State v. Gissendanner, CR-09-0998

• Decision Date: 10 February 2017
• Docket Number: CR-09-0998
• Parties: State of Alabama v. Emanuel Aaron Gissendanner, Jr.
• Court: Alabama Court of Criminal Appeals

State of Alabama v. Emanuel Aaron Gissendanner, Jr.

CR-09-0998

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2016-2017

February 10, 2017

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Dale Circuit Court

(CC-01-350.60)

On Return to Remand

WELCH, Judge.

The State initially appealed from the order of Dale Circuit Court granting the request of Emanuel Aaron Gissendanner, Jr., for Rule 32, Ala. R. Crim. P., postconviction relief; in that order, the circuit court set aside Gissendanner's capital-murder convictions and sentences of death. This Court remanded the case to the circuit court, requiring the circuit court to consider certain issues it had not considered because it had granted postconviction relief on another basis. See State v. Gissendanner, [Ms. CR-09-0998, October 23, 2015] ___ So. 3d ___ (Ala. Crim. App. 2015). As set forth in more detail below, this case is now before this Court on return to remand.

In 2003, Gissendanner was convicted of murdering Margaret Snellgrove during the course of a kidnapping and during the course of a robbery and of possessing or uttering a forged instrument. He was sentenced to death. Gissendanner's capital-murder convictions and sentences of death were affirmed on direct appeal. See Gissendanner v. State, 949 So. 2d 956 (Ala. Crim. App. 2006).

In August 2007, Gissendanner filed a timely postconviction petition pursuant to Rule 32, Ala. R. Crim. P., attacking his capital-murder conviction and sentences. In March 2010, the circuit court found that Gissendanner had been denied his constitutional right to the effective assistance ofcounsel during the guilt phase of his capital-murder trial and granted Gissendanner postconviction relief. The State appealed that ruling. See Rule 32.10(a), Ala. R. Crim. P.

In December 2014, this Court reversed the circuit court's ruling and directed that court to reinstate Gissendanner's capital-murder convictions and sentences of death. On application for rehearing, however, this Court withdrew its original opinion, determined that the circuit court had erred in ruling that counsel were ineffective at the guilt phase of Gissendanner's trial, and remanded the case to the circuit court with directions to make specific findings of fact on certain claims that Gissendanner had raised concerning the penalty phase of his trial that had not been specifically addressed in the circuit court's order granting postconviction relief. See State v. Gissendanner, ___ So. 3d at ___.

This case is now before this Court on return to remand. Gissendanner requested, and was granted, leave to file a brief on return to remand. We now address these issues raised in that brief.

Standard of Review

Gissendanner's capital-murder trial was presided over by, and his Rule 32 was originally assigned to, Judge Kenneth Wesley Quattlebaum; however, Judge Quattlebaum retired from the bench in March 2015 while this case was pending on application for rehearing, and the case was reassigned to Judge Kimberly Clark. Thus, when this Court remanded the case to the lower court, the judge who had presided over Gissendanner's capital-murder trial and the proceedings on Gissendanner's Rule 32 petition could not consider the issues on remand. In fact, in our previous opinion remanding this case, this Court directed Judge Clark to base her decision on the existing record. ___ So. 3d at ___. In Ex parte Hinton, 172 So. 3d 348 (Ala. 2012), the Alabama Supreme Court stated that when a lower court bases a decision on certain claims on a "cold ... record" the lower court is in no better position than a reviewing court and, thus, that the appellate court will review those claims using the de novo standard of review. 172 So. 3d at 353. "The de novo standard gives no deference to the lower court's findings." State v. Gamble, 63 So. 3d 707, 711 (Ala. Crim. App. 2010).

In considering a claim of ineffective assistance of counsel, we apply the standard announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The petitioner must establish: (1) that counsel's performance was deficient, and (2) that the petitioner was prejudiced by counsel's deficient performance.

