State v. Tarver, CR-91-1494

• Court: Alabama Court of Criminal Appeals
• Citation: 629 So.2d 14
• Docket Number: CR-91-1494A,CR-91-1494
• Parties: STATE v. Robert Lee TARVER, Jr. Robert Lee TARVER, Jr. v. STATE.
• Decision Date: 26 March 1993

Page 14

629 So.2d 14 STATE
v.
Robert Lee TARVER, Jr.
Robert Lee TARVER, Jr.
v.
STATE. CR-91-1494, CR-91-1494A. Court of Criminal Appeals of Alabama. March 26, 1993.
As Corrected on Denial of Rehearing
May 28, 1993.
Certiorari Quashed Dec. 10, 1993
Alabama Supreme Court 1921372.

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James H. Evans, Atty. Gen., and Sandra J. Stewart, Asst. Atty. Gen., for appellant/cross-appellee.

Gregory L. Benik and James S. Judd, Providence, RI, and Margaret Brown, Auburn, for appellee/cross-appellant.

TAYLOR, Judge.

The appellant, Robert Lee Tarver, Jr., was found guilty of murder made capital because the murder was committed during the course of a robbery. Section 13A-5-40(a)(2), Code of Alabama 1975. The jury recommended that the appellant be sentenced to life without

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parole. The trial court overrode the jury's recommendation and sentenced the appellant to death by electrocution. We affirmed appellant's conviction on appeal. Tarver v. State, 500 So.2d 1232 (Ala.Cr.App.1986). The Alabama Supreme Court affirmed this court's judgment. Ex parte Tarver, 500 So.2d 1256 (Ala.1986), and the United States Supreme Court denied certiorari review. Tarver v. Alabama, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987).

The appellant filed a petition for post-conviction relief pursuant to Rule 32, A.R.Crim.P., attacking his conviction and the sentence of death. The trial court held a hearing on the petition and denied the requested relief as to the appellant's conviction but granted the relief as to his sentence, ordering that a new sentencing hearing be held. The trial court found that the appellant's trial counsel, at the original sentencing hearing, had rendered ineffective assistance because he had not adequately prepared and because he had failed to call additional witnesses. The state appeals the court's granting of the petition as to the new sentencing hearing; the appellant appeals the denial of his relief as to his conviction.

In his petition, the appellant makes numerous allegations concerning the performance both of his trial and of his appellate counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that he was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This court must avoid using the benefit of hindsight and must evaluate the counsel's conduct at the time of its occurrence. Ex parte Lawley, 512 So.2d 1370 (Ala.1987). "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)." Hallford v. State, 629 So.2d 6, 9 (Ala.Cr.App.1992).

"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). "Counsel's conduct must be considered within the context of the facts of the particular case and as of the time of the alleged misconduct." Ex parte Baldwin, 456 So.2d 129, 134 (Ala.1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985).

I

Initially, the appellant argues that his trial counsel rendered ineffective assistance for failing to make a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), objection after the jury was selected. The appellant's trial took place before the United States Supreme Court's decision in Batson was released. The case of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), in which the Supreme Court held that Batson applied retroactively to all cases not yet final at the time Batson was released, was released approximately six months before the United States Supreme Court denied certiorari review in this case. This court on many occasions has refused to hold counsel's performance ineffective for

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failing to forecast changes in the law. Duren v. State, 590 So.2d 360 (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); James v. State, 564 So.2d 1002 (Ala.Cr.App.1989); Morrison v. State, 551 So.2d 435 (Ala.Cr.App.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990).

The appellant also argues that his appellate counsel's performance was ineffective for failing to argue on appeal that a Batson violation had occurred.

"At the time of the trial in this case, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), was the law.

" 'Under Swain, a defendant alleging that the prosecution exercised its peremptory challenges to discriminate unlawfully against a particular group had to demonstrate that the State had systematically excluded members of that group from juries over a period of time.'

"James [v. State], 564 So.2d [1002] at 1005 [Ala.Cr.App.1989]. When a defendant was tried under the rules applicable in Swain, there was no procedure to preserve a record such as that contemplated under the Batson decision."

Watkins v. State, [Ms. 90-989, September 30, 1992] 1992 WL 240968, * 10 (Ala.Cr.App.1992) (Taylor, J., dissenting.) In this case appellate counsel was different than trial counsel and there was nothing in the record on direct appeal to support a Batson objection. At the time of the appellant's trial there was no procedure such as the one currently employed, to preserve a Batson objection.

A majority of this court held in Watkins that appellate counsel's performance was ineffective when counsel raised a Batson objection on appeal, but failed to supplement the record pursuant to 10(f), now 10(g), A.R.App.P. to include the jury lists. However on certiorari review from his capital murder conviction, in Ex parte Watkins, 509 So.2d 1074 (Ala.1987), this issue had been specifically raised on appeal to the Alabama Supreme Court and the issue was decided adversely to the appellant because the record did not support the claim. Here, a Batson claim was never raised before this Rule 32 proceeding.

Furthermore, a criminal defendant is guaranteed one appeal from his conviction, and that appeal is to this court. The Alabama Supreme Court has limited mandatory jurisdiction, which includes appeals from death penalty cases and discretionary jurisdiction through certiorari review. " 'The appellant is entitled to effective assistance of counsel on first appeal of right.' " Cunningham v. State, 611 So.2d 510, 511 (Ala.Cr.App.1992), quoting Knotts v. State, 535 So.2d 202, 204 (Ala.Cr.App.1987). At the time of the appellant's appeal "of right" to this court, there was no procedure by which a Batson claim could be raised and indeed no case law that held that Batson applied retroactively to all cases not final at the time Batson was released. Griffith, supra.

The appellant lists other reasons in addition to his failure to raise the Batson issue why his trial counsel's performance was ineffective. Initially, he argues that his counsel's performance was deficient because, he says, counsel failed to argue that the death penalty was cruel and unusual punishment. The death penalty has on many occasions withstood constitutional attacks on this ground. Williams v. State, 627 So.2d 985 (Ala.Cr.App.1991); Harrell v. State, 470 So.2d 1303 (Ala.Cr.App.1984), aff'd, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985); Wright v. State, 494 So.2d 726 (Ala.Cr.App.1985), aff'd, 494 So.2d 745 (Ala.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1331, 94 L.Ed.2d 183 (1987). Therefore, counsel's failure to make this argument did not render his assistance ineffective. Hallford, supra.

The appellant next argues that his trial counsel rendered ineffective assistance because, he says, counsel failed to raise a Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), objection to the statements in the presentence report concerning the impact of the victim's death. As the state correctly argues, Booth was not released until approximately one week after the appellant's trial. Counsel's performance cannot be deemed ineffective for failing to

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forecast changes in the law. Duren, supra. Furthermore, Booth has recently been reversed by the United States Supreme Court's decision in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

The appellant also argues that his appellate counsel's performance was ineffective for reasons other than his failure to raise the Batson issue. He argues that appellate counsel failed to raise on appeal the numerous alleged deficiencies of trial counsel. Initially, we observe that this case has already withstood three appellate attacks. This court is required on direct appeal to search the record in a death case for all plain error. Rule 45A, A.R.App.P. On the...