Thompson v. State, CR-91-747

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

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.

Page 130

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

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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

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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...