McNeely v. State

• Decision Date: 12 November 1986
• Docket Number: 6 Div. 629
• Parties: John Charles McNEELY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 375

524 So.2d 375

John Charles McNEELY v. STATE.

6 Div. 629.

Court of Criminal Appeals of Alabama.

Nov. 12, 1986.

On Return to Remand April 12, 1988.

Albert C. Bowen, Jr., and James M. Fullan, Jr., of Beddow, Fullan & Vowell, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and J. Elizabeth Kellum, Asst. Atty. Gen., for appellee.

McMILLAN Judge.

The appellant, John Charles McNeely, was found guilty of the offense of sexual abuse in the first degree, in violation of § 13A-6-66, Code of Alabama (1975). He was sentenced to 14 years' imprisonment, pursuant to § 13A-5-9(b)(1), Code of Alabama (1975).

The main issue raised by the appellant on this direct appeal concerns the effectiveness of his trial counsel. The allegations are those commonly raised by a petition for writ of error coram nobis and represent accusations which the trial defense counsel has not had the opportunity to answer. According to Ex parte Thompson, [Ms.84-305, September 27, 1985] --- So.2d ---- (Ala.1985), "the Court of Criminal Appeals has authority to remand a case, if it determines justice would require it, to the trial court for a determination to be made on the defendant's claim that he was inadequately represented at his trial." (Emphasis provided.) "Because of the nature of those allegations and in an attempt to settle this issue as soon as possible, we remand this cause to the circuit court with directions that an evidentiary hearing be held on the issue of the competency of appointed counsel." Delevie v. State, 454 So.2d 1044, 1048 (Ala.Cr.App.1984). The trial court shall make written findings of fact on this issue and forward these findings, along with the transcript of the proceedings, to this court for review.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

McMILLAN, Judge.

The appellant, John Charles McNeely, was found guilty of the offense of sexual abuse in the first degree, in violation of § 13A-6-66, Code of Alabama (1975). He was sentenced to a term of 14 years' imprisonment on the basis of two prior convictions.

I

The appellant argues that he suffered material prejudice because his trial attorney "failed to exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances." This cause was remanded to the trial court for an evidentiary hearing on the issue of the competency of the trial counsel because of the nature and the number of alleged instances of impropriety by the appellant's trial attorney. The trial court conducted the hearing and in accordance with the remand forwarded a transcript of the proceedings, along with its findings of fact on this issue. The appellant has failed to prove that "but for" his counsel's unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Without reaching any determination as to the reasonableness of the strategy of the appellant's counsel at trial, we note that "[a]n 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 v. Washington, supra, 466 U.S. at 691, 104 S.Ct. at 2066. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id., 466 U.S. at 700, 104 S.Ct. at 2071.

II

The appellant argues that the trial court committed reversible error in denying him access to a tape recording which the trial court sealed and placed in the record. The tape recording contained a conversation between the nine-year-old victim and her mother. The trial court issued an order for discovery. Thereafter, the appellant filed a written request for compliance with the discovery order. The record indicates that prior to voir dire and jury selection, the trial judge inquired as to the whereabouts of the tape, in order to listen to the tape and determine whether it contained any exculpatory material. Thereafter, the trial judge retired to his office in order to listen to the tape and, upon returning to the courtroom, stated that there was nothing exculpatory contained in the tape. The appellant now complains that neither he nor his trial counsel nor his counsel on appeal has been allowed to listen to the tape in order to determine whether any of its contents could have been used to impeach the victim.

The trial court determines the admissibility of non-disclosed evidence as it may be "pertinent to the issue of the innocence or guilt of the accused." Brady v. Maryland, 373 U.S. 83, 90, 83 S.Ct. 1194, 1198, 10 L.Ed.2d 215 (1963). Furthermore, the United States Supreme Court has established the court's role in determining the materiality of non-disclosed evidence. See United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976). An in camera hearing is an appropriate means for the trial court to examine such evidence. United States v. Gaston, 608 F.2d 607 (5th Cir.1979). This court has listened to the tape and finds that it contains no exculpatory material and, thus, that the trial court did not abuse its discretion.

