Waldrop v. State

• Decision Date: 28 April 1987
• Docket Number: 7 Div. 727
• Citation: 523 So.2d 475
• Parties: Billy Wayne WALDROP v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 475

523 So.2d 475

Billy Wayne WALDROP v. STATE.

7 Div. 727.

Court of Criminal Appeals of Alabama.

April 28, 1987.

Rehearing Denied March 8, 1988.

Certiorari Denied April 22, 1988

Alabama Supreme Court 87-740.

Daniel R. Farnell, Jr., Birmingham, for appellant.

Don Siegelman, Atty. Gen., and William W. Whatley, Jr., and John Gibbs, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

Petitioner Billy Wayne Waldrop was found guilty on February 18, 1983, of the murder of Thurman Macon Donahoo under § 13A-5-40(a)(2) and § 13A-5-40(a)(4), Code of Alabama 1975. The trial court, in accordance with the jury's recommendation, sentenced petitioner to the death penalty. On direct appeal, this Court affirmed petitioner's conviction in Waldrop v. State, 459 So.2d 953 (Ala.Cr.App.1983). The Alabama Supreme Court affirmed this Court in Ex parte Waldrop, 459 So.2d 959 (Ala.1984). The United States Supreme Court denied certiorari in Waldrop v. Alabama, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985).

Thereafter, Waldrop filed the instant petition for writ of error coram nobis, which was denied by the trial court. From this denial petitioner now appeals.

I

Petitioner contends that his trial counsel and appellate counsel were ineffective. Petitioner reasserts each of the grounds raised in his original petition at "Claim I." He alleges principally that counsel failed to conduct a reasonable investigation in order to present mitigating evidence and that counsel failed to file certain pretrial motions, thereby resulting in ineffective assistance of counsel.

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 50 L.Ed.2d 674 (1984), set forth in a two-part test for reviewing ineffective assistance of counsel claims:

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This test has been repeatedly followed by this court. See Williams v. State, 489 So.2d 4 (Ala.Cr.App.1986); Bell v. State, 489 So.2d 667 (Ala.Cr.App.1986); Jackson v. State, 485 So.2d 797 (Ala.Cr.App.1986).

We must first determine, therefore, whether the petitioner has proven that the performance of counsel was deficient. Each of the allegations of ineffectiveness raised by appellant were addressed in a very thorough memorandum opinion issued by the trial court, Judge William C. Sullivan presiding. ¹ We adopt the trial court's findings with regard to "Claim I" and find that the petitioner has failed to prove that the performance of counsel was deficient.

II

Petitioner contends next that the admission into evidence of his confession was error and that his counsel was ineffective for allowing such admission to occur.

As noted by the trial court the issue of the admission of petitioner's confession was raised on original appeal in Waldrop v. State, supra. Although coram nobis does not lie to relitigate issues decided on direct appeal, Ex parte Rudolph, 276 Ala. 392, 162 So.2d 486, cert. denied, Rudolph v. Alabama, 377 U.S. 919, 84 S.Ct. 1185, 12 L.Ed.2d 188 (1964); Richardson v. State, 419 So.2d 289 (Ala.Cr.App.1982), cert. denied, 460 U.S. 1017, 103 S.Ct. 1262, 75 L.Ed.2d 488 (1983); Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979), we believe it is appropriate for this court to address petitioner's argument that the confession would not have been admitted but for the ineffectiveness of petitioner's counsel.

Petitioner contends that counsel was ineffective for failing to make a pretrial motion to suppress the confession. We note that although no pretrial motion was made, a suppression hearing was held before petitioner's confession was admitted. The Supreme Court has held that a defendant is entitled "at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness." Jackson v. Denno, 378 U.S 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We are convinced that the suppression hearing held at trial, prior to the admission of the confession in this case, afforded petitioner every advantage that a pretrial hearing could have afforded. We note, also, that the trial court stated that it was standard practice in that circuit to conduct suppression hearings during trial. We, therefore, find that deficient performance did not result from the failure of counsel to request a pretrial suppression hearing.

Petitioner contends that his confession was due to be suppressed if his counsel had argued for suppression on "Fourth, Fifth, Sixth and Fourteenth Amendment grounds."

In support of his Fourth and Fourteenth Amendment claims petitioner contends apparently that he should have been afforded a post-arrest hearing to determine if there was probable cause to detain him and that his pretrial detention was, therefore, excessive. In Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), it was held that "since the probable cause standard for pretrial detention is the same as that for arrest, a person arrested pursuant to a warrant issued by a magistrate on a showing of probable cause is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial." Petitioner was arrested pursuant to a warrant issued after a showing of probable cause. For this reason petitioner's argument based on this ground must fail.

Petitioner contends that pre-indictment questioning by the police gave rise to a Sixth Amendment violation. Petitioner confessed on October 18, 1982, and was indicted on December 17, 1982. The Sixth Amendment right to counsel attaches only at the time adversary proceedings are initiated. Caver v. Alabama, 577 F.2d 1188 (5th Cir.1978); Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). In this state a felony prosecution begins with an indictment. State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779, cert. denied, 292 Ala. 506, 296 So.2d 784 (1974). Petitioner's Sixth Amendment right to counsel had not attached at the time he confessed.

We find no basis for petitioner's contention that his confession should have been suppressed on Fifth Amendment grounds. The trial court found at trial and at the coram nobis hearing that petitioner elected not to assert his right to counsel. We, therefore, find no merit to any of the arguments petitioner contends should have caused the suppression of his confession. Accordingly, we find that petitioner's counsel was not deficient for failure to assert these arguments for suppression.

III

Petitioner contends that his counsel was ineffective for failing to challenge the death qualification of the jury at trial.

The trial court found that two jurors were excluded for cause because neither could impose capital punishment in any case, no matter what the evidence. A prospective juror may be excluded for cause if his views on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The prospective jurors were, therefore, properly excluded. Furthermore, in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), it was held that this process is not violative of a defendant's right to an impartial jury or his right to a jury chosen from a fair cross-section of the community.

Accordingly, we find that petitioner's counsel was not ineffective for failing to raise this issue at trial, as the issue is without merit.

IV

Finally, petitioner contends that his counsel was ineffective for not contending that the application of the Alabama death penalty is discriminatory against defendants accused of killing whites.

In Waldrop v. State, 459 So.2d 953 (Ala.Cr.App.1983), the findings of the trial court were set forth as an appendix. The trial court stated:

"The Court further finds that the sentence of death was not recommended by the jury under influence of passion, prejudice, or any arbitrary factor. The Court finds that both the defendant and the victim were male caucasians. The Court further taking judicial knowledge of the proceedings conducted before it finds that the composition of the jury trying the defendant in this case was as follows: five white males, three white females, two black males, two black females."

Waldrop, supra, at 957-58.

Because the trial court found that the recommendation of the death sentence by the jury was not imposed "under influence of passion, prejudice or any arbitrary factor" and because petitioner now presents nothing to indicate that this finding was not correct, we now find that petitioner's contention that the imposition of the death penalty on him was discriminatory is without merit. We further find that the petitioner's counsel was not ineffective for failing to raise this issue.

The decision of the trial court denying the petition for writ of error coram nobis is, therefore, due to be affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX

IN THE CIRCUIT COURT OF TALLADEGA COUNTY, ALABAMA

No. CC-85-160

MEMORANDUM OPINION AND FINAL JUDGMENT

The Court having heard and...