Williams v. State

• Decision Date: 31 March 2000
• Citation: 783 So.2d 108
• Parties: Luther Jerome WILLIAMS v. STATE.
• Court: Alabama Court of Criminal Appeals

783 So.2d 108

Luther Jerome WILLIAMS v.STATE.

CR-98-1585.

Court of Criminal Appeals of Alabama.

March 31, 2000.

Rehearing Denied May 19, 2000.

Certiorari Denied October 27, 2000.

Christopher Little, Providence, Rhode Island; and Joel L. Sogol, Tuscaloosa, for appellant.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.

Alabama Supreme Court 1991689.

BASCHAB, Judge.

The appellant, Luther Jerome Williams, was convicted of capital murder for killing John Robert Kirk during the course of a robbery.See§ 13A-5-40(a)(2),Ala.Code 1975.By a vote of 10-2, the jury recommended that he be sentenced to death.The trial court accepted the jury's recommendation and sentenced the appellant to death.This court and the Alabama Supreme Court affirmed the appellant's conviction on direct appeal, seeWilliams v. State,601 So.2d 1062(Ala.Crim.App.1991), aff'd without opinion, 662 So.2d 929(Ala.1992)(table), and the United States Supreme Court denied the appellant's petition for certiorari review, seeWilliams v. Alabama,506 U.S. 957, 113 S.Ct. 417, 121 L.Ed.2d 340(1992).The relevant facts of the case are set forth in our opinion.This court issued a certificate of judgment on April 29, 1992.

On April 8, 1994, the appellant, through counsel, filed a Rule 32 petition, challenging his conviction and sentence of death.He filed an amended petition on July 7, 1994.After the State responded and after conducting an evidentiary hearing, the circuit court denied the petition in a thorough, 71-page order.This appeal follows.

The appellant raises numerous issues on appeal, including claims that his attorneys rendered ineffective assistance during the proceedings.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.Crim.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.Crim.App.1993)."

Brownlee v. State,666 So.2d 91, 93(Ala. Crim.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. Crim.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. Crim.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. Crim.App.1998), cert. denied, 525 U.S. 1149, 119 S.Ct. 1049, 143 L.Ed.2d 55(1999).

I.

The appellant argues that the circuit court violated his due process rights during the Rule 32 proceedings.

First, the appellant contends that the circuit court erroneously denied his motions for funds to hire a psychologist, a forensic pathologist, and a forensic expert.Citing Ake v. Oklahoma,470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53(1985), he argues that the State is required to provide indigent defendants with experts to assist in preparing postconviction litigation and that to deny these experts results in the denial of due process.However, this court has held that indigent defendants are not entitled to funds to hire experts to assist in postconviction litigation.SeeFord v. State,630 So.2d 111(Ala.Crim.App.1991), aff'd, 630 So.2d 113(Ala.1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380(1994);Holladay v. State,629 So.2d 673(Ala.Crim.App.1992), cert. denied, 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555(1994);Hubbard v. State,584 So.2d 895, 900-01(Ala.Crim.App.1991), cert. denied, 502 U.S. 1041, 112 S.Ct. 896, 116 L.Ed.2d 798(1992).In denying the appellant's request for funds to hire a psychologist, the circuit court cited Ford,supra, in which we held:

"Ford asserts that the trial court in the Rule 20[now Rule 32] hearing erred by denying him the assistance of a psychologist of his own choosing in that hearing.No court has ever held that a criminal defendant is entitled to a psychologist, paid for by the State, in a post-conviction proceeding....Ford seeks to expand the court's holding in Ake v. Oklahoma,470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53(1985).Ake required the State to provide a psychologist for a criminal defendant at his trial if his sanity at the time of the offense was likely to be a significant factor.Under Ake, the assistance of a psychologist is limited to trial proceedings only."

630 So.2d at 112.Also, in denying the appellant's requests for funds to hire a forensic pathologist and a forensic expert, the circuit court stated:

"`[T]he fundamental fairness mandated by the Due Process Clause does not require the trial court to approve such funds.'Hubbard v. State,584 So.2d 895, 900-01(Ala.Crim.App.1991).The submissions made in support of said motions do not persuade the court that there are special circumstances requiring the authorization of the requested funding in order to afford Petitioner with due process in this post-conviction proceeding."

(C.R.417.)

Other jurisdictions have also declined to extend Ake to postconviction or collateral proceedings.SeeBraun v. State,937 P.2d 505, 515(Okla.Crim.App.1997)("We have said post-conviction proceedings are not intended to be a second direct appeal; they certainly are not intended to be a second trial proceeding.We refuse to undermine that principle by extending Ake...