Hope v. State

• Decision Date: 26 January 1988
• Docket Number: 7 Div. 816
• Citation: 521 So.2d 1383
• Parties: Bobby Joe HOPE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1383

521 So.2d 1383

Bobby Joe HOPE v. STATE.

7 Div. 816.

Court of Criminal Appeals of Alabama.

Jan. 26, 1988.

Rehearing Denied March 8, 1988.

Thomas L. Johnston, Rockford, for appellant.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

In separate trials in 1978, Bobby Joe Hope was convicted for assault with intent to murder and murder in the first degree. On appeal, the assault conviction was affirmed by this Court without published opinion. Hope v. State, 7 Div. 621, January 16, 1979. The murder conviction was reversed. Hope v. State, 378 So.2d 745 (Ala.Cr.App.), cert. denied, 378 So.2d 747 (Ala.1979). On remand, Hope was retried and convicted for murder. That conviction was affirmed on appeal. Hope v. State, 397 So.2d 235 (Ala.Cr.App.), cert. denied, Ex parte Hope, 397 So.2d 237 (Ala.1981).

In 1985, Hope filed separate petitions for writs of error coram nobis attacking each conviction. Those petitions were consolidated by the circuit court. Counsel was appointed to represent Hope and an evidentiary hearing was held. The circuit court denied the petitions and found (1) that Hope "was not denied his constitutional right to effective assistance of counsel" in each case, (2) "[t]hat there was no credible evidence which was presented to this Court from which this Court could set aside the jury verdict in this matter and conclude that the Petitioner is innocent of the crime [of assault] of which he was convicted," and (3) that Hope "failed to meet his burden of proof in this matter and the Court finds no ground to grant the relief herein requested." We find that the judgment of the circuit court denying the petitions is due to be affirmed. In stating our reasons for this conclusion, we address each coram nobis petition separately.

I

Hope alleged that his conviction for assault should be set aside (1) because his trial counsel was ineffective, (2) because of newly discovered evidence that another person actually committed the assault, and (3) because of racial discrimination in the selection of the jury venire.

(A) Ineffective Assistance of Counsel

Attorney John Medaris was appointed to represent Hope in the assault case. The records of this Court show that Hope was represented on appeal by Attorney William T. Harrison, who was retained by Hope's father. Because appellate counsel was different from trial counsel, the alleged ineffectiveness of trial counsel could have been raised as an issue on direct appeal. For purposes of this appeal, it is insignificant that the records of this Court do not show which issues were raised on original appeal. A petition for coram nobis is properly denied either where the issue could have been raised on direct appeal but was not, Carroll v. State, 462 So.2d 789, 780 (Ala.Cr.App.1984), or where the issue was raised and previously considered. Harris v. State, 291 Ala. 135, 136, 279 So.2d 118 (1973); Johnson v. State, 439 So.2d 1340, 1341 (Ala.Cr.App.1983). Issues which "were dealt with on direct appeal or could have been raised at trial or on direct appeal and were not" are not cognizable in a coram nobis proceeding. Luke v. State, 484 So.2d 531, 532 (Ala.Cr.App.1985). See also Ex parte Clisby, 501 So.2d 483, 484 (Ala.1986).

In order to establish a claim of ineffective assistance of counsel a defendant must prove, first,

"that counsel's performance was so deficient as to fall below an objective standard of reasonableness. Counsel's conduct must be considered within the context of the facts of the particular case and as of the time of the alleged misconduct. Second, petitioner must show that counsel's deficient performance prejudiced the defense and deprived petitioner of a fair trial. Prejudice is shown when, absent the errors, there is a reasonable probability that the jury would have had a reasonable doubt respecting guilt." Ex parte Baldwin, 456 So.2d 129, 134 (Ala.1984), affirmed, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985), applying the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A defendant must prove that counsel's incompetence resulted in prejudice.

