Jackson v. State

• Decision Date: 14 October 1986
• Docket Number: 6 Div. 11
• Citation: 501 So.2d 542
• Parties: Patricia Ann Thomas JACKSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 542

501 So.2d 542

Patricia Ann Thomas JACKSON v. STATE.

6 Div. 11.

Court of Criminal Appeals of Alabama.

Oct. 14, 1986.

Rehearing Denied Nov. 12, 1986.

Certiorari Denied Jan. 30, 1987

Alabama Supreme Court 86-269.

E.H. Hawkins of deGraffenried & Hawkins, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen., and John Gibbs, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

In 1981, Patricia Ann Thomas Jackson was convicted for the capital murder of Bonnie Walker and sentenced to death. Her conviction was affirmed on appeal and certiorari was denied by both the Alabama Supreme Court and the Supreme Court of the United States. Jackson v. State, 459 So.2d 963 (Ala.Cr.App.), affirmed, Ex parte Jackson, 459 So.2d 969 (Ala.1984), cert. denied, Jackson v. Alabama, 470 U.S. 1034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985).

Jackson was convicted under § 13A-5-31(a)(13), Code of Alabama 1975, for "murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime." In 1982, while her appeal of the capital conviction was pending, Jackson filed a petition for writ of error coram nobis challenging her 1966 conviction for murder. The denial of that petition was affirmed on appeal. Jackson v. State, 446 So.2d 691 (Ala.Cr.App.1983).

In 1985, Jackson filed a petition for writ of error coram nobis challenging her 1981 capital conviction. That petition was denied after an evidentiary hearing. Jackson now appeals from that denial.

Tuscaloosa County Circuit Judge Joseph A. Colquitt presided over Jackson's capital trial and her coram nobis hearing. In denying the petition, he issued a lengthy written order. We highly commend Judge Colquitt for his scholarship and for the conscientious manner with which he conducted the proceedings. In this opinion, we quote the relevant portions of Judge Colquitt's order because his findings are factually accurate and legally both comprehensive and sound.

I

Jackson argues that her 1966 murder conviction was improperly used as both a necessary element of the capital offense and as an aggravating circumstance in imposing the death penalty. Judge Colquitt found that this claim was procedurally barred from coram nobis review because it could have been but was not raised at trial and on direct appeal. Coram nobis is not available to review issues which could have been raised at trial or on direct appeal. Ex parte Ellison, 410 So.2d 130, 132 (Ala.1982). The failure to raise an issue which could have been raised at the original trial or on the direct appeal bars the remedy of coram nobis review. Ex parte Boatwright, 471 So.2d 1257, 1259 (Ala.1985) (J. Maddox concurring specially); Ex parte Jacques, 409 So.2d 885, 886 (Ala.1982); Adams v. State, 281 Ala. 432, 433, 203 So.2d 448 (1967); Eagen v. State, 280 Ala. 438, 441-42, 194 So.2d 842 (1967); Thomas v. State, 280 Ala. 109, 110, 190 So.2d 542 (1966); Butler v. State, 279 Ala. 311, 313, 184 So.2d 823 (1966); Aldridge v. State, 278 Ala. 470, 474, 179 So.2d 51 (1965); Thomas v. State, 274 Ala. 531, 532, 150 So.2d 387 (1963); Allison v. State, 273 Ala. 223, 224, 137 So.2d 761, cert. denied, 369 U.S. 856, 82 S.Ct. 946, 8 L.Ed.2d 15 (1962); Ex parte Seals, 271 Ala. 622, 624-25, 126 So.2d 474, cert. denied, 366 U.S. 954, 81 S.Ct. 1909, 6 L.Ed.2d 1246 (1961); Summers v. State, 366 So.2d 336, 340 (Ala.Cr.App.1978), cert. denied, Ex parte Summers, 366 So.2d 346 (Ala.1979).

"A writ of error coram nobis is appropriate only when the petitioner's claim is based on facts he or she did not know and could not have discovered at the time of trial." Comment, Post-Conviction Remedies in Alabama, 29 Ala.L.Rev. 617, 635 (1978). This rule applies in capital cases involving the death sentence. Ex parte Seals, supra; Luke v. State, 484 So.2d 531, 532 (Ala.Cr.App.1985). "Plainly, claims which could have been raised at trial and on appeal are not cognizable in coram nobis. See e.g. Echols v. State, 276 Ala. 489, 164 So.2d 486 (1964)." J.L. Carroll, Post-Conviction Remedies in Alabama Capital Cases, p. 12 (Montgomery, Ala.: The Southern Poverty Law Center, n.d.); Dobard v. State, 455 So.2d 281, 283 (Ala.Cr.App.1984); Magwood v. State, 449 So.2d 1267, 1268 (Ala.Cr.App.1984).

