Payne v. State

• Decision Date: 09 July 1999
• Parties: Max Landon PAYNE v. STATE.
• Court: Alabama Court of Criminal Appeals

791 So.2d 383

Max Landon PAYNE v. STATE.

CR-97-2503.

Court of Criminal Appeals of Alabama.

July 9, 1999.

Opinion on Return to Remand February 25, 2000.

Rehearing Denied April 21, 2000.

Bruce D. Nestor, Iowa City, Iowa; and Ellen L. Wiesner, Brookfield, Wisconsin, for appellant.

Bill Pryor, atty. gen., and Kathryn D. Anderson, asst. atty. gen., for appellee.

FRY, Judge.

The appellant, Max Landon Payne, appeals from the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P. In 1994, Payne was convicted of two counts of intentional murder committed during a kidnapping (§ 13A-5-40(a)(1), Ala.Code 1975) and one count of intentional murder during a robbery in the first degree (§ 13A-5-40(a)(2), Ala.Code 1975). In accordance with §§ 13A-5-45 and -46, a sentencing hearing was held before the jury, and the jury, by a vote of 11-1, recommended a sentence of death. After performing an independent weighing of the aggravating and mitigating circumstances and considering the jury's recommendation, the trial court sentenced Payne to death.

Payne's conviction and sentence of death were affirmed by this court and by the Alabama Supreme Court. Payne v. State, 683 So.2d 440 (Ala.Cr.App.1995), aff'd. 683 So.2d 458 (Ala.1996). The United States Supreme Court denied certiorari review in Payne v. Alabama, 520 U.S. 1146, 117 S.Ct. 1319, 137 L.Ed.2d 481 (1997).

On February 24, 1998, Payne, through counsel, filed a Rule 32 petition, raising numerous claims. On August 10, 1998, the circuit court dismissed Payne's petition, finding the majority of Payne's claims precluded. As for Payne's claim of ineffective assistance of appellate counsel and newly discovered evidence, the trial court "granted leave to amend the petition and/or refile on issues not adjudged as being precluded." (C.R.64.) On September 21, 1998, before filing an amended petition, Payne filed his notice of appeal, establishing this court's jurisdiction in this matter. He then filed an amended petition. We affirm the trial court's order in part and remand the case for further proceedings.

The state's evidence at the 1994 trial tended to show the following. On March 23, 1992, Braxton Brown, the owner of West Point Grocery, was robbed, abducted, and shot twice in the face. Braxton died as a result of the shotgun wounds. Testimony indicated that the robbery occurred around 8:33 p.m. on March 23, 1992. Two witnesses testified that they saw Payne at the West Point Grocery at 8:30 p.m. Payne's sister and his girlfriend testified that they saw Payne and Brown together later that evening and that they had with them three bank deposit bags and two cartons of Marlboro cigarettes. Testimony further indicated that Payne's girlfriend tried to dissuade Payne from robbing and kidnapping Brown. When Payne was arrested, law enforcement officers found various items belonging to West Point Grocery and to Braxton Brown in Payne's duffel bag.¹

On appeal, Payne contends that the trial court erred in ruling that his claims were precluded. Specifically, he argues that his claims of ineffective assistance of trial counsel and newly discovered evidence—of a Brady violation²—were not precluded. He further maintains that the trial court erred in denying his petition without conducting an evidentiary hearing.

We conduct our review of the trial court's denial of Payne's petition in light of the following principles:

"`"`The plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence.' Thompson v. State, 615 So.2d 129 (Ala. Cr.App.1992)." Cade v. State, 629 So.2d 38, 41 (Ala.Cr.App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994).'

"`In addition, "the procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed." State v. Tarver, 629 So.2d 14, 19 (Ala.Cr.App. 1993).'"

Davis v. State, 720 So.2d 1006, 1013 (Ala.Cr.App.1998)(citing Brownlee v. State, 666 So.2d 91, 93 (Ala.Cr.App.1995)).

I.

Payne contends that "the trial court incorrectly ruled that [his] claims of ineffective assistance of trial counsel were precluded because they were not raised on direct appeal." (Appellant's brief at p. 1. )

