Hope v. State

• Decision Date: 26 March 1985
• Docket Number: 5 Div. 802
• Citation: Hope v. State, 476 So.2d 635 (Ala. Crim. App. 1985)
• Parties: Hubert E. HOPE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 635

476 So.2d 635

Hubert E. HOPE v. STATE.

5 Div. 802.

Court of Criminal Appeals of Alabama.

March 26, 1985.

Rehearing Denied April 23, 1985.

Certiorari Denied June 28, 1985

Alabama Supreme Court 84-803.

Steven F. Schmitt, Hornsby & Schmitt, Tallassee, for appellant.

Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Appellant Hubert E. Hope was convicted of conspiracy to murder Alabama Attorney General Charles A. Graddick. Hope was sentenced to 25 years' imprisonment. Notice of appeal was filed, but no record was ever provided and on June 8, 1982, this court dismissed the appeal for failure to file a transcript of record. Hope v. State, 418 So.2d 980 (Ala.Cr.App.1982). Hope subsequently filed a petition for writ of error coram nobis. Several motions for a transcript of record of his trial at state expense were also filed, which motions were denied and are before us, together with the circuit court's denial of the coram nobis petition after a lengthy hearing.

Appellant Hope contends that his petition should have been granted because, 1) he was ineffectively represented at trial and with respect to his appeal, and 2) the court should have found him to be indigent at the time for taking the appeal and provided him with a transcript. These issues were taken up at the circuit court hearing on his petition and a transcript of that proceeding is before us.

I

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets out the test for determining effectiveness of counsel: 1) did counsel's conduct so undermine the proper functioning of the adversary process that the trial cannot be relied on as having produced a just result? 2) was assistance of counsel reasonably effective? 3) is there a reasonable probability that the outcome of the case would have been different, but for counsel's errors? That decision is controlling in this state. See Baldwin v. State, 456 So.2d 129 (Ala.1984). This standard changes the former Alabama standard from "a farce, sham, or mockery of justice" to an objective standard of reasonableness. This "new" standard, which has been in effect in the federal courts for some time, also employs the "former" principle that a defendant is not entitled to an error-free performance of counsel. Mylar v. Alabama, 671 F.2d 1299, rehearing denied, 677 F.2d 117 (11th Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983).

Turning first to Hope's contention that he was ineffectively represented at trial, his able appointed counsel on this coram nobis appeal has drawn our attention to a number of items which, he contends, constituted evidence of ineffective assistance. A brief background of the Hope proceedings may be useful.

Two sons of Hubert E. Hope were convicted of felonies in Shelby County, Alabama, and were incarcerated in the Alabama prison system. A convict, Jessie Jett, was in the habit of suggesting to other inmates or to their families that they could possibly obtain release through federal post-conviction proceedings. He referred some of the people who responded to his suggestion to Mr. Jack Smith, an attorney who had represented him in the past. Jett wrote to Mrs. Hope suggesting the possibility of release of one of her sons. The Hopes responded, met with Jett and eventually met with Mr. Jack Smith and an associate of his, Mr. Newton. The Hopes went to Mr. Smith's office in Dothan to deliver their son's trial transcript to him, and proceedings were apparently instituted in the federal court on behalf of one of their sons. Thereafter, Hope visited Jett in prison several times and it was at this time that their conversation turned toward the attorney general and the Shelby County officials whom Hope blamed for his sons' going to prison. At some point, inmate Jett was wired with concealed voice transmission equipment and a number of hours of conversation between Jett and Hope were recorded.

The charges of conspiracy to murder filed against Hope were made as the result of what he said during these recorded sessions. Hope was indicted for the conspiracy to murder Attorney General Charles Graddick, District Attorney Billy Hill, and Judge Harold Walden. Hope was tried and convicted of conspiracy to murder Charles Graddick. Thereafter, the charges to murder the district attorney and the judge in Shelby County were nol-prossed.

Hope was tried in Elmore County, Alabama, since this was the county where Jessie Jett was imprisoned and where the conversations constituting the prosecuted conspiracy took place. Judge Walter C. Hayden, Jr., was the judge at Hope's trial. He was also the judge who conducted the coram nobis hearing now before this court.

