Morrison v. State
| Decision Date | 26 May 1989 |
| Docket Number | 4 Div. 191 |
| Parties | Jesse Lee MORRISON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Bryan A. Stevenson, Atlanta, Ga., and Ray T. Kennington, Ariton, for Jesse Lee Morrison.
Don Siegelman, Atty. Gen., and John Gibbs, Asst. Atty. Gen., for State.
This is an appeal from the denial of a petition for post-conviction relief.
In 1978, Jesse Lee Morrison was convicted and sentenced to death for the intentional killing and robbery of Marguerite McClenny in Eufaula, Alabama. This conviction was ultimately reversed on appeal. Ex parte Morrison, 398 So.2d 751 (Ala.1981).
On remand, Morrison was again convicted and sentenced to death. That conviction and sentence were affirmed on appeal. Morrison v. State, 500 So.2d 36 (Ala.Cr.App.1985), affirmed, Ex parte Morrison, 500 So.2d 57 (Ala.1986), cert. denied, 481 U.S. 1007, 107 S.Ct. 1634, 95 L.Ed.2d 207 (1987).
In August of 1987, Morrison filed a pro se petition for post-conviction relief under Rule 20, A.R.Cr.P.Temp., which was amended in October of 1987. Counsel was appointed to represent Morrison. In February of 1988, Morrison, through counsel, filed a second Rule 20 petition, which was amended in April and June of 1988. Apparently, the second petition was treated as a restatement and refinement of the original petition.
After an evidentiary hearing, the circuit court denied the petition and issued a written memorandum opinion on July 15, 1988. This appeal is from the denial of that petition.
Morrison contends that the circuit court's wholesale adoption of the State's proposed findings of fact and conclusions of law was improper.
This precise issue was decided unfavorably to the petitioner in Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 572, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985), wherein the United States Supreme Court held "that even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous."
" '[A] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'
United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).... If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)." Id, 470 U.S. at 573-74, 105 S.Ct. at 1511.
A review of the record reveals that the court's findings of fact and conclusions of law are supported by the evidence and are, therefore, not clearly erroneous. Accordingly, the circuit court's adoption of these findings and conclusions was proper.
Although Morrison objected and stated that he "would oppose permission to submit proposed findings of facts [because that] is the exclusive province of the court," he never objected to the Circuit Court's order denying the petition. Therefore, in addition to finding that this claim is without merit, we also find that this issue has not been preserved for review.
The circuit court properly found that Morrison was procedurally barred from raising the following issues: (1) prosecutor's comments during final argument to the jury, (2) prosecutor's alleged racially discriminatory use of his peremptory jury strikes, and (3) district attorney's alleged disqualification to act as a prosecutor. There was no objection to any of these matters at trial or on direct appeal. Rule 20.2(a), A.R.Cr.P.Temp., specifically provides: "A petitioner will not be given relief under this rule based upon any ground: * * * (3) which could have been but was not raised at trial, ...; or * * * (5) which could have been but was not raised on appeal...."
Morrison claims that he was denied the effective representation of both trial and appellate counsel because counsel was inexperienced and failed to properly preserve for appeal or make objection to certain matters at trial.
Morrison was represented at trial and on appeal by attorney Donald J. McKinnon. Morrison now claims that McKinnon did not have "no less than five years' prior experience in the active practice of criminal law" as required by Ala.Code 1975, § 13A-5-54. This particular allegation is made for the first time on the appeal of the denial of the petition for post-conviction relief. It was not a ground of the petition or amended petition. A petitioner for post-conviction relief may not raise on appeal grounds not presented in the petition or presented at the hearing on the petition. McKinnon was initially retained to represent Morrison at his first trial in 1978. He was appointed to represent him on retrial, which occurred in September of 1983. At that time, McKinnon had represented Morrison for more than five and one-half years, and had been engaged in the private practice of law since August of 1976. McKinnon testified that in 1983 approximately ten to fifteen percent of his legal practice involved criminal law.
Morrison alleges that McKinnon was ineffective at trial because (1) he failed to seek the disqualification of the district attorney, (2) failed to conduct an adequate jury voir dire, (3) failed to object to the prosecutor's racially discriminatory use of his peremptory jury strikes, (4) failed to object to the prosecutor's improper comments in closing argument, (5) failed to object to the improper comments of the trial judge, (6) failed to object to a pretrial hearing on the State's motion to allow the prior testimony of an expert witness on the basis of Morrison's absence, (7) failed to attempt to have tested the operating condition of the murder weapon, (8) failed to investigate Morrison's prison records, (9) exposed Morrison's prior juvenile conviction at the penalty phase of the trial, (10) failed to develop mitigating circumstances concerning that juvenile conviction, (11) failed to prepare Morrison for questioning concerning the juvenile conviction, and (12) failed to present available mitigating evidence from Morrison's family members. (13) Morrison alleges that McKinnon was ineffective on appeal because he failed to raise the issue of the prosecutor's racially discriminatory use of peremptory challenges.
We agree with the circuit court that, under the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and under the particular circumstances of this case, McKinnon's omissions and commissions in representing Morrison do not constitute ineffective assistance of counsel.
(1) McKinnon was not ineffective in not seeking to disqualify the district attorney from serving as the prosecutor. The circuit court denied this claim because Morrison failed to show that McKinnon's alleged deficient performance prejudiced the defense.
Not only has Morrison failed to show prejudice, he has also failed to show that McKinnon's failure to seek the prosecutor's removal constituted deficient performance under Strickland v. Washington, supra. We have found no instance in the trial record where the district attorney improperly injected his personal knowledge of the facts into this case or argued to the jury facts which were not in evidence. We know of no rule, and have been cited to none, which authorizes or requires the recusal of a prosecutor in a criminal case simply because that prosecutor has a personal knowledge of the facts of the case. Compare Waldrop v. State, 424 So.2d 1345, 1347-49 (Ala.Cr.App.1982), after remand, 462 So.2d 1021 (Ala.Cr.App.1984), cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618 (1985), requiring a recusal where the prosecutor testified at trial to a confession the accused made to him. Here, the district attorney was not called and did not testify as a witness. Consequently, there was no basis for his recusal. Connolly v. State, 539 So.2d 436, 438 (Ala.Cr.App.1988).
(2) We agree with the circuit court's finding that Morrison's allegation that McKinnon's voir dire of the jury venire was inadequate is meritless. The circuit court found:
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