"'The test for ineffectiveness is not whether counsel could have done more; perfection is not required. E.g., Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992) ("Trial counsel did enough. A lawyer can almost always do something more in every case. But the Constitution requires a good deal less than maximum performance."). Nor is the test whether the best criminal defense attorneys might have done more. Instead, the test is whether some reasonable attorney could have acted, in the circumstances, as these two did -- whether what they did was within the "wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).'"

Ray v. State, 80 So. 3d 965, 981-82 (Ala. Crim. App. 2011), quoting Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir. 1995).

The Ray Court further explained:

"'"[F]ailure to investigate possible mitigating factors and failure to present mitigating evidence at sentencing can constitute ineffective assistance ofcounsel under the Sixth Amendment." Coleman [v. Mitchell], 244 F.3d [533] at 545 [(6th Cir. 2001) ]; see also Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Our circuit's precedent has distinguished between counsel's complete failure to conduct a mitigation investigation, where we are likely to find deficient performance, and counsel's failure to conduct an adequate investigation, where the presumption of reasonable performance is more difficult to overcome.

"'"[T]he cases where this court has granted the writ for failure of counsel to investigate potential mitigating evidence have been limited to those situations in which defense counsel have totally failed to conduct such an investigation. In contrast, if a habeas claim does not involve a failure to investigate but, rather, petitioner's dissatisfaction with the degree of his attorney's investigation, the presumption of reasonableness imposed by Strickland will be hard to overcome."

"'Campbell v. Coyle, 260 F.3d 531, 552 (6th Cir. 2001) (quotation omitted) ...; see also Moore v. Parker, 425 F.3d 250, 255 (6th Cir. 2005). In the present case, defense counsel did not completely fail to conduct an investigation for mitigating evidence. Counsel spoke with [the defendant's] parents prior to [the] penaltyphase of trial (although there is some question as to how much time counsel spent preparing [the defendant's] parents to testify), and presented his parents' testimony at the sentencing hearing. Defense counsel also asked the probation department to conduct a presentence investigation and a psychiatric evaluation. While these investigatory efforts fall far short of an exhaustive search, they do not qualify as a complete failure to investigate. See Martin v. Mitchell, 280 F.3d 594, 613 (6th Cir. 2002) (finding that defense counsel did not completely fail to investigate where there was "limited contact between defense counsel and family members," "counsel requested a presentence report," and counsel "elicited the testimony of [petitioner's] mother and grandmother"). Because [the defendant's] attorneys did not entirely abdicate their duty to investigate for mitigating evidence, we must closely evaluate whether they exhibited specific deficiencies that were unreasonable under prevailing professional standards. See Dickerson v. Bagley, 453 F.3d 690, 701 (6th Cir. 2006).'

"Beuke v. Houk, 537 F.3d 618, 643 (6th Cir. 2008). '[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying heavy measure of deference to counsel's judgments.' Wiggins, 539 U.S. at 521-22, 123 S.Ct. 2527. 'A defense attorney is not required to investigate all leads....' Bolender v. Singletary, 16 F.3d 1547, 1557 (11th Cir. 1994). 'A lawyer can almost always do something more in every case. But the Constitution requires a good deal less than maximum performance.' Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992). 'The attorney's decision not to investigate must not be evaluated with the benefit of hindsight, but accorded a strongpresumption of reasonableness.' Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir. 1985)."

80 So. 3d at 983-84. With these principles in mind, we review the claims raised by Gissendanner in his brief on return to remand.

I.

Gissendanner argues that the circuit court failed to comply with this Court's remand instructions because, he says, the court failed to make specific findings of fact on each penalty-phase ineffective-assistance claim that had not been previously addressed in the court's original order granting postconviction relief. However, Gissendanner does not request that this Court remand this case so that the circuit court may fully comply with this Court's instructions. Instead, Gissendanner requests that we reverse the circuit court's order on remand determining that those claims of ineffective of assistance of counsel were without merit. (Gissendanner's brief on return to remand, p. 40.)

This Court gave the following instructions to the circuit court when remanding this case:

"Because the circuit court granted the petition for relief as to the guilt-phase claims, the circuit court, at that time, did not address Gissendanner'spenalty-phase claims of ineffective assistance of counsel. However, because this

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