"The evidence suppressed must have been material, probative, vital and exculpatory to the accused. A new trial is required only if the evidence undisclosed could, in any reasonable likelihood, have affected the judgment of the jury. In United States v. Agurs, [427 U.S. 97, 96 S.Ct. 2592, 94 L.Ed.2d 342 (1976) ], the United States Supreme Court stated that the correct rule is that a constitutional error has occurred if the omitted evidence creates a reasonable doubt that did not otherwise exist and that the omission must be evaluated in the context of the entire record." (Footnotes omitted.)

C. Gamble, McElroy's Alabama Evidence, § 290.05(2) (3d ed. 1977).

Although the appellant further complains that the appellant's counsel had been attempting to get this tape for months, " '[t]he principle of Mooney v. Holohan, [294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935),] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.' Brady, 373 U.S. at 87, 83 S.Ct. at 1197." State v. Kimberly, 463 So.2d 1106, 1108-09 (Ala.Cr.App.), reversed, Ex parte Kimberly, 463 So.2d 1109 (Ala.1984).

"In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held, that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218." (Emphasis added.)

Robinson v. State, [Ms. 1 Div. 53, October 14, 1986] (Ala.Cr.App.1986).

III

The appellant argues that the State failed to introduce evidence to prove the material averments of the indictment. Specifically, the appellant contends that the State failed to prove that he was 16 years or older when committing the sexual contact. However, this court has interpreted the legislative intent in denominating the perpetrator as being 16 years old or older in crimes involving carnal knowledge as making the appellant's immaturity a defense. Potts v. State, 426 So.2d 886, 894 (Ala.Cr.App.1982), affirmed, 426 So.2d 896 (Ala.1983). Thus, the State had no burden to prove that the appellant was at least 16 years of age; however, this age requirement was available to the appellant for purposes of a defense. The affidavit contained in the record indicates that the appellant was born on May 29, 1944, and was 39 years old when charged with the offense. The case action summary also contains the appellant's date of birth.

IV

The appellant argues that the trial court committed reversible error "by interjecting itself into the trial of the case with ex mero motu remarks before the jury." In his brief, the appellant raises several instances of judicial comments which he argues were improper. During the cross-examination of a State's witness, and in each instance prior to any objection from the State, the trial judge made the following statements:

"THE COURT: Haven't we been over that? Hasn't she answered that question?

"....

"THE COURT: She's already answered that question.

"....

"THE COURT: Why investigate that incident? That doesn't--that's in a divorce case. That hasn't got anything to do with this thing."

Subsequently, during the cross-examination of another State's witness, the court stated: "We aren't going into this. We have had hearsay so long I'm hearsaid out." The appellant further complains that, during the cross-examination of the nine-year-old victim, while his counsel was allegedly having a difficult time "with the witness not being responsive," the court stated to the victim, "You do your best, ... and answer the questions. You're doing fine as silk. You keep going." Thereafter, during the cross-examination of the victim, she responded "I don't remember" on several occasions, whereupon the defense counsel asked, "Are you having a little trouble with your memory today?" The court stated, "Mr. Allen, that ain't going to work in this case."

The defense counsel during the direct examination asked, "Approximately, the first few months when you were married to Mr. McNeeley and in your presence did [the victim] ever show any objection to little Harry calling John [the appellant] Daddy?" Prior to any objection from the State, the court stated, "I think that's immaterial. What's that got to do with this? Harry belongs to somebody else."

The trial court told the jury before recess for the day, "You're going to be the first and I hope the last jury that will ever hear this case."

The appellant raises other instances during which, before any objection was raised by the prosecution, the trial court intervened on the grounds that the questions...