"In order to establish ineffective representation, the defendant must prove both incompetence and prejudice. [ Strickland v. Washington ] 466 U.S., at 688, 104 S.Ct., at 2065. There is a strong presumption that counsel's performance falls within the 'wide range of professional assistance,' id., at 689, 104 S.Ct., at 2065; the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Id., at 688-689, 104 S.Ct., at 2065-2066. The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances and the standard of review is highly deferential. Id., at 689, 104 S.Ct., at 2065. The defendant shows that he was prejudiced by his attorney's ineffectiveness by demonstrating that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Id., at 694, 104 S.Ct., at 2068. See also, id., at 695, 104 S.Ct., at 2069 (Where a defendant challenges his conviction, he must show that there exists 'a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt'). And, in determining the existence vel non of prejudice, the court 'must consider the totality of the evidence before the judge or jury.' Ibid." Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2586-87, 91 L.Ed.2d 305 (1986).

A defendant must show that counsel's unprofessional error resulted in injury.

"Even assuming, arguendo, that defendant's counsel erred and that this error was professionally unreasonable, that would not in and of itself warrant setting aside the judgment of a criminal proceeding if the error did not affect the judgment. Strickland, supra, 466 U.S. at 691 . The defendant must affirmatively prove prejudice; that is, he 'must show that there is a reasonable probability, that but for counsel's unprofessional errors, the result of the proceeding would have been different.' Strickland, supra, 466 U.S. at 694 . '[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." ' Strickland, supra, 466 U.S. at 689 . Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengeable and those strategic decisions made after less than complete investigation are 'reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.' Strickland, supra, 466 U.S. at 691 .

"In this case, counsel's investigation has not been shown to have been unreasonable, nor has his strategy been shown to have been outside the realm of reasonable assistance of counsel. Yet, even if counsel committed what appears in retrospect to have been a tactical error, that does not automatically mean that petitioner did not receive an adequate defense in the context of the constitutional right to counsel. Summers v. State, 366 So.2d at 341 [Ala.Cr.App.1978], citing Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974). 'An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.' Strickland, supra, 466 U.S. at 691 . '[A]ny deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.' Strickland, 466 U.S. at 692 . Ex parte Lawley, 512 So.2d 1370 (Ala.1987).

In his petition, Hope alleges that trial counsel was ineffective because he failed to make a motion to exclude the State's evidence, failed to request an affirmative charge, failed to except to the judge's oral charge to the jury, failed to file a motion for new trial, failed to request a ruling on his discovery motions, and failed to properly preserve issues for review on appeal. It is also argued that counsel was ineffective because he failed to request a charge on self-defense.

Our review convinces us that counsel's omissions did not prejudice his client. For example, defense counsel's failure to request a judgment of acquittal did not prejudice Hope because the prosecution presented a prima facie case of assault with intent to murder. Counsel is not ineffective for failing to file a motion for which there is "no legal basis." United States v. Caputo, 808 F.2d 963, 967 (2nd Cir.1987).

The transcript of the trial for assault is a part of the record on this coram nobis appeal. The victim, Russell Broom, testified that he felt something hit him on the side of his face, turned around, and saw the defendant with a knife in his hand. Broom's neck had been cut from a point "just below [his] left ear all the way across just below--just above the Adam's Apple." Rhonda Farmer Roper testified that she heard Broom say to Hope, "Please don't cut me anymore." Kathy Vallery testified that she saw Broom holding his neck and Hope holding a knife, that Hope told her not to call the police, that Hope took the telephone receiver away from her during her call to the police, and that Hope told his two companions, "We have got to get out of here." Don House testified that he heard "somebody hollering, Bobby Joe, don't do it"; that Hope had a knife in his hand and "said something like I don't kid around. And Russell said, you cut me."

The defense presented testimony that Broom threatened to "whip [Hope's] ass" and hit Hope in the shoulder with his fist. In response, Hope slapped Broom but did not have a knife and did not...