Heath v. State, 4 Div. 973
| Decision Date | 23 August 1988 |
| Docket Number | 4 Div. 973 |
| Citation | 536 So.2d 142 |
| Parties | Larry Gene HEATH v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Stephen R. Glassroth, Ronald J. Allen, and John Donohue of Moore, Kendrick, Glassroth, Harris & White, Chicago, Ill., for appellant.
Don Siegelman, Atty. Gen., and William D. Little and Sandra J. Stewart, Asst. Attys. Gen., for appellee.
Larry Gene Heath filed a petition for writ of error coram nobis seeking to set aside his conviction in the Russell County Circuit Court. A full evidentiary hearing was conducted on the appellant's petition, and the appellant was represented by counsel of his choice at this hearing. Following the hearing, the trial judge denied the appellant's petition for error coram nobis and made specific findings. The appellant now appeals the denial of his petition.
On August 31, 1981, Rebecca McQuire Heath, the appellant's wife, was kidnapped in Russell County, Alabama, and killed by a gunshot wound to her head. Her body was found in the backseat of her automobile off a county road in Troup County, Georgia. Rebecca Heath was nine months pregnant at the time of her death. This appellant paid Rebecca Heath's killers $2,000 to kill his wife. The appellant was indicted for the capital offense of murder during a kidnapping (in violation of § 13A-5-40(a)(1), Code of Alabama 1975) by the Grand Jury of Russell County in May of 1982. The trial jury found the appellant guilty of the offense charged in the indictment and recommended a "sentence of death." The trial judge accepted the jury's recommendation and sentenced the appellant to death.
On original direct appeal, this court affirmed the appellant's conviction in Heath v. State, 455 So.2d 898 (Ala.Cr.App.1983). This court's decision was affirmed by the Alabama Supreme Court in Ex parte Heath, 455 So.2d 905 (Ala.1984). The United States Supreme Court granted certiorari in the appellant's case and affirmed his conviction in Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985).
Following the hearing on the appellant's petition for writ of error coram nobis, the trial judge made specific written findings concerning each of the allegations made in the appellant's petition. The trial judge's findings, which are included in his order denying the petition, are thorough and complete and, thus, are adopted by this court as "Appendix A" to this opinion. The same is attached hereto and made a part hereof.
This court, as required by Rule 45A, A.R.A.P., has carefully reviewed the record in this cause and has considered each of the allegations of the petition for writ of error coram nobis and those specifically raised on appeal.
The appellant filed a plea to the jurisdiction at his trial and attacked Alabama's jurisdiction to prosecute him. This plea was denied by the trial judge at the appellant's trial and the appellant failed to raise this issue on original direct appeal. The only issue raised by the appellant concerned "Double Jeopardy."
Thus, although the appellant raised this issue at trial, his failure to raise it on direct appeal will now bar our review of this issue. Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), writ denied, 366 So.2d 346 (Ala.1979); Dobard v. State, 455 So.2d 281 (Ala.Cr.App.1984); Dunkins v. State, 489 So.2d 603 (Ala.Cr.App.1985).
The appellant contends his prosecution in Alabama was the result of prosecutorial vindictiveness because the appellant refused to testify at his accomplices' trial in Georgia after the appellant had pleaded guilty to murder in that State. The appellant failed to raise this issue at trial or on appeal even though the facts and events upon which he bases his allegation were known to him prior to his trial. Thus, this issue is not before this court for review. Ex parte Clisby, 501 So.2d 483 (Ala.1986); Ex parte Ellison, 410 So.2d 130 (Ala.1982).
Furthermore, our review of the trial record and the supplemental record reveals that all of these records, when carefully considered, do not substantiate or support the appellant's assertion that his prosecution was due to prosecutorial vindictiveness.
The appellant contends his trial counsel was ineffective because he failed to raise the issues which we have discussed in Issues I and II.
