Weeks v. State, 5 Div. 484

• Citation: 568 So.2d 864
• Decision Date: 01 December 1989
• Docket Number: 5 Div. 484
• Parties: Varnall WEEKS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 864

568 So.2d 864

Varnall WEEKS v. STATE.

5 Div. 484.

Court of Criminal Appeals of Alabama.

Dec. 1, 1989.

Certiorari Denied Feb. 23, 1990

Alabama Supreme Court 89-437.

J. Michael Williams, Sr., Auburn, for appellant.

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

ON APPLICATIONS FOR REHEARING

BOWEN, Judge.

On application for rehearing, the State informed this court that the written opinion of the circuit court denying the petition for writ of error coram nobis was "inaccurately reproduced in the appellate record." Those inaccuracies do not affect the outcome of this appeal. However, a correct copy of that order has now been obtained as authorized by Rule 10(f), A.R.App.P. Therefore, because the circuit court's opinion was an appendix to the opinion of this court, our opinion issued on original submission is hereby withdrawn and the following is substituted therefor.

In 1982, Varnall Weeks was convicted for the capital offense of murder during the course of a robbery and was sentenced to death pursuant to Ala.Code 1975, § 13A-5-40(a)(2). His conviction was affirmed on appeal. Weeks v. State, 456 So.2d 395 (Ala.Cr.App.1983), affirmed, Ex parte Weeks, 456 So.2d 404 (Ala.1984), cert. denied, Weeks v. Alabama, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 324 (1985).

In May 1986, Weeks filed a petition for writ of error coram nobis. Weeks's motion for a competency investigation was granted in July 1986. After an evidentiary hearing, the circuit court denied the petition in August 1988. Based upon the circuit court's findings of fact and conclusions of law, attached as an appendix to this opinion, this Court affirms the judgment of the circuit court denying the petition for writ of error coram nobis. Our independent examination of the proceedings convinces this court that those findings and conclusions are correct and that they are supported by the record.

In this case, Weeks has not raised an objection to the circuit court's verbatim adoption of the State's proposed findings of fact and conclusions of law. However, we issue a caution that courts should be reluctant to adopt verbatim the findings of fact and conclusions of law prepared by the prevailing party. Despite the fact that such a practice is subject to criticism, the general rule is that "even 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. City of Bessemer, N.C., 470 U.S. 564, 572, 105 S.Ct. 1504, 1510-11, 84 L.Ed.2d 518 (1985). In this case, the proposed findings and conclusions present a fair and accurate statement of the facts and of the applicable law. The record of the evidentiary hearing of the coram nobis petition shows that the circuit judge was well informed as to the issues presented. The judge allowed Weeks's counsel considerable latitude and even instructed counsel to amend the petition by adding additional grounds.

It is evident that the judge's explicit or implicit rulings during the coram nobis hearing provided the framework for the proposed findings. We do not consider this a case where the judge merely "uncritically accepted" and acquiesced in the findings of the prevailing party. Anderson, 470 U.S. at 572, 105 S.Ct. at 1511.

The appellant's application for rehearing is overruled. The State's application for rehearing seeking the correction of the The judgment of the circuit court denying the petition for writ of error coram nobis is affirmed.

record and of the original opinion is granted as indicated in the first paragraph of this opinion.

STATE'S APPLICATION FOR REHEARING GRANTED; STATE'S RULE 39(K) MOTION DENIED; APPELLANT'S APPLICATION FOR REHEARING OVERRULED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

All Judges concur.

APPENDIX

In the Circuit Court of Macon County, Alabama

CC 82-42

Varnall Weeks, Petitioner,

v.

State of Alabama, Respondent.

RESPONDENT'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Court having heard and considered all of the evidence make the findings of fact and conclusions of law set out below and enters final judgment denying petitioner relief.

INEFFECTIVE ASSISTANCE OF COUNSEL

An evidentiary hearing was held on petitioner's ineffective assistance of counsel claims. At the hearing, petitioner was represented by counsel and presented evidence. The Court, after hearing the testimony and observing the demeanor of the witnesses, makes the findings of fact and conclusions of law set out below:

A. Legal Standard for Deciding Ineffective Assistance Claims

The legal test to be used in determining ineffective assistance of counsel claims is set out in Strickland v. Washington, 466 U.S. 668, [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). Ex Parte Daniel, 459 So.2d 948, 951 (Ala.1984); see, Ex Parte Baldwin, 456 So.2d 129, 134 (Ala.1984). In Strickland v. Washington, supra, the United States Supreme Court provided an authoritative statement of the law on ineffective assistance of counsel claims. The Court stated that the fundamental matter for decision on any claim of ineffective assistance must be "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." The Court then held that there are two components to an ineffective assistance of counsel claim:

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.

466 U.S. at 687 .

As to the first component of an ineffective assistance of counsel claim, the Court held that the standard for measuring attorney performance is an objective one, "reasonableness under prevailing professional norms." 466 U.S. at 688 . Because the purpose of the Sixth Amendment is to insure that a defendant receives a fair trial, the Court said "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." 466 U.S. at 688 . In announcing this standard, the Court rejected an approach which would entail intensive or intrusive after-the-fact inquiry concerning an attorney's performance, and it rejected establishing rigid requirements or detailed guidelines for attorney performance.

For these and other reasons, the Court held that:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 [102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Michel v. New York [Louisiana], supra, 350 U.S. at 101 [76 S.Ct. 158 at 164, 100 L.Ed. 83 (1955) ]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpastor, the Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).

466 U.S. at 689-690 (emphasis added).

After a petitioner has identified the specific acts or omissions which he alleges were not the result of reasonable professional judgment, the court must determine whether those acts are "outside the wide range of professionally competent assistance." 466 U.S. at 690 . In making that determination, "the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." 466 U.S. at 690 .

In addition, the Court said that an attorney's strategic choices, made after reasonable investigation, are virtually beyond challenge and that whether an attorney's strategic choices were reasonable may be determined, or substantially influenced, by what he was told by a defendant. 466 U.S. at 690 .

Even if a defendant can show that his attorney's performance was deficient, his conviction or sentence will not be set aside absent his affirmatively proving prejudice. A defendant must prove prejudice because any given error is as likely to have been harmless as it is to have been harmful. 466 U.S. at 691-693 . A defendant must do more than "show that the errors had some conceivable effect on the outcome of the proceeding." 466 U.S. at 693 . In order to prove that he was prejudiced by his attorney's deficient performance:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

466 U.S. at 694 . More specifically, the...