State v. Lasamuel Lee Gamble.Lasamuel Lee Gamble v. State , CR–06–2274.

• Decision Date: 01 October 2010
• Docket Number: CR–06–2274.
• Citation: State v. Lasamuel Lee Gamble.Lasamuel Lee Gamble v. State , 63 So.3d 707 (Ala. Crim. App. 2010)
• Parties: STATE of Alabamav.LaSamuel Lee GAMBLE.LaSamuel Lee Gamblev.State of Alabama.
• Court: Alabama Court of Criminal Appeals

63 So.3d 707

STATE of Alabama

v.LaSamuel Lee GAMBLE.LaSamuel Lee Gamble

v.State of Alabama.

CR–06–2274.

Court of Criminal Appeals of Alabama.

Oct. 1, 2010.

Troy King, atty. gen., and Henry M. Johnson, asst. atty. gen., for appellant/cross-appelleeState of Alabama.Lauren Sudeall Lucas and William Robert Montross, Jr., Atlanta, Georgia, for appellee/cross-appellant LaSamuel Lee Gamble.WELCH, Judge.

The State of Alabama appeals the circuit court's order granting, in part, LaSamuel Lee Gamble's postconviction petition attacking his capital-murder conviction and sentence of death.¹Gamble filed a cross-appeal from the circuit court's partial denial of claims in his postconviction petition.

In November 1998, Gamble was convicted of capital murder.The jury recommended, by a vote of 10 to 2, that Gamble be sentenced to death.The circuit court followed the jury's recommendation and sentenced Gamble to death.We affirmed Gamble's capital-murder conviction but remanded the case to the circuit court for that court to consider the statutory mitigating circumstance that Gamble had no significant history of prior criminal activity and for that court to reweigh the aggravating and the mitigating circumstances.SeeGamble v. State,791 So.2d 409(Ala.Crim.App.2000).On return to remand, we affirmed Gamble's death sentence.SeeGamble v. State,791 So.2d at 449.The Alabama Supreme Court and the United States Supreme Court denied certiorari review.SeeGamble v. State(No. 1992229, March 2, 2001), andGamble v. Alabama,534 U.S. 858, 122 S.Ct. 135, 151 L.Ed.2d 88(2001).

In September 2002, Gamble filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P., attacking his conviction and sentence.Gamble filed amended petitions in March 2003, November 2003, and November 2004.After an evidentiary hearing in June 2006, the circuit court issued a 131–page order finding that Gamble's trial counsel had been ineffective at the penalty phase of Gamble's trial because counsel did not investigate and present any mitigating evidence and that Gamble could no longer be sentenced to death because his more culpable codefendant, Marcus Presley, had had his sentence commuted to life imprisonment without the possibility of parole because Presley was 16 years of age at the time of the murders.The State appealed the circuit court's order granting, in part, Gamble's Rule 32 petition.SeeRule 4(b)(1), Ala. R.App. P., andRule 32.10, Ala. R.Crim. P. Gamble also appealed from the circuit court's order insofar as it denied a claim of ineffective assistance of counsel related to the penalty phase of his capital-murder trial.

The State's evidence at Gamble's capital-murder trial showed the following:

“On July 25, 1996, Gamble and his accomplices, Marcus Presley and Steven McKenzie,² robbed ‘John's 280 Pawn,’ a pawnshop on Highway 280 in Shelby County.During the robbery, Presley killed John Burleson, the owner of the pawnshop, and Janice Littleton, an employee of the pawnshop, by shooting them in the head.A surveillance camera inside the pawnshop captured the entire robbery on videotape, including Gamble's participation in the robbery and the murders and Presley's shooting of Burleson and Littleton.³ Events depicted on the videotape revealed that approximately 30 minutes before the robbery, Presley entered the pawnshop, looked around, and asked Burleson about some merchandise in the store.Presley left, and at approximately 3:20 p.m., he returned, this time accompanied by Gamble (McKenzie did not come inside the pawnshop during the robbery, but waited outside in the car).Both men were armed with handguns.Gamble and Presley forced Burleson and Littleton to lie down on the floor behind the counter while they spent approximately 30 minutes going through the pawnshop, taking jewelry, guns, and cash from the cash register.Before leaving the store, Presley approached Burleson and Littleton, who were still lying on the floor; he leaned over the counter, and fired one shot.The videotape showed that after Presley fired the shot, his gun jammed.While he was trying to unjam his gun, Presley turned and motioned to Gamble, who was standing just outside the front door.Gamble walked to where Presley was standing, and then returned to the front door.Presley fired his gun at the victims a second time; his gun again jammed.At that point, Gamble began picking up unspent bullets that had fallen out of Presley's gun when Presley was trying to unjam it.Presley fired one more shot at the victims.The videotape showed that Gamble then leaned over the counter and looked at the victims on the floor.The two men then quickly left the pawnshop.

