Thompson v. State

• Decision Date: 18 January 1991
• Citation: 581 So.2d 1216
• Parties: Michael Eugene THOMPSON v. STATE. CR 89-383.
• Court: Alabama Court of Criminal Appeals

Page 1216

581 So.2d 1216

Michael Eugene THOMPSON v. STATE.

CR 89-383.

Court of Criminal Appeals of Alabama.

Jan. 18, 1991.

Rehearing Denied March 1, 1991.

Certiorari Denied June 21, 1991

Alabama Supreme Court 1900927.

Stephen T. Waimey of LeBoeuf, Lamb, Leiby & McCrae, Los Angeles, Cal., for appellant.

Don Siegelman, Atty. Gen., and Sandra J. Stewart, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Michael Eugene Thompson appeals from the denial of his petition seeking post-conviction relief under Rule 20, Alabama Temporary Rules of Criminal Procedure. The petition was denied by the trial court after a full evidentiary hearing, during which the appellant was represented by counsel.

The appellant was convicted of the capital murder of Maisie Gray. Maisie Gray was working in the Majik Mart store in Attalla, Alabama, on December 10, 1984. The appellant robbed and abducted Gray at gunpoint. He then forced her into a well and shot into the well several times. The cause of death was determined to be gunshot wounds.

This court affirmed the conviction in Thompson v. State, 503 So.2d 871 (Ala.Crim.App.1986). This court's opinion was affirmed in Ex parte Thompson, 503 So.2d 887 (Ala.1987), cert. denied, Thompson v. Alabama, 484 U.S. 872, 108 S.Ct. 204, 98 L.Ed.2d 155 (1987). Thompson then filed this petition seeking post-conviction relief in the Blount County Circuit Court. He raised eighteen issues in the petition, some of which contain multiple subparts. After an evidentiary hearing, the trial court made express written findings of fact and conclusions of law. These findings and conclusions are herein adopted as Appendix A to this opinion and approved in this opinion.

The appellant asserted several issues in the post-conviction proceeding which were fully covered or dealt with, in whole or in part, in this court's original opinion reported in Thompson v. State, 503 So.2d 871 (Ala.Crim.App.1986). ¹

We completely adhere to the views heretofore expressed in the opinion of this court on the original appeal. Several of the appellant's claims, either in whole or in part, are procedurally barred from review because (1) they could have been raised at trial or on direct appeal but were not ² or (2) they were raised at trial but not on appeal. ³ Other of the appellant's claims are procedurally barred from review because they were not raised in his Rule 20 petition. ⁴ See e.g., Jackson v. State, 501 So.2d 542 (Ala.Crim.App.1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 746 (1987); Boatwright v. State, 494 So.2d 929 (Ala.Crim.App.1986). The appellant apparently argues that this court should apply the "plain error" rule in order to review those claims that are procedurally barred because the claims are barred because his counsel was constitutionally ineffective. We need not address this argument, because counsel was not ineffective.

In addition to the claims that are procedurally barred and the claim of ineffective assistance of counsel at both the trial and appeal stages, the appellant also claims that the State failed to provide him with exculpatory evidence.

I

We have carefully considered the appellant's assertions with reference to his representation by counsel. We conclude that he failed to show either inadequate or ineffective representation by counsel at trial or on original appeal. The appellant failed to satisfy either prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Baldwin v. State, 539 So.2d 1103 (Ala.Crim.App.1988).

A review of the record leads us to conclude that the circuit court's findings of fact and conclusions of law are correct and are fully supported by the record. We also note that the appellant was fully and fairly represented not only at his original trial and on original appeal but also at the Rule 20 petition hearing and in his appeal of that proceeding, which is presently before this court.

II

The appellant also contends that the State failed to provide him with exculpatory evidence or evidence that could be used to impeach the State's key witness.