Jackson contends that the rule of Keller v. State, 380 So.2d 926 (Ala.Cr.App.1979), cert. denied, 380 So.2d 938 (Ala.1979), that the aggravating component of the capital crime could not also supply an aggravating circumstance, should apply because her conviction occurred before the decision in Ex parte Kyzer, 399 So.2d 330 (Ala.1981), which effectively overruled Keller. That contention was rejected in Kennedy v. State, 472 So.2d 1092 (Ala.Cr.App.1984), affirmed, Ex parte Kennedy, 472 So.2d 1106, 1108-09 (Ala.1985), cert. denied, Kennedy v. Alabama, 470 U.S. ----, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). "[T]he constitutional prohibition against state enactment of ex post facto laws is, 'as its terms indicate, directed against legislative action only, and does not reach erroneous or inconsistent decisions by the court.' " Kennedy, 472 So.2d at 1109 (emphasis in original).

II

Jackson argues that under Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985), vacated on other grounds, Kemp v. Brooks, --- U.S. ----, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), several statements made by the prosecutor at the jury sentencing phase of her trial constitute reversible error. This claim, in its present form, was not raised at trial, on direct appeal, or in the coram nobis proceedings in the circuit court. A coram nobis petitioner "certainly ... may not raise in brief on appeal from denial of a petition matters which he did not even allege in his petition." See McLeod v. State, 415 So.2d 1232 (Ala.Cr.App.1982); Boatwright v. State, 494 So.2d 929 (Ala.Cr.App.1986).

Additionally, this issue is also barred from review by coram nobis because there was no objection made to the prosecutor's comments at the sentencing phase of the trial.

However, in the coram nobis proceeding, Jackson did complain that her trial counsel were ineffective because they failed to object to portions of the prosecutor's closing argument during the jury sentencing phase of the trial. Judge Colquitt specifically addressed this issue and found that counsel were not ineffective and that Jackson was not prejudiced by the prosecutor's argument.

"Failure to Object to Allegedly Improper Prosecution Argument

"Petitioner raises this third allegation of ineffective assistance in paragraph 21 of the Petition. In support of this claim, Petitioner called Ralph Burroughs and Joel Sogol.

"At the coram nobis hearing, Petitioner specified the following arguments as objectionable arguments to which her trial counsel should have objected:

"1. I promise you--and I don't mean this in any way in a macabre fashion--if it is necessary that she be executed someone has to understand the severity of what is done and I will be there and I will be a part of that because I think that's necessary and in order to ask that I have to promise you that I will be there. (S.R. 72-73 ['S.R.' refers to the supplemental transcript of argument introduced at the coram nobis hearing.] ).

"2. This woman has killed once; she has killed twice. You have heard evidence that she would kill again were she given half the chance. (S.R. 73).

"3. Ladies and gentlemen, the prison that women are sent to is not full of murderesses. It's full of a lot of people, and down there there're people that are down there for one year for possession of drugs; two years for having stolen something. If you send this woman down there and she kills again, then it is the next jury to be asked, 'Well, is that enough?' Are you going to vote to sentence now or will you send her back and let her kill again? (S.R. 73-74).

"4. She has no more care or compassion for human life than a reptile. (S.R. 74).

"Petitioner's trial counsel did not object to these arguments. Both Sogol and Burroughs explained their failure to do so as being due to their shock at the jury's guilty verdict. This explanation is not credible. Both attorneys are experienced trial attorneys who have had clients convicted of serious crimes and have been surprised by verdicts before. As earlier noted, both attorneys have experienced remorse over Petitioner's sentence and have second-guessed essentially every decision they made in defending her. Further, the trial court observed their demeanor at trial and they did not appear to be shocked or dazed.

"Even if the prosecution argument was improper, every failure to object to argument does not render a lawyer's representation ineffective. Fleming v. Kemp, 753 F.2d 930, 938-939 (11th Cir.1985); Adams v. Wainwright, 709 F.2d 1443, 1446 (11th Cir.1983). Petitioner is not entitled to error-free representation. E.G., Engle v. Isaac, 426 U.S. 107, 134 [102 S.Ct. 1558, 1575, 71 L.Ed.2d 783] (1982).

"The prosecutor's reference to attending the execution is at worst an ambiguous expression of his personal opinion but can also fairly be characterized as stressing to the jury the significance of their decision. A reviewing court should not 'lightly infer' that an ambiguous argument is intended to or has its most damaging meaning and effect. Brooks v. Kemp, 762 F.2d 1383, 1411 (11th Cir.1985) (en banc). Trial counsels' performance was not deficient for failing to object to only arguably improper argument. See, Fleming v. Kemp, 748 F.2d 1435 1450 (11th Cir.1984); Hall v. Wainwright, 733 F.2d 766, 773 (11th Cir.1984).

"Even if this argument was improper, Petitioner has not shown that 'but for' counsels' failure to object 'the result of the proceeding would have been different.' Strickland v. Washington, supra, 104 S.Ct. [2052] at 2068 . The Eleventh Circuit has held that the test to determine whether prosecution argument was prejudicial is 'whether there is a reasonable probability that, but for the arguments, the death verdict would not have been given.'...