Wilson v. State, CR-91-0359

• Decision Date: 25 March 1994
• Docket Number: CR-91-0359
• Citation: 644 So.2d 1326
• Parties: Fred Glenn WILSON, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1326

644 So.2d 1326

Fred Glenn WILSON, Jr. v. STATE.

CR-91-0359.

Court of Criminal Appeals of Alabama.

March 25, 1994.

Rehearing Denied May 6, 1994.

Certiorari Denied July 29, 1994

Alabama Supreme Court 1931177.

Joe W. Morgan, Jr., Birmingham, for appellant.

James H. Evans, Atty. Gen., and Jean Therkelsen, Asst. Atty. Gen., for appellee.

ON RETURN TO REMAND

MONTIEL, Judge.

The appellant, Fred Glenn Wilson, Jr., appealed the Jefferson Circuit Court's summary denial of his Rule 32, Ala.R.Crim.P., petition, attacking his conviction for murder and his sentence to life imprisonment. We remanded the cause to the circuit court for that court to hold an evidentiary hearing on the appellant's contention that his counsel, both at trial and on appeal, rendered ineffective assistance of counsel, 598 So.2d 1055. On return, the circuit court noted that the appellant has withdrawn his contention as to appellate counsel. The only issue on return is whether the appellant's trial counsel was ineffective. The appellant cites three instances of alleged ineffective assistance: trial counsel's request for a continuance for more time to prepare; failure to preserve the trial court's refusal to give a requested instruction on a lesser included offense; and failure to adequately prepare witnesses.

The appellant primarily bases his claim of ineffective assistance of counsel on his trial counsel's request for a continuance on the day of trial. On the day of the appellant's trial, trial counsel requested a continuance, telling the trial court that he did not have time to adequately prepare for the appellant's case because he had been attending to another matter out of town. Trial counsel explained to the trial court that it was his opinion that to try the appellant at that time would deny the appellant effective counsel. The trial judge stated for the record that the case had been continued on two other occasions at the request of the defense. He further stated that the case was one of the oldest cases on his docket and that he believed that there had been sufficient time to prepare for trial. The trial judge denied the continuance and the trial proceeded.

At the evidentiary hearing on the appellant's Rule 32, Ala.R.Crim.P., petition, trial counsel testified that he had been an attorney for 24 years when he represented the appellant. He stated that he had represented defendants in criminal cases before representing the appellant. He testified that he knew the appellant and that he had represented the appellant in civil matters.

He further stated that he had met with the appellant on at least three or four occasions before the trial and had discussed the case with him. He testified that he had received and evaluated discovery provided by the State, which included police reports, statements made by the appellant, and a videotape of the scene. He stated that there were several witnesses who testified for the appellant during the trial, although the witnesses were not necessarily subpoenaed. He also stated that before the trial he had spoken with the witnesses. He testified that he asked for the continuance in the appellant's case because he had been out of town and he had gotten behind in some work, but he stated that he was as prepared for the appellant's case as he would ever have been.

Trial counsel testified at the hearing on the appellant's Rule 32 petition that he requested a jury instruction regarding the lesser included offense of manslaughter, and that he thought he excepted to the trial court's refusal to give the charge. Additionally, he stated the charge was not marked by the trial court as given or refused. He said, therefore, that he believed that the issue as to whether the refusal to give the charge was preserved for appellate review was something that was due to be addressed by appellate counsel and this Court.

The appellant testified that he was assured by his trial counsel that he would get a continuance. Witnesses testified that the appellant's trial counsel spoke with them for a few minutes before they testified at the appellant's trial.

An attorney who practiced criminal law testified as an expert witness and expressed the opinion that the trial counsel was ineffective. He based his opinion upon a reading of the trial transcript. He testified that he had not spoken with the appellant or with trial counsel. The witness stated that he had analyzed the testimony of the witnesses presented by the defense and stated that it appeared that those witnesses were unprepared to testify. He also stated that trial counsel was ineffective because he failed to object to the trial court's refusal to instruct the jury regarding manslaughter as a lesser included offense of murder. The witness testified that the State presented strong testimony from the victim's mother, who was an eyewitness to the murder, and that this testimony was extremely damaging to the defense. Moreover, the witness was unable to testify that had trial counsel performed differently at trial the outcome of the appellant's trial would have been different.

The appellant has not sustained his burden of proof in establishing that trial counsel was ineffective. In order to establish ineffective assistance of counsel, the appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that a reasonable probability exists that, but for counsel's mistakes, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). Additionally, in a Rule 32, Ala.R.Crim.P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.

In this case, the appellant's argument that his trial counsel was not...