State v. Terry, CR-90-1694

• Decision Date: 13 March 1992
• Docket Number: CR-90-1694
• Citation: 601 So.2d 161
• Parties: STATE of Alabama v. Phillip Benford TERRY.
• Court: Alabama Court of Criminal Appeals

Page 161

601 So.2d 161

STATE of Alabama v. Phillip Benford TERRY.

CR-90-1694.

Court of Criminal Appeals of Alabama.

March 13, 1992.

Rehearing Denied May 1, 1992.

Certiorari Denied July 24, 1992

Alabama Supreme Court 1911297.

James H. Evans, Atty. Gen., and Bob Burrell, Dist. Atty. of Morgan County, for appellant.

Tom DiGiulian, Decatur, for appellee.

JAMES H. FAULKNER, Retired Justice.

Phillip Benford Terry filed a petition in the Circuit Court of Morgan County for relief from conviction or sentence, pursuant to Rule 32 of the Alabama Rules of Criminal Procedure, attacking his June 13, 1989, conviction for trafficking in cannabis. Counsel was appointed to represent Terry in this matter. After numerous pleadings were filed, the circuit judge, who was the same judge who had presided over Terry's trial, conducted a hearing on the Rule 32 petition. At the conclusion of the hearing, the circuit court found that Terry had been denied effective assistance of counsel at trial, granted Terry's petition on this ground, set aside Terry's conviction, and ordered a new trial. All other grounds of the petition were denied generally.

The sole issue raised on appeal is whether the circuit court erred in finding that Terry's trial counsel was ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In June 1989, Terry was convicted of trafficking in cannabis, and he was sentenced to 25 years in prison. Terry appealed his conviction, and his conviction was affirmed by this court. Terry v. State, 570 So.2d 781 (Ala.Cr.App.1990).

On June 3, 1991, Terry filed the present Rule 32 petition, alleging inter alia that he was denied the effective assistance of counsel at trial. In his petition, Terry alleged that his appointed trial counsel, Kevin Teague, was not prepared for trial and that he refused to ask for a continuance despite Terry's request. In particular, Terry listed in his petition the following, which he alleged Teague did or failed to do that rendered his assistance ineffective:

1. Did not know what statute or law the defendant was to be tried under;

2. Did not bring the faulty warrants to the court's attention;

3. Did not object to prosecuting attorney's remark to jurors that marijuana had been found in the defendant's automobile.

4. Did not object to hearsay evidence when a witness said that the defendant had told him that there was marijuana in the trunk of the car.

5. Did not challenge for cause a biased prospective juror, who ended up as one of the jury members.

6. "Improper challenge for cause prospective juror, ... who showed bias feelings and ended up being foreman of the jury."

7. Improper challenge for cause against juror # 25.

8. Did not object to testimony concerning weight of marijuana found in the car, so as not to preserve issue for appellate review.

9. Did not object or except to court's oral charge to the jury when court stated that it was indeed marijuana, thereby not preserving issue for appellate review.

10. Did not object to State's notice to proceed under Habitual Felony Offender Act.

11. "Filed motion of discovery disclosure prematurely, which resulted in court denying motion."

12. Failed to raise issue of probable cause.

13. Did not object to lack of notice on habitual offender hearing and did not object to the prior charge being used for enhancement purposes even though it clearly showed that defendant had not been represented by counsel when convicted.

14. "Filed preliminary hearing wrong which resulted in court denying motion."

15. Failed to preserve several claims for appellate review.

A hearing was held on August 15, 1991, presided over by the Honorable Rudolph W. Slate, the circuit judge who also presided at Terry's trial. At the close of the testimony of Terry and Teague, Judge Slate found that, based upon his recollection of the trial, the case, the court file, and the testimony at the Rule 32 hearing, Terry had received ineffective assistance of counsel and was therefore entitled to a new trial. The court further found that in all reasonable probability the outcome of the trial would have been different had Mr. Teague been effective in his assistance of Terry.

To prevail upon a claim of ineffective assistance of counsel, the defendant must establish both that counsel's performance was deficient and that that deficient performance prejudiced the defense to the extent that a different outcome of the trial probably would have resulted but for counsel's allegedly ineffective performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Rule 32.3, A.R.Cr.P., provides that Terry has the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle him to relief. Rule 32.9, A.R.Cr.P., provides that the circuit court conduct the evidentiary hearing. Rule 19.2(a), A.R.Cr.P., provides that the law of evidence relating to civil actions shall apply to criminal proceedings, except as otherwise provided.

In the instant case, the judge who heard the evidence at the Rule 20 hearing also presided at the trial. At trial, Judge Slate had the opportunity to observe the actual conduct of Terry's counsel. He, moreover, heard the conflicting testimony at the Rule 32 hearing and chose to believe Terry's testimony.

This court will not reverse a trial court's judgment based upon ore tenus testimony unless, after consideration of all of the evidence and all reasonable inferences to be drawn therefrom, it is found to be plainly and palpably wrong. Cummings v. Hill, 518 So.2d 1246 (Ala.1987). Nor may this court substitute its judgment on the effect of the evidence dealing with pivotal questions of fact for that of the trial court. Storey v. Patterson, 437...