We have carefully considered the appellant's claim of ineffective assistance of counsel and have reviewed the record in this regard. The appellant's trial counsel testified that he did not raise the jurisdiction and the prosecutorial vindictiveness issues because he believed they did not have any merit. We must agree. See Issues I and II herein.
This appellant has failed to demonstrate that his trial counsel's performance was defective or that he was prejudiced by his counsel's performance at trial. Thus, he has failed to make out a case under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Harrell v. State, 526 So.2d 646 (Ala.Cr.App.), cert. denied, So.2d (Ala.1988).
We find no error in this appeal. The trial court's findings are supported by the record. Thus, the trial judge's denial of the appellant's petition for writ of error coram nobis is due to be, and the same is hereby, affirmed.
AFFIRMED.
All the Judges concur.
v.
State of Alabama, Defendant.
Petitioner has filed a petition for writ of error coram nobis. He has been represented by counsel of his choice in these proceedings. A hearing was held on the petition at which the Court heard testimony and exhibits admitted into evidence. The Court has considered carefully the evidence. The record should reflect that the undersigned was the trial judge in the original proceedings. The following findings are made:
Claim One: Lack of Jurisdiction
At trial, petitioner filed a plea to jurisdiction attacking Alabama's jurisdiction to prosecute him. At the close of the State's case, this plea was denied. Petitioner did not raise the denial of the plea to jurisdiction as an issue on direct appeal; rather he raised the issue of his pleas of autrefois convict and former jeapardy.
Coram nobis does not lie to review an issue raised at trial but abandoned on direct appeal. Summers v. State, 366 So.2d 336, 340 (Ala.Cr.App.1978). The Court also notes as an alternative that the petitioner assumes that the criminal acts occurred in
the State of Georgia. There is nothing in the record to conclusively prove that the murder was perpetrated in Georgia. It is clear that the kidnapping of Rebecca Heath took place in Alabama. Petitioner seeks the Court to find that the murder of his wife took place in Georgia since her body was found there. Alabama has jurisdiction since the criminal act started with the kidnapping in Russell County, Alabama. See Code of Alabama 1975, § 15-2-3. Petitioner's failure to raise this claim on direct appeal after raising it at trial bars coram nobis review.
Petitioner did not raise this claim at trial. Petitioner pled guilty to murder in Georgia, and refused to testify at his accomplices' trial, before he was charged in Alabama. The events upon which his present claim of vindictive prosecution is based were known to him before his Alabama trial. Petitioner could have raised this claim at trial and then on direct appeal but did not.
Coram nobis does not lie to review issues that could have been raised at trial and then on direct appeal but were not. E.g., Ex parte Ellison, 410 So.2d 130, 132 (Ala.1982). Petitioner's failure to raise this claim at trial and then on direct appeal bars coram nobis review.
At trial, petitioner filed a motion to suppress his statements to the authorities. (R. 765-766) After a hearing on the admissibility of petitioner's statements, the motion to suppress was denied. (R. 521) Petitioner did not raise the denial of this motion to suppress as an issue on direct appeal. Heath v. State, supra, 455 So.2d at 899.
Coram nobis does not lie to review issues, such as this one, which were raised at trial but abandoned on direct appeal. Dobard v. State, 455 So.2d 281 (Ala.Cr.App.1984). Petitioner's failure to pursue this claim on direct appeal bars coram nobis review.
An evidentiary hearing was held on this claim. At that hearing, petitioner amended his petition to dismiss those portions of this claim which alleged that trial counsel failed to present an adequate sentencing defense, paragraphs 28-38 of the petition, and that trial counsel failed to request independent psychiatric assistance, paragraphs 39-41 of the petition. Petitioner presented one witness from a Georgia television station, the deposition of District Attorney Davis, and newspaper clippings, petition's exhibits A, B, D and D. Petitioner and respondent stipulated to Russell County, Alabama, circulation figures for two Georgia newspapers. Respondent called Larry Roney and Michael Raiford.
Roney and Raiford were...
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