Neelley v. State

• Decision Date: 18 June 1993
• Docket Number: CR-91-1036
• Citation: 642 So.2d 494
• Parties: Judith Ann NEELLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 494

642 So.2d 494

Judith Ann NEELLEY v. STATE.

CR-91-1036.

Court of Criminal Appeals of Alabama.

June 18, 1993.

As Modified on Denial of Rehearing

Aug. 13, 1993.

F. Timothy McAbee and Barry A. Ragsdale, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Melissa Math, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of the murder, made capital because it was committed during a kidnapping, of 13-year-old Lisa Ann Millican. The trial court sentenced the appellant to death, overriding the jury's recommendation of life imprisonment without parole. On direct appeal, the appellant's conviction and sentence of death were affirmed by this court and this court's judgment was affirmed by the Alabama Supreme Court. The United States Supreme Court denied the appellant's petition for a writ of certiorari. Neelley v. State, 494 So.2d 669 (Ala.Cr.App.1985), affirmed, 494 So.2d 697 (Ala.1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1389, 94 L.Ed.2d 702 (1987). The appellant filed her first post-conviction petition, pursuant to Rule 20, A.R.Cr.P.Temp., on May 18, 1987. An evidentiary hearing on the petition was conducted, following which the trial court denied the petition. This denial was affirmed by this court, without opinion and the Alabama Supreme Court denied certiorari review, as did the United States Supreme Court. The present petition was filed on October 12, 1989, pursuant to Rule 20, A.R.Cr.P.Temp., and the appellant amended that petition on November 27, 1989. The State responded on December 8, 1989, and, on February 22, 1990, the trial court dismissed a majority of the claims and ordered an evidentiary hearing on the claims alleging that counsel was ineffective and that the appellant had not been competent to stand trial. This hearing was held in January 1991 and on August 8, 1991, the appellant filed a motion to again amend the petition, which motion the trial court denied on February 27, 1992. On that same date, the trial court filed an order denying the appellant relief of all claims asserted in the petition as originally amended.

I

The appellant argues that the issues that she raised and that were dismissed by the trial court on procedural grounds, should have been discussed on the merits, pursuant to Rule 45A, A.R.App.P. However, it is well settled that the plain error rule applies only on direct appeal and not in collateral review proceedings. Ex parte Clisby, 501 So.2d 483, 484 (Ala.1986); Thompson v. State, 581 So.2d 1216, 1218-19 (Ala.Cr.App.1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992); Duren v. State, 590 So.2d 360, 368-69 (Ala.Cr.App.1990), affirmed, 590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992); Wright v. State, 593 So.2d 111, 119 (Ala.Cr.App.1991), cert. denied, 506 U.S. 844, 113 S.Ct. 132, 121 L.Ed.2d 86 (1992); Bell v. State, 593 So.2d 123, 126 (Ala.Cr.App.1991), cert. denied, 504 U.S. 991, 112 S.Ct. 2981, 119 L.Ed.2d 599 (1992). Therefore, we find no error in the trial court's refusal to review these claims.

II

The appellant argues that the trial court abused its discretion in denying her second motion to amend her petition. In that amendment to her petition, the appellant alleged racial discrimination in the selection of jurors, an improper jury instruction on reasonable doubt, and the unconstitutionality of the Alabama statute concerning compensation of attorneys in capital cases, § 15-12-21, Code of Alabama. These latter two issues are addressed by the appellant on this appeal. The trial court denied the appellant's motion to amend on the grounds that the amendment "comes after the evidentiary hearing was completed in the case and is not based upon surprise, newly discovered evidence or changed circumstances."

"Rule 20.7(b) of the Alabama Temporary Rules of Criminal Procedure [now Rule 32.7(b), Alabama Rules of Criminal Procedure] reads as follows: 'Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment.' (Emphasis added [in Cochran ].) The clear import of the language used in Rule 20.7(b) [Rule 32.7(b) ] is that a petitioner does not have an absolute right to amend his petition prior to the entry of judgment.

