the University of Arizona is for an academic professorship (rather than a litigation position), and I am accordingly expected to be engaged in scholarship full-time, not litigation. For all of these reasons, as I am sure you an understand, I thought it best to try to locate substitute counsel. Thus far my efforts have been in vain."

(C. 1895.)

In this letter, Harcourt then stated that he believed that the case could be "resolved by agreement." Harcourt explained that Hamm could be transferred to Mississippi to serve a previously imposed sentence of life imprisonment without parole, and that Hamm would agree that, if he ever challenged the sentence in Mississippi, "he waives his right to appeal or challenge in any way his sentence of death in Alabama." (C. 1895.) Harcourt requested the court's assistance in initiating discussions among the parties with regard to this possible "resolution" he described. Finally, he requested that the June 29 hearing be postponed while the parties discussed "the possibility of resolving the case by agreement." (C. 1890.)

Circuit Judge Don Hardeman appears to have interpreted Harcourt's letter indicating that, due to Harcourt's family status and his employment in Arizona, he would no longer be able to represent Hamm, and that he had been unable to find an attorney willing to take over Hamm's representation. On May 1, 1998, Judge Hardeman wrote a letter to Harcourt, and stated that he had interpreted Harcourt's letter as a motion to withdraw and that he was permitted to withdraw as counsel for Hamm and was immediately relieved from any further action in the case. The court stated it would appoint new counsel for Hamm. (C. 1894.) On May 28, 1998, the court appointed Pamela Nail to represent Hamm and continued the Rule 32 hearing. (C. 6.)

On May 26, 1998, Harcourt sent a letter to Judge Hardeman, stating that he was "surprised" at the judge's letter permitting him to withdraw as counsel. He stated that he felt professionally responsible for the case and that he would like to be informed of any action in the case. He requested, "at the very least," to represent Hamm as cocounsel. (C. 1613.) The record does not indicate that the court responded to Harcourt's letter.

The case was scheduled for a hearing, but was continued twice on motions from Hamm. (C. 6.) The matter was set for a hearing on April 8, 1999. On March 24, 1999, Harcourt filed a pleading styled as a "Motion to Be Consulted and Notified About the Hearing in This Case and to Be Notified About all Other Action Taken in This Case and to Schedule the Hearing at a Time that Is Convenient for Counsel for Petitioner Doyle Lee Hamm." (C. 1883-85.) Harcourt stated that he had not heard from the court or from Nail that a hearing had been scheduled, but that Hamm had informed him of the upcoming hearing. Harcourt stated that he had not been asked if he could attend a hearing on the date scheduled and further said, "Undersigned counsel teaches on Wednesdays from 1:15 to 2:25 and from 3:30 to 5:30 p.m. and would have to cancel classes in order to attend the hearing." (C. 1884.) Harcourt then requested that he be "consulted and notified about the hearing" and that the hearing be rescheduled to a time that was mutually convenient for all of the attorneys in the case. (C. 1884.) On March 29, 1999, Nail wrote a letter to Harcourt in response to Harcourt's submission of March 24, 1999. She stated that, on December 11, 1998, when Judge Hardeman continued the hearing and reset it for April 8, 1999, she had informed Harcourt of the action. She further stated that "Judge Hardeman will not continue this matter as you are no longer listed as counsel for Mr. Hamm." (C. 1632.)

In a pleading dated April 7, 1999, Harcourt alleged that he had made plans to attend the hearing and present evidence on April 8, 1999, but that he was informed that the hearing had been rescheduled because of the illness of a witness. Harcourt requested that the court "reappoint" him to represent Hamm. (C. 1617-24.) On April 14, 1999, the trial court denied the motion Harcourt filed requesting that he be consulted and notified about action in the case and the motion requesting that he be reappointed to represent Hamm. (S.R.5-9.)³ In that extensive order, the court detailed the history of the case and of the court's interactions with Harcourt. For example, the court stated that, in January 1996, when Harcourt informed the court of his change of address when he accepted a position in Massachusetts,

"[T]he Court had a discussion with Mr. Harcourt about his ability to continue to represent Mr. Hamm from his new position at Harvard University and gave him the opportunity to withdraw at that time. Mr. Harcourt declined saying that he would continue the representation at his own expense from long distance."

(S.R.6.)

The court said that, several months later when it attempted to schedule a hearing date, Harcourt could not be reached. The court stated that, in March 1998, it located Harcourt in Arizona and spoke with him by telephone. Harcourt apparently informed the court that he had not completed discovery or had any contact with the Attorney General's Office about this case. The court personally informed Harcourt that the Rule 32 hearing had been scheduled for June 29, 1998. In its April 14, 1999, order the court further stated, "Subsequently, by letter dated April 20, 1998 ..., Mr. Harcourt informed the Court that he could no longer represent the defendant in this...