Hope and his family employed Mr. Lawrence Sheffield of Bessemer, Alabama, to defend him in this case. The evidence indicated that Mr. Sheffield completed law school in 1955, that he devoted himself primarily to the criminal practice, and that 75% of his cases were tried within Jefferson County, approximately 25% in other counties. Mr. Sheffield testified that he tried cases "pretty much all over the state." Sheffield was assisted by his son in conducting the trial. It is his conduct of the trial that is the principal target of Hope in this coram nobis proceeding.

-A-

It is contended that counsel fell below the accepted minimum standard by failure to file any discovery motions at the circuit court level. This criticism is readily answered by the record itself. It appears that the discovery motions were filed and complied with at the district court level. Mr. Sheffield testified that the state turned over copies of all the tapes to him and that they listened to those tapes.

At the coram nobis hearing the following occurred between counsel for the petitioner and witness Lawrence Sheffield on this subject:

"Q: You say you filed some discovery motions in the case, did you file those in the circuit court level?

"A: We filed them in the district court level.

"Q: Did you file any in the circuit court level?

"A: We had--we had all of the evidence that the state had at the time that we went to trial."

Mr. Sheffield further explained, "The information that was ordered by the court was furnished to the defendant by the state. We had--there were no witnesses out there in this case that we could call in to alleviate the circumstances." No injury was suffered by Hope by virtue of not filing discovery motions in circuit court; the matter of discovery had already been resolved in his favor.

It is suggested by counsel for the petitioner in this coram nobis proceeding that the state may not have furnished the defendant with all the tapes of the conversation between the defendant and Jett. In the hearing the following transpired in this respect:

"Q: Mr. Sheffield, at the trial of the case, did the state attempt to offer into evidence tapes, recorded tapes, or transcripts from recorded tapes that you had not heard of before?

"A: No."

He further testified that he did not find any discrepancies between what the state had been ordered to do and what the state did.

-B-

Counsel on coram nobis urges us to hold as a matter of law that failure to associate local counsel for purposes of striking a jury constitutes ineffective representation. We note at the outset that the intended victim of the alleged conspiracy to murder is an elected state official who had people who voted for and against him in every county in the state. He was not shown to have any particular contact with Elmore County.

As to witnesses, Jett's physical presence in Elmore County resulted from his legal incarceration as an inmate of a state prison located in that county. This fact would certainly not bolster his credibility over that of another witness. The principal evidence in the case consisted of the tapes of dialogues between Hope and Jett. It could hardly be said that local counsel would be better able to select jurors who would react in one way rather than in another to a taped recording. When asked about his practice of associating local counsel, Mr. Sheffield stated, "No sir, I have never associated local counsel in any major criminal case I have ever tried since I was [sic] practicing law." He also stated, "I voir dire the jury to the extent that I deem it necessary in every case." He mentioned he had received some suggestions from someone regarding jurors; Sheffield stated there was a lawyer there "who mentioned 2 or 3 people on the venire they thought that I would be better off without for various reasons, and I gave that consideration in striking the jury." In short, we are unwilling to hold and do not believe that failure to associate local counsel for purposes of striking a jury constitutes ineffective assistance of counsel. Furthermore, the appellant has not shown how in reasonable probability he was prejudiced by his attorney's practice.

-C-

The next ground for claiming ineffective representation is that counsel failed to call witnesses to impeach Jessie Jett or to "explain the relationship" between Jessie Jett and Hope. It is contended that Jessie Jett was the primary state's witness and that his testimony convicted petitioner Hope. We perceive from the record that this contention is absolutely incorrect. The trial judge stated for the record that it was the tapes of conversations between Hope and Jett that were the primary state's evidence in the case and that the tapes afforded the grounds for a conviction. The court stated for the record, "In my opinion, the jury's finding of guilty was sustained by what was on those tapes and by [Hope's] actions in putting that rifle and the money in the car there in Clanton, Alabama." The court during Hope's testimony in this hearing reminded Hope that he was the judge who heard the case, and stated, "[W]hat was said on those tapes is pretty well what convicted you." It was also the state's position throughout the coram nobis hearing that...