A

The appellant contends that the State failed to inform him that Shirley Franklin was granted immunity from prosecution in exchange for her testimony against him and that it failed to provide him with a statement made to the police by Shirley Franklin. This argument has no merit. There was absolutely no evidence presented at the hearing that Shirley Franklin was granted immunity from prosecution. In fact, the only evidence as to this claim was to the contrary. Furthermore, the appellant's trial attorney testified that, although he was not given a copy of Shirley Franklin's statement, he was allowed to listen to and copy a taped statement given by Shirley Franklin. There was absolutely no testimony presented that Shirley Franklin received a promise of payment or reward for her testimony.

B

The appellant also contends that the State withheld exculpatory evidence based on statements by Jack Lee Roberts, who said he saw a man in the Majik Mart shortly before Maisie Gray disappeared. The appellant contends that the trial court erred by applying the improper legal standard to determine the materiality of the alleged exculpatory evidence. He contends that the trial court erred in finding that the evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of this proceeding would have been different." (C.R. 243). The appellant bases this argument on a statement made by the Alabama Supreme Court in Ex parte Womack, 541 So.2d 47 (Ala.1988). In that case, the court noted that Part III of United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), was not the opinion of the United States Supreme Court, but of only one Justice. He further contends that the correct test of materiality is whether the evidence "might have affected the outcome of the trial." Womack at 64 (quoting, United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)).

A review of Bagley reveals, however, that the majority of the court held that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." 473 U.S. at 682, 685, 105 S.Ct. at 3383, 3385. One concurring Justice, with whom two other Justices concurred, stated:

"As the Justice correctly observes, this standard is 'sufficiently flexible' to cover all instances of prosecutorial failure to disclose evidence favorable to the accused. Ibid. Given the flexibility of the standard and the inherently fact-bound nature of the cases to which it will be applied, however, I see no reason to attempt to elaborate on the relevance to the inquiry of the specificity of the defense's request for disclosure, either generally or with respect to this case. I would simply hold that the proper standard is one of reasonable probability...."

Id. at 685, 105 S.Ct. at 3385. Thus, a majority of the Court upheld the "reasonable probability" standard. The concurring Justices simply stated that the Court need not address the specificity of the defense's request. This interpretation is further supported by Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987), which states:

"Although courts have used different terminologies to define 'materiality,' a majority of this court has agreed, '[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.' United States v. Bagley, supra, 473 U.S., at 682, 105 S.Ct., at 3384 (opinion of Blackmun, J.), see id. at 685, 105 S.Ct., at 3385 (opinion of White, J.)" (Emphasis added.)

We affirm the trial court's determination that the alleged exculpatory evidence was not material and find that the trial court applied the correct legal standard in reaching its conclusion. See, e.g., Bradley v. State, 557 So.2d 1339, 1342-43 (Ala.Crim.App.1989) for another Alabama case applying the same standard to Brady claims. Furthermore, we note that the allegedly exculpatory evidence is also not material under the "might have affected the outcome" test proposed by the appellant. The appellant also failed to show the favorable character of the suppressed evidence for the defense as to his Brady claims. See Bradley.

We have carefully reviewed the allegations and legal arguments in support of this appeal and find no error. For the reasons stated herein, the judgment of the Blount County Circuit Court denying the appellant's Rule 20 petition is due to be, and it hereby is, affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

IN THE CIRCUIT COURT OF BLOUNT COUNTY, ALABAMA

MICHAEL EUGENE THOMPSON, Petitioner,

v.

STATE OF ALABAMA, Respondent.

Case No. CC-85-060.02

Filed Feb. 15, 1990.

OPINION AND ORDER

Based on the evidence presented at trial and the evidentiary hearing on the above-styled petition for relief from conviction or sentence, the Court enters the following findings of fact and conclusions of law:

PROCEDURALLY BARRED CLAIMS

A. Claims Which Were Raised On Appeal

Four of the claims contained in the amended petition, in whole or in part, were raised and addressed on appeal from Thompson's conviction and death sentence:

Claim I--"Petitioner's conviction was obtained by the unconstitutional failure of the prosecution to disclose to the petitioner evidence favorable to the petitioner [insofar as it alleges that the State failed to disclose Shirley Franklin's criminal record]."

Claim II--"Petitioner was denied a fair trial as a result of the introduction into evidence of alleged confessions that, if given at all, were given by petitioner involuntarily, and without the presence of coun...