Thompson v. State

• Citation: 615 So.2d 129
• Decision Date: 13 November 1992
• Docket Number: CR-91-747
• Parties: Steven Allen THOMPSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 129

615 So.2d 129

Steven Allen THOMPSON v. STATE.

CR-91-747.

Court of Criminal Appeals of Alabama.

Nov. 13, 1992.

Rehearing Denied Jan. 22, 1993.

Certiorari Denied March 19, 1993

Alabama Supreme Court 1920696.

M. Frank Tatom II and Patrick W. Richardson, Huntsville, and M. Duncan Grant, Colleen F. Coonelly and Maxwell L. Stearns, Philadelphia, PA, for appellant.

James H. Evans, Atty. Gen., and Kenneth Nunnally and Clayton Crenshaw, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

The appellant, Steven Allen Thompson, appeals the denial of his petition for post-conviction relief under Rule 20, A.R.Crim.P.Temp. (now Rule 32, A.R.Crim.P.). The appellant was convicted of murder made capital because it was committed during the course of a rape, robbery, and kidnapping, § 13A-5-40(a)(1), (2), and (3), Code of Alabama 1975. The crime was found to be especially heinous, atrocious, or cruel compared to other capital offenses, § 13A-5-49(8), Code of Alabama 1975. The jury recommended life imprisonment without parole. The trial court overruled the jury's recommendation and sentenced the appellant to death by electrocution.

This court in Thompson v. State, 542 So.2d 1286 (Ala.Cr.App.1988), affirmed the appellant's capital murder conviction. The Alabama Supreme Court affirmed the decision in Thompson v. State, 542 So.2d 1300 (Ala.1989), and the United States Supreme Court denied certiorari review in Thompson v. Alabama, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989). All issues cognizable on direct appeal have been scrutinized, including those cognizable under the "plain error" doctrine.

In June 1990, the appellant filed a petition for post-conviction relief under then Rule 20, A.R.Crim.P.Temp. (now Rule 32, A.R.Crim.P.). The court held a lengthy hearing on the appellant's allegations and in a thorough order denied the appellant's petition. The current appeal is from the circuit court's denial of the petition for post-conviction relief.

I

The appellant initially contends in his brief on appeal that because this is a capital case this court should apply the plain error doctrine, Rule 45A, A.R.App.P., to his petition for post-conviction relief and hold that no procedural default grounds contained in Rule 20 should bar review of his petition. The State in its brief urges this court to decline to apply the plain error analysis to a collateral proceeding. The State relies heavily on the United States Supreme Court case of United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). In Frady, the court was faced with an appeal from a collateral attack in a death penalty case, brought under 28 U.S.C. § 2255, in which the state appellate court had applied the plain error doctrine to the collateral proceeding. A petition filed under 28 U.S.C. § 2255 is similar to a post-conviction petition for relief under Rule 32, A.R.Crim.P. Frady, 456 U.S. at 165, 102 S.Ct. at 1593. The Federal Rules of Criminal Procedure also contain a provision similar to this state's plain error doctrine. See Rule 52(b), F.R.Crim.P.; Rule 45A, A.R.App.P.

As the United States Supreme Court stated when analyzing the plain error doctrine in regard to the collateral proceeding in Frady:

"Because it was intended for use on direct appeal, however, the 'plain error' standard is out of place when a prisoner launches a collateral attack against a criminal conviction after society's legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal....

"....

"By adopting the same standard of review for § 2255 motions as would be applied on direct appeal, the Court of Appeals accorded no significance whatever to the existence of a final judgment perfected by appeal. Once the defendant's chance to appeal has been waived or exhausted, however, we are entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum."

456 U.S. at 164, 100 S.Ct. at 1592-93.

We apply the same analysis to this appeal. The appellant had full and thorough appeals in the state appellate courts, and the United States Supreme Court denied certiorari review. "Our trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series of endless post-conviction collateral attacks. To the contrary, a final judgment commands respect." Frady, 456 U.S. at 164-65, 102 S.Ct. at 1593. A collateral proceeding, in this case a petition for post-conviction relief, does not serve as a direct appeal. United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).

