Hinton v. State, CR-04-0940

• Decision Date: 26 August 2011
• Docket Number: CR-04-0940
• Parties: Anthony Ray Hinton v. State of Alabama
• Court: Alabama Court of Criminal Appeals

Anthony Ray Hinton v. State of Alabama

CR-04-0940

ALABAMA COURT OF CRIMINAL APPEALS

Dated: August 26, 2011

OCTOBER TERM, 2010-2011

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Jefferson Circuit Court

(CC-85-3363.10 and CC-85-3364.10)

On Return to Second Remand

KELLUM, Judge.

In 1986, Anthony Ray Hinton was convicted of two counts of murder made capital because the murders were committed during the course of a robbery. By a vote of 10-2, the jury recommended that Hinton be sentenced to death, and the trialcourt accepted the jury's recommendation and sentenced Hinton to death. Both this Court and the Alabama Supreme Court affirmed Hinton's convictions and death sentence, Hinton v. State, 548 So. 2d 547 (Ala. Crim. App. 1988), aff'd, 548 So. 2d 562 (Ala. 1989), and the United States Supreme Court denied certiorari review. Hinton v. Alabama, 493 U.S. 969 (1989). A thorough statement of the facts is set out in this Court's opinion affirming Hinton's convictions and sentence.

Hinton subsequently filed a timely petition for postconviction relief pursuant Rule 32, Ala. R. Crim. P., challenging his convictions and sentence of death. After conducting an evidentiary hearing, the circuit court denied Hinton's petition in a written order. This Court affirmed that denial on appeal. Hinton v. State, [Ms. CR-04-0940, April 28, 2006] ______ So. 3d ______ (Ala. Crim. App. 2006).

The Alabama Supreme Court granted certiorari review as to one issue: Whether Hinton's trial counsel was ineffective for not procuring a qualified firearms-identification expert to testify in Hinton's defense. The Court held that it was premature to address the issue because no specific finding of fact had been made by the circuit court, as required by Rule32.9, Ala. R. Crim. P., as to whether Andrew Payne, whom trial counsel had procured in Hinton's defense, was, in fact, qualified as an expert in firearms identification. Ex parte Hinton, [Ms. 1051390, October 17, 2008] ________ So. 3d ______ (Ala. 2008). The Court quoted then Judge Shaw's¹ dissent to this Court's opinion affirming the circuit court's denial of Hinton's Rule 32 petition, in pertinent part, as follows:

'"After carefully reviewing the briefs and after examining both the record on direct appeal and the Rule 32 record, I am satisfied that there is only one issue that has been properly raised and that merits this Court's intervention -- whether, based on the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), Hinton's trial counsel rendered ineffective assistance by retaining and proceeding to trial with an unqualified firearms witness.

"'. . . .

"'... I feel that it is premature to reverse the circuit court's judgment because it does not appear to me, after examining the record on direct appeal and the Rule 32 record, that a specific finding as to whether Andrew Payne was a qualified firearms and toolmarks expert has ever been made.... Payne testified that he was a civil engineer with a military background primarily in heavy weapons and ordnance andthat he had had limited experience during his career in toolmarks examination of handguns. To say that Payne was soundly discredited at trial on cross-examination by the prosecutor would be an understatement. However, prosecutors successfully challenge the credibility of even qualified expert defense witnesses in many cases and for many reasons. Therefore, to me it is not dispositive that the prosecutor successfully challenged Payne's credibility before the jury. Rather, the dispositive issue is whether Payne was a qualified firearms and toolmarks expert.

"'... [T]he trial court never specifically found Payne to be qualified to testify about toolmarks. Likewise, the record of the Rule 32 proceedings also reflects that the circuit court made no specific findings on this question....

"'. . . .

"'... The circuit court did not address directly the issue whether Payne was qualified to be testifying in the first place. Additionally, although the circuit court noted in passing that Payne had "been qualified as an expert ballistics witness for several criminal and civil cases in Alabama," that statement does not necessarily reflect a finding that Payne was qualified to testify as a toolmarks expert in this case....

"'. . . .