At the time of Payne's conviction, claims of ineffective assistance of trial counsel could not be considered for the first time on appeal, and the procedure outlined in Ex parte Jackson, 598 So.2d 895 (Ala. 1992), was in effect. Jackson was subsequently overruled by Ex parte Ingram, 675 So.2d 863 (Ala.1996). Payne was sentenced to death on June 13, 1994. The trial court allowed Payne's trial counsel to withdraw and it appointed appellate counsel for Payne on June 23, 1994. Because Payne was represented by different counsel at trial and on appeal, any claim of ineffective assistance of trial counsel should have been raised in a motion for a new trial in order to preserve the issue for review. Ex parte Jackson. Thus, the trial court correctly concluded that Payne's claims regarding ineffective assistance of trial counsel are procedurally barred by Rule 32.2(a)(3) and (a)(5) as claims that could have been, but were not, raised at trial or on appeal. See Bryant v. State, 739 So.2d 1138 (Ala.Cr.App.1998); Dyson v. State, 722 So.2d 782 (Ala.Cr.App.1997); Hartzog v. State, 733 So.2d 461 (Ala.Cr. App.1997); Andersch v. State, 716 So.2d 242 (Ala.Cr.App.1997); Arrington v. State, 716 So.2d 237 (Ala.Cr.App.1997); Alexander v. State, 679 So.2d 227 (Ala.1996); Covington v. State, 671 So.2d 109 (Ala.Cr.App. 1995); Alderman v. State, 647 So.2d 28 (Ala.Cr.App.1994); Ex parte Jackson, supra

. Cf. Mason v. State, 768 So.2d 981 (Ala.Cr.App.1998)(applying Ex parte Jackson in a capital case); Bush v. State, 695 So.2d 70, 128 (Ala.Cr.App.1995), aff'd, 695 So.2d 138 (Ala.), cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139 L.Ed.2d 320 (1997); and Brown v. State, 712 So.2d 1112 (Ala.Cr. App.1997).

Additionally, the following claims in Payne's petition are procedurally barred under Rule 32.2(a)(2) and (5), Ala.R.Crim. P., because they were raised and addressed at trial and could have been, but were not, raised on appeal:

1. Payne's claim that "the trial court violated his rights to due process and effective assistance of counsel when it denied his motion to have expert psychological and psychiatric assistance with the evaluation, preparation, and presentation of his defense."

2. Payne's claim that because he "was tried in Cullman County, where the killing at issue occurred and where pretrial publicity made it impossible to select a fair and impartial jury, [he] was deprived of a fair trial by an impartial jury in violation of the Constitutions and laws of the United States and the State of Alabama."

3. Payne's claim that "improper judicial rulings and conduct before, during and after the guilt and penalty phase of his trial denied him due process, a fair trial, and a reliable and fair sentencing procedure in violation of the constitutions and laws of the State of Alabama (U.S.C.A., Amendments 5, 6, 8 and 14)."

4. Payne's claim that because "his appointed counsel was the brother-in-law of the district attorney he was denied due process and his right to effective and zealous representation by counsel (U.S.C.A., Amendments 5, 6, 8 and 14)."

The following claims in Payne's petition are procedurally barred under Rule 32.2(a)(2) and (4), Ala.R.Crim.P., because they were raised and addressed at trial and/or on appeal:

1. Payne's claim that "because the judge and jury did not hear crucial mitigating evidence and because of numerous errors throughout his trial, [he] was deprived of a fair and reliable capital sentencing process in violation of the Constitutions and laws of the United States and the State of Alabama." See Payne, 683 So.2d at 456-58.

2. Payne's claim that "it would be a gross miscarriage of justice to allow [his] current conviction and sentence of death to stand because [he] is actually innocent of the capital offense for which he was convicted." See Payne, 683 So.2d at 456-58.

3. Payne's claim that "the trial court denied [him] due process by duplicating the finding of conviction as the sole factor of aggravation, and because the aggravator was not any narrower than the underlying crime (U.S.C.A., Amendments 5, 8, and 14)." See Payne, 683 So.2d at 456-58.

The following claims in Payne's petition are procedurally barred under Rule 32.2(a)(3) and (5), Ala.R.Crim.P., because they could have been, but were not, raised and addressed at trial or on appeal:

1. Payne's claim that he "was denied effective assistance of counsel due to trial counsel's failure to obtain and utilize competent psychiatric and psychological assistance in the evaluation, preparation, and presentation of [his] defense."

2. Payne's claim that the "trial court's lengthy oral instruction on the definition of reasonable doubt standard was inconsistent, diluted the reasonable doubt standard, and permitted the jury to substitute a moral certainty and fair-minded person standard for a juror's individual evidentiary standard of beyond a reasonable doubt, all in violation of [his] rights to due process of law and his entitlement to effective assistance of counsel."

3. Payne's claim that he "was denied effective assistance of counsel due to his trial attorney's failure to present at sentencing persuasive and available mitigation evidence, denying [him] a fair and reliable sentencing process and violating his rights under the Constitutions and laws of the United States and State of Alabama."

4. Payne's claim that the trial court denied him due process by failing to find as a mitigating factor Payne's lack of a significant criminal history.

5. Payne's claim that "the trial court violated [his] due process rights by failing to find as a factor of statutory and/or nonstatutory mitigation that James Beavers admitted the commission of the killing and [that] Mr. Payne's role in the capital offense was

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