“Testimony revealed that Presley shot Burleson twice in the head and Littleton once in the head.Burleson was dead when the police arrived at the pawnshop.Littleton was still alive when the police arrived, but she died later that day at the hospital from the gunshot wound.

“The day following the robbery-murders, Gamble and his accomplices traveled by bus to Boston, Massachusetts, where they remained for approximately one week.McKenzie was arrested in Boston on August 1, 1996.Information given to police by McKenzie led to the arrests of Gamble and Presley on August 9, 1996, in Norfolk, Virginia.Both Gamble and Presley gave statements to police officers in Virginia before they were returned to Alabama.On August 19, 1996, Gamble and Presley gave second statements to investigators with the Shelby County, Alabama, Sheriff's Office.Items identified as being stolen from the pawnshop were found in the possession of McKenzie, Gamble, and Presley after their arrests.Some of the items stolen from the pawnshop were also found in Gamble's mother's house in Birmingham.

_________________________

² “The record shows that McKenzie, who waited outside of the pawnshop in the car during the robbery and murders, pleaded guilty, pursuant to a plea agreement with the State, to two counts of murder.

³“There was no audio on the videotape.”

Gamble,791 So.2d at 415–16(footnote omitted).

Standard of Review

“When reviewing a circuit court's ruling on a Rule 32 petition, we apply an abuse-of-discretion standard.Reed v. State,748 So.2d 231(Ala.Crim.App.1999).On direct appeal we reviewed the record for plain error; however, the plain-error standard of review does not apply to a Rule 32 proceeding attacking a death sentence.SeeHill v. State,695 So.2d 1223(Ala.Crim.App.1997).”Ferguson v. State,13 So.3d 418, 424(Ala.Crim.App.2008).However, “when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo.”Ex parte White,792 So.2d 1097, 1098(Ala.2001).The de novo standard gives no deference to the lower court's findings.SeeHooks v. State,21 So.3d 772(Ala.Crim.App.2008).

I.

The State argues that the circuit court erred in concluding that Gamble's trial counsel were ineffective for failing to investigate and present mitigation evidence at the penalty phase of his capital-murder trial.

When evaluating claims of ineffective assistance of counsel, we use the standard articulated by the United States Supreme Court in Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).In order to prove that counsel was ineffective, the petitioner must show that: (1)counsel's performance was ineffective; and (2)he was prejudiced by the ineffective performance.

“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.Cf.Engle v. Isaac,456 U.S. 107, 133–34(1982).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.’SeeMichel v. Louisiana, [350 U.S. 91], at 101[ (1955) ].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 v. Washington,466 U.S. at 689.

“[T]he purpose of ineffectiveness review is not to grade counsel's performance.SeeStrickland [ v. Washington], 104 S.Ct. [2052] at 2065[ (1984) ];see alsoWhite v. Singletary,972 F.2d 1218, 1221(11th Cir.1992)(‘We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.’).We recognize that ‘[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.’Strickland,104 S.Ct. at 2067.Different lawyers have different gifts; this fact, as well as differing circumstances from case to case, means the range of what might be a reasonable approach at trial must be broad.To state the obvious: the trial lawyers, in every case, could have done something more or something different.So, omissions are inevitable.But, the issue is not what is possible or ‘what is prudent or appropriate, but only what is constitutionally compelled.’Burger v. Kemp,483 U.S. 776, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638(1987).”

Chandler v. United States,218 F.3d 1305, 1318–19(11th Cir.2000)(footnotes omitted).

In regard to an attorney's duty to...