'"If Payne was in fact a qualified firearms and toolmarks expert, even if his qualifications did not necessarily match upwith those possessed by the State's experts, then I would affirm the circuit court's judgment denying Rule 32 relief. Sorting out conflicting testimony from qualified experts presented at trial is solely within the province of the jury. Rule 32 is not a mechanism by which those convicted of criminal offenses may argue many years after trial that they now have found better expert witnesses that a newly selected jury should hear. On the other hand, if Payne was not qualified to testify authoritatively as a firearms and toolmarks expert, then, based on the Strickland v. Washington standard, I would have no choice but to reverse the circuit court's judgment denying Rule 32 relief on the ground that trial counsel had rendered ineffective assistance to Hinton. It goes without saying that, with knowledge that sufficient funds were available to have a qualified firearms and toolmarks expert, no reasonable criminal defense lawyer would seek out and hire an unqualified firearms witness. Such a lawyer would be charged with the knowledge that in a situation where that witness's testimony was crucial to the pivotal issue in the case, the witness would be subjected to a withering cross-examination that could ultimately result in the complete impeachment of his or her credibility. In addition, based on the evidence presented at trial, if the testimony or the only physical evidence that connected Hinton to the capital murders was, in fact, presented by a witness who was not competent to render an opinion, then it was useless to him in rebutting the opinions of the State's experts, thereby resulting in prejudice under the Strickland v. Washington standard.'"

Ex parte Hinton, __ So. 3d at __ (quoting Hinton v. State, [Ms. CR-04-0940, April 28, 2006] ______ So. 3d ______, ______(Ala. Crim. App. 2006) (Shaw, J., dissenting) (footnote omitted)). The Supreme Court then reversed this Court's judgment and remanded the case for this Court to remand the case "for the trial court to enter an order pursuant to Rule 32.9, Ala. R. Crim. P., making specific findings as to whether Andrew Payne was indeed qualified and competent to testify as a firearms-identification expert based on his knowledge, skill, experience, training, or education." Ex parte Hinton, ______ So. 3d at ______.

On December 19, 2008, this Court remanded this case to the circuit court for proceedings consistent with the Alabama Supreme Court's opinion. Hinton v. State, [Ms. CR-04-0940, December 19, 2008] ______ So. 3d__ ______ (Ala. Crim. App. 2008) (opinion after remand from the Alabama Supreme Court). The circuit court then conducted a hearing and issued a written order purporting to comply with the Supreme Court's opinion and submitted its return to remand. This Court permitted the parties to file briefs on return to remand. After carefully examining the parties' briefs, the proceedings on remand, andthe circuit court's order on remand, this Court concluded that the circuit court had failed to comply with the Alabama Supreme Court's opinion. Instead of "making specific findings as to whether Andrew Payne was indeed qualified and competent to testify as a firearms-identification expert based on his knowledge, skill, experience, training, or education," Ex parte Hinton, ______ So. 3d at ______ , the circuit court appeared to disagree with the Supreme Court's conclusion that no finding had been made regarding whether Payne was qualified as an expert in firearms identification, and issued a written order quoting various portions of the transcript from Hinton's trial and the transcript from the evidentiary hearing on Hinton's Rule 32 petition and concluding that the original trial judge who had presided over Hinton's trial and the initial Rule 32 proceedings had, indeed, found Payne to be a qualified expert, albeit implicitly.² The circuit court made no independentfindings of fact regarding whether Payne was qualified as an expert in firearms identification.

Thereafter, this Court remanded this case a second time by order for the circuit court to comply with the Supreme Court's opinion and to make specific findings as to whether Payne was qualified to testify as a firearms-identification expert. On second remand, the circuit court complied with the Supreme Court's opinion, and issued a written order finding that Payne was, in fact, a qualified expert in firearms identification, and submitted its return to second remand. In its order on return to second remand, the circuit court made the following findings:

"The court makes the following findings of fact from the trial testimony:

"1) During his service in the Air Force Mr. Payne was an instructor in the gunnery program and worked on 'development research of guns' (R-DA. 1573);

"2) Throughout his 30 year career with the Air Force, Mr. Payne was involved with the design of gun barrels (R-DA. 1574-75);

"3) During his Air Force Career Mr. Payne was involved with the testing of firearms and bullets on a daily basis. (R-DA. 1575);

"4) During his Air Force career he examined bullets fired from machine guns andexamined bullets fired from handguns on a regular basis (R-DA. 1S76);

"5) During the 1950's he served on the weapons evaluation board of the Air Force and examined fired

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