The procedural default grounds contained in Rule 32, A.R.Crim.P., apply with equal force to all cases, including those in which the petitioner has been sentenced to death. Nothing in Rule 32 suggests otherwise. Rule 32 makes no provision for different treatment of death penalty cases. Indeed, this court has specifically applied the procedural bars of Rule 20 (now Rule 32) to appeals from collateral attacks on convictions in death penalty cases. Duren v. State, 590 So.2d 360 (Ala.Cr.App.1990), 590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992); Gibson v. State, 580 So.2d 38 (Ala.Cr.App.1990).

Because the procedural bars contained in Rule 20 (now Rule 32) apply to this case, we will initially discuss those issues raised by the appellant that are not procedurally barred from our review.

II

The appellant argues that the circuit court considering the Rule 20 petition erred in adopting, as its own, the state's proposed opinion and order. In truth, the record does not show that the trial court adopted verbatim the proposed order submitted by the State.

" '[E]ven when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.' Anderson v. Bessemer City, North Carolina, 470 U.S., 564, 572, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 527 (1985). See also United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964) (verbatim findings are not to be summarily rejected and will stand if supported by the evidence); Weeks v. State, 568 So.2d 864 (Ala.Cr.App.1989), cert. denied, Weeks v. Alabama, U.S. , 111 S.Ct. 230, 112 L.Ed.2d 184 (1990) (issue discussed in dicta); Morrison v. State, 551 So.2d 435 (Ala.Cr.App.1989), cert. denied, U.S. , 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990) (trial court's findings of fact and conclusions of law were not clearly erroneous and adoption of findings and conclusions was proper)."

Hubbard v. State, 584 So.2d 895, 900 (Ala.Cr.App.1991), cert. denied, 502 U.S. 1041, 112 S.Ct. 896, 116 L.Ed.2d 798 (1992). See Williams v. State, [Ms. 89-633, September 20, 1991], 1991 WL 197836 (Ala.Cr.App.1991).

Here, it is evident that the trial court thoroughly considered the petition before denying it and the findings of fact and conclusions of law were not "clearly erroneous." The order denying the petition was not issued until approximately four months after the hearing. "We do not consider this a case where the judge merely 'uncritically accepted' and acquiesced in the findings of the prevailing party." Weeks v. State, 568 So.2d 864, 865 (Ala.Cr.App.1989).

III

The appellant also contends that his trial counsel rendered ineffective assistance. This issue is legitimately presented in this collateral proceeding. Ex parte Jackson, 598 So.2d 895 (Ala.1992).

The appellant makes numerous allegations concerning the assistance of his trial counsel. A brief rendition of the facts is necessary in order to address some of the appellant's claims regarding ineffective assistance of counsel. On May 13, 1984, the nude corpse of Ms. Robin Balarz was found on Green Mountain in Huntsville. She was bound with rope and tape, a sock was in her mouth, and her head had been shaved with a razor, which, the evidence indicated, the appellant bought specifically for that purpose. She had suffered numerous stab wounds, including a large knife wound near her vagina. The appellant confessed to the crime and told police where the body was located. He said that he bound the victim's breasts with rope, tied her to his car, and dragged her through mud and over rocks for a distance of at least 3,000 feet. When the appellant was taken into custody he was covered with blood and mud. See, Thompson, 542 So.2d at 1289.

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), set the standard by which to evaluate counsel's performance. To show that counsel's performance was ineffective, the defendant must show that his counsel's performance was deficient and that he was prejudiced by that deficient performance.

"When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death."

Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

"The appellant must show that his counsel's performance was unreasonable, considering all of the attendant circumstances.... '[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.' Strickland, 466 U.S. at 690, 104 S.Ct. at 2066."

Duren, 590 So.2d at 362.

The appellant initially argues that his counsel rendered ineffective assistance by not calling expert witnesses who might testify that the victim had died before the appellant sexually assaulted her. The appellant claimed that he...