Pierce v. State

• Decision Date: 02 March 1999
• Citation: 851 So.2d 558
• Parties: Andy Dwight PIERCE v. STATE.
• Court: Alabama Court of Criminal Appeals

851 So.2d 558

Andy Dwight PIERCE v. STATE.

CR-96-1668.

Court of Criminal Appeals of Alabama.

March 2, 1999.

Rehearing Applications Denied April 30, 1999.

Ellen Louise Wiesner, Montgomery, for appellant.

William H. Pryor, Jr., atty. gen.; and Jeremy W. Armstrong and Beth Jackson Hughes, asst. attys. gen., for appellee.

BASCHAB, Judge.

This case was originally assigned to another Judge on the Alabama Court of Criminal Appeals. It was reassigned to me on November 9, 1998.

On January 26, 1989, the appellant, Andy Dwight Pierce, was convicted of capital murder for killing Annie Ruth Brooks during the course of a robbery, see § 13A-5-40(a)(2), Ala.Code 1975. The jury, by a 10-2 vote, recommended the death penalty. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution. He appealed, and this court affirmed his conviction. Pierce v. State, 576 So.2d 236 (Ala.Cr.App. 1990). However, we remanded the case for resentencing because a victim impact statement containing improper information had been admitted during the sentencing phase of his trial. Id. On return to remand, this court remanded the case for a hearing to determine whether the prosecution could provide race-neutral reasons for its use of peremptory challenges to remove blacks from the jury venire. Pierce v. State, 586 So.2d 1005 (Ala.Cr.App.1991). On second return to remand, this court found that the prosecution had offered race-neutral reasons for its strikes and that the trial court had properly resentenced the appellant to death. Pierce v. State, 612 So.2d 514 (Ala.Cr.App.1992). The Alabama Supreme Court affirmed the conviction and sentence, Ex parte Pierce, 612 So.2d 516 (Ala.1992), and the United States Supreme Court denied the appellant's petition for certiorari review. Pierce v. Alabama, 510 U.S. 872, 114 S.Ct. 201, 126 L.Ed.2d 158 (1993). This court issued a certificate of judgment on February 3, 1993. The relevant facts of the case are set forth in the above-referenced opinions.

On December 2, 1994, the appellant filed a petition for post-conviction relief pursuant to Rule 32, Ala. R.Crim. P. The State responded, arguing that the appellant's claims were either precluded or lacked merit. On February 13, 1996, the circuit court summarily dismissed several substantive claims the appellant had raised in his petition, finding that they were precluded because the appellant could have raised, or did raise, the claims at trial or on direct appeal. Rule 32.2(a)(2), (3), (4), and (5), Ala. R.Crim. P. The circuit court ordered that an evidentiary hearing be held on the appellant's remaining claims, which included ineffective-assistance-of-counsel, Brady, and juror-misconduct claims. On August 8, 1996, the appellant amended his Rule 32 petition, and the State again responded that the claims were precluded or lacked merit. Following an evidentiary hearing, the circuit court, by order entered March 25, 1997, denied relief on the appellant's remaining claims. This appeal follows.

The appellant raises substantive claims alleging errors during his trial and claims that his counsel rendered ineffective assistance during his trial. In reviewing the circuit court's denial of the appellant's petition, we are mindful of the following principles:

"`"[T]he 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.Crim.App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994).

"In addition, `[t]he 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.Crim.App. 1993)."

Brownlee v. State, 666 So.2d 91, 93 (Ala. Cr.App.1995).

"To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

"`The appellant must show that his counsel's performance was unreasonable, considering all of the attendant circumstances.... "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.'

"Duren v. State, 590 So.2d 360, 362 (Ala. Cr.App.1990), aff'd, 590 So.2d 369 (Ala. 1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992).

"When this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App.1985). The burden is on the appellant to show that his counsel's conduct was deficient. Luke.

"`Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act, or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.'

"Strickland, 466 U.S. at 689, 104 S.Ct. at 2065-66. (Citations omitted.) Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).

"Initially we must determine whether counsel's performance was deficient. We must evaluate whether the action or inaction of counsel of which the petitioner complains was a strategic choice. `Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengeable....' Lawley, 512 So.2d at 1372. This court must avoid using `hindsight' to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance. Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991)."

Hallford v. State, 629 So.2d 6, 8-9 (Ala.Cr. App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994).

"In determining whether a defendant has established his burden of showing that his counsel was ineffective, we are not required to address both considerations of the Strickland v. Washington test if the defendant makes an insufficient showing on one of the prongs. Id. at 697, 104 S.Ct. at 2069. In fact, the Court explained that `[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' Id. We defer to this guidance and address the `prejudice' prong, for `[w]ith respect to the prejudice component, the lack of merit of [Thomas's] claim is even more stark.' Id. at 699, 104 S.Ct. at 2070."

Thomas v. State, 511 So.2d 248, 255 (Ala. Cr.App.1987) (footnote omitted).

"Furthermore, to render effective assistance, an attorney is not required to raise every conceivable constitutional claim available at trial and on appeal. Holladay v. State, 629 So.2d 673 (Ala.Cr. App.1992), cert. denied, 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994); McCoy v. Lynaugh, 874 F.2d 954, 965-66 (5th Cir.1989). Rather, counsel must be given some discretion in determining which claims possibly have merit, and, thus a better chance of success, and which claims do not have merit, and, thus have little chance of success. Heath v. State, 536 So.2d 142 (Ala.Cr. App.1988); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)."

Davis v. State, 720 So.2d 1006, 1014 (Ala. Cr.App.1998).

Finally, the judge who presided over the appellant's trial also presided over the Rule 32 proceedings. "In some cases, recollection of the events at issue by the judge who presided at the original conviction may enable him summarily to dismiss a motion for postconviction relief." Little v. State, 426 So.2d 527, 529 (Ala.Cr.App. 1983). See also Holland v. State, 621 So.2d 373, 375 (Ala.Cr.App.1993), opinion extended after remand, 654 So.2d 77 (Ala. Cr.App.1994); Ex parte Hill, 591 So.2d 462, 463 (Ala.1991); Sheats v. State, 556 So.2d 1094, 1095 (Ala.Cr.App.1989).

I.

The appellant's first contention is that extraneous influences on the jury during his trial deprived him of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and under Alabama law. Specifically, he claims that Sheriff Douglas Whittle was a key State witness who had improper close and continual contact with the jury throughout the trial, thus violating Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). For several reasons, we disagree.

At the outset, we hold that the appellant has not satisfied his burden of proving that the alleged improper contacts between Whittle and the jury constitute newly discovered evidence. Therefore, the circuit court correctly found that the appellant's claim concerning Whittle's alleged improper contact with jurors was procedurally barred because the...