Williams v. State

• Decision Date: 04 February 2000
• Parties: Herbert WILLIAMS, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

782 So.2d 811

Herbert WILLIAMS, Jr. v. STATE.

CR-98-1074.

Court of Criminal Appeals of Alabama.

February 4, 2000.

Rehearing Denied March 17, 2000.

Certiorari Denied November 9, 2000.

Ellen L. Wiesner, Brookfield, Wisconsin, for appellant.

Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for appellee.

Alabama Supreme Court 1991200.

BASCHAB, Judge.

On February 16, 1990, the appellant, Herbert Williams, Jr., was convicted of capital murder for killing Timothy Hasser during the course of a robbery. See § 13A-5-40(a)(2), Ala.Code 1975. By a vote of 9-3, the jury recommended that he be sentenced to imprisonment for life without the possibility of parole. However, the trial court overrode the jury's recommendation and sentenced the appellant to death by electrocution. This court and the Alabama Supreme Court affirmed his conviction and sentence, see Williams v. State, 627 So.2d 985 (Ala.Cr.App.1991),

aff'd, 627 So.2d 999 (Ala.1993), and the United States Supreme Court denied the appellant's petition for certiorari review, see Williams v. Alabama, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994). The relevant facts of the case are set forth in those opinions. This court issued a certificate of judgment on September 14, 1993.

On October 17, 1994, the appellant, through counsel, filed a Rule 32, Ala. R.Crim. P., petition for post-conviction relief, which he amended twice. The State responded, arguing that the issues the appellant raised either lacked merit or were precluded. After conducting an evidentiary hearing, the circuit court denied the petition. This appeal follows.

The appellant raises numerous issues on appeal, including substantive claims alleging errors at trial and claims that his attorneys rendered ineffective assistance at trial and on appeal. In reviewing the circuit court's denial of the appellant's petition, we apply the following principles.

"`"[T]he plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence." Thompson v. State, 615 So.2d 129 (Ala.Cr.App. 1992).' Cade v. State, 629 So.2d 38, 41 (Ala.Cr.App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994).

"In addition, `[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.' State v. Tarver, 629 So.2d 14, 19 (Ala.Cr.App. 1993)."

Brownlee v. State, 666 So.2d 91, 93 (Ala. Cr.App.1995).

"To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

"`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 v. State, 590 So.2d 360, 362 (Ala. Cr.App.1990), aff'd, 590 So.2d 369 (Ala. 1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992).

"When this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App.1985). The burden is on the appellant to show that his counsel's conduct was deficient. Luke.

"`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. 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." 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.'

"Strickland, 466 U.S. at 689,

104 S.Ct. at 2065-66. (Citations omitted.) Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).

"Initially we must determine whether counsel's performance was deficient. We must evaluate whether the action or inaction of counsel of which the petitioner complains was a strategic choice. `Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengeable....' Lawley, 512 So.2d at 1372. This court must avoid using `hindsight' to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance. Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991)."

Hallford v. State, 629 So.2d 6, 8-9 (Ala.Cr. App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994).

"In determining whether a defendant has established his burden of showing that his counsel was ineffective, we are not required to address both considerations of the Strickland v. Washington test if the defendant makes an insufficient showing on one of the prongs. Id. at 697, 104 S.Ct. at 2069. In fact, the Court explained that `[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' Id. We defer to this guidance and address the `prejudice' prong, for `[w]ith respect to the prejudice component, the lack of merit of [Thomas's] claim is even more stark.' Id. at 699, 104 S.Ct. at 2070."

Thomas v. State, 511 So.2d 248, 255 (Ala. Cr.App.1987) (footnote omitted).

"Furthermore, to render effective assistance, an attorney is not required to raise every conceivable constitutional claim available at trial and on appeal. Holladay v. State, 629 So.2d 673 (Ala.Cr. App.1992), cert. denied, 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994); McCoy v. Lynaugh, 874 F.2d 954, 965-66 (5th Cir.1989). Rather, counsel must be given some discretion in determining which claims possibly have merit, and thus a better chance of success, and which claims do not have merit, and thus have little chance of success. Heath v. State, 536 So.2d 142 (Ala.Cr.App.1988); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)."

Davis v. State, 720 So.2d 1006, 1014 (Ala. Cr.App.1998), cert. denied, 525 U.S. 1149, 119 S.Ct. 1049, 143 L.Ed.2d 55 (1999).

In its order denying the appellant's petition, the circuit court stated the following with regard to the appellant's ineffective-assistance-of-counsel claims:

"Having read and heard the many assertions of ineffective assistance of counsel, the court is convinced they are at best second-guessing, and allegations of ineffective counsel without proof fall woefully short of ineffective assistance of counsel. Most, if not all, of the assertions of ineffective assistance can be traced to trial tactic the petitioner, using hindsight, now says is error.

". . . .

"There are many routes from Mobile to Montgomery and they will all get you there. People will differ or argue over which route is the best. Likewise, there are many different ways to handle the trial of any case in court. Therefore, to simply second-guess what another attorney has or has not done falls woefully short of being ineffective assistance of counsel....

". . . .

"... In this case, the evidence at trial was overwhelming against the defendant-petitioner herein. Therefore, applying the Strickland standard to all of Williams' claims of ineffective assistance of counsel shows that he received effective assistance of counsel.

". . . .

"Petitioner has failed to prove that his trial or appellate counsel were ineffective. The trial transcript, which the court is very familiar with, and the evidence presented at the Rule 32 hearing, establishes that the Petitioner was represented by very capable attorneys from arraignment to date. That is, the petitioner received very effective representation he was guaranteed by the Constitution. The petitioner was convicted and sentenced to death because of the weight of the evidence against him."

(C.R.648-53, 690.)

I.

The appellant's first argument is that the State withheld exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he contends that the State suppressed evidence that a potential witness had seen the appellant and the victim together in Mobile before the murder and evidence that a white Porsche automobile had been seen at the scene of the crime at about 3:30 p.m. on the day of the murder. The appellant did not assert that this claim was based on newly discovered evidence. Therefore, it is procedurally barred because he could have raised it at trial and on direct appeal, but did not. See Rule 32.2(a)(3) and (a)(5), Ala. R.Crim. P.; Boyd v. State, 746 So.2d 364 (Ala.Cr. App.1999); Matthews v. State, 654 So.2d 66 (Ala.Cr.App.1994); Lundy v. State, 568 So.2d 399 (Ala.Cr.App.1990).

Furthermore, the appellant's claim is without merit. In rejecting this claim, the circuit court found as follows:

"Williams contends that the State failed to disclose

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