" 'Amendments are to be freely allowed when justice requires.' Ex parte Tidmore, 418 So.2d 866, 868 (Ala.1982). '[A]mendments should be freely allowed and ... trial judges must be given discretion to allow or refuse amendments.... The trial judge should allow a proposed amendment if it is necessary for a full determination on the merits and if it does not unduly prejudice the opposing party or unduly delay the trial.' Record Data International, Inc. v. Nichols, 381 So.2d 1, 5 (Ala.1979) (citations omitted). 'The grant or denial of leave to amend is a matter within the sound discretion of the trial judge and is subject to reversal on appeal only for an abuse of that discretion. Walker v. Traughber, 351 So.2d 917 (Ala.Civ.App.1977). The trial court acts within its discretion so long as its disallowance of an amendment of pleadings is based upon some valid ground, such as an actual prejudice or undue delay. Poston v. Gaddis, 372 So.2d 1099 (Ala.1979).' Ex parte Reynolds, 436 So.2d 873, 874 (Ala.1983). Although the cases cited in this paragraph deal with the interpretation of Rule 15, A.R.C.P. [Temp.], the principles expressed have equal application here."

Cochran v. State, 548 So.2d 1062, 1075 (Ala.Cr.App.1989). In Cochran, defendant attempted to amend his petition eight months after it had originally been filed, after the evidentiary hearing had begun, after the circuit court had ruled on a related ground asserted in his petition, and after having previously filed a motion to amend. This court held:

"Cochran cannot claim that his proposed amendment was based on surprise, newly discovered evidence, or changed circumstances. 'Courts may properly refuse permission to amend ... where there is no showing of diligence or that the facts were unknown to the applicant prior to his application.' 61 Am.Jur.2d, § 312 at 301 (1981). See also Robinson v. Kierce, 513 So.2d 1005, 1006-07 (Ala.1987); National Distillers and Chemical Corp. v. American Laubscher Corp., 338 So.2d 1269, 1273-75 (Ala.1976)."

Id. See also Whitehead v. State, 593 So.2d 126 (Ala.Cr.App.1991). In this case, where the appellant failed to file the motion for leave to amend until seven months after the evidentiary hearing had been held and because the claims asserted in that amendment were not based on surprise, newly discovered evidence, or changed circumstance, we find no abuse of discretion by the trial court. The appellant attempts to raise in her brief to this court the same claims that were included in the second amendment; these claims are procedurally barred. Rules 20.2(a)(3), 20.2(a)(5), 20.2(b), A.R.Cr.P.Temp.

III

The appellant argues that one of the attorneys who represented her at trial and on appeal engaged in unprofessional, unethical, and immoral conduct, which she says, indicated a complete lack of judgment and rationality, and resulted in ineffective assistance of counsel. The appellant cites the attorney's unconventional beliefs, questionable emotional stability, and offering her illegal drugs on several occasions.

In his order, the trial judge addressed this claim as follows:

"In support of this allegation petitioner cites counsel's testimony that he is a mystic, that he is clairvoyant and a prophet, that he hears voices and responds to them, and that he possesses the paranormal power to 'sparkle' and to send 'blue beams of energy.'

"It is not unfair to characterize trial counsel's behavior cited above as eccentric and unorthodox. There has been no showing and there is no evidence, however, that this behavior interfered with or adversely affected counsel's representation of petitioner, and without a nexus between such beliefs and practices to his trial preparation or performance, they provide no basis for finding that his performance was deficient or his assistance ineffective.

"Petitioner also alleges that counsel provided her with illegal drugs on several occasions. The only evidence to support this allegation is testimony of the petitioner. Counsel denies the allegation and testified that he was strip-searched every time that he went to visit petitioner at the penitentiary. The court finds that counsel did not provide petitioner with drugs."

The attorney testified that he did have spiritual views that may seem unusual, but that he did not believe that his views hindered, or in any way affected, his representation of the appellant. He testified that he took no action and based no decisions at trial on his belief in paranormal experiences. Moreover, the appellant has presented no evidence to support her allegation that her attorney's performance was affected in any way by his beliefs.

As to the appellant's allegation that her attorney provided her with illegal drugs, he denied this allegation and testified that he was searched by prison officials prior to each visit with the appellant.

"The trial court, when deciding this issue, faced a credibility question.... We accord the trial court's ruling deference. The trial court was in a better position than this court to rule on this question because the trial judge was able to observe the demeanor of the witness."

Hallford v. State, 629 So.2d 6 (Ala.Cr.App.1992). See also Spinks v. State, 564 So.2d 1043, 1046 (Ala.Cr.App.1990); State v. Terry, 601 So.2d 161 (Ala.Cr.App.1992).

"In giving meaning to the [constitutional requirement of effective assistance of counsel] ... we must take its purpose--to ensure a fair trial--as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

"....

"A convicted defendant's claim...