Yelder v. State

• Decision Date: 25 May 1990
• Docket Number: 3 Div. 95
• Citation: 575 So.2d 131
• Parties: Timothy John YELDER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 131

575 So.2d 131

Timothy John YELDER v. STATE.

3 Div. 95.

Court of Criminal Appeals of Alabama.

May 25, 1990.

Rehearing Denied June 29, 1990.

Arthur Parker and R.B. Jones, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Timothy John Yelder, was convicted of rape in the first degree, a violation of § 13A-6-61, Code of Alabama 1975; burglary in the first degree, a violation of § 13A-7-5, Code of Alabama 1975; and robbery in the first degree, a violation of § 13A-8-41, Code of Alabama 1975. At the sentencing hearing, the trial court sentenced him to life imprisonment on the rape charge, 25 years' imprisonment on the burglary charge, and 50 years' imprisonment on the robbery charge.

The evidence presented by the State tended to show that between 10:30 and 11:30 p.m. on May 30, 1988, the victim was awakened by an intruder in her east Montgomery home. She was then forcibly raped and robbed. After expressing anger at the small amount of cash in the victim's handbag, the assailant fled.

The victim then called the police to report the crime. When the police arrived shortly thereafter, the victim was waiting for them outside in her front yard, because she was afraid to be in the house alone. One officer entered her home to make sure the assailant was gone, then returned outside to where the victim and the other officers were. The victim was interviewed and gave officers a description of her assailant. She was then taken to an area hospital for examination and treatment. Meanwhile, police evidence technicians were searching her home for evidence to aid in identifying the assailant. The search turned up a latent palm print. Several items of evidence were recovered, along with hair and fiber samples.

The palm print was later compared with, and found to be a perfect match with, the known palm print of Timothy John Yelder, the appellant. Hair, fiber, and semen samples could not be positively identified as having come from the appellant. Experts could state only that, based on the samples, the appellant could have been the assailant. Additionally, investigators discovered that a co-worker of appellant's picked him up at a convenience store near the victim's home between 7:30 and 8:00 a.m. on May 31, 1988. Yelder told his co-worker that he had had a flat tire on his van late on the night before and, instead of calling someone to come and get him, had just slept in his van. Appellant was subsequently arrested, charged, and convicted of first-degree rape, robbery, and burglary.

I

Appellant's first contention of error is that his trial counsel was ineffective and that he therefore did not receive a fair trial. Specifically, appellant argues that his trial counsel was ineffective in failing to object under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's use of its peremptory challenges and the racial composition of his jury. Our examination of the record reveals that the State used 17 of its 29 peremptory challenges to remove 17 of the 18 black prospective jurors. The record further reveals that appellant's jury consisted of 11 white jurors and one black juror.

The legal standard to be used in determining ineffective assistance of counsel claims is found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That case sets out two components to an ineffective assistance of counsel claim:

"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."

466 U.S. at 687, 104 S.Ct. at 2064. See also, Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).

As to the first prong of an ineffective assistance claim, the Supreme Court held that the correct standard for attorney performance is an objective one; that is, "reasonableness under prevailing professional norms." 466 U.S. at 688, 104 S.Ct. at 2065. The Court went on to hold that "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id.

After an appellant has identified the specific acts or omissions which he alleges were the result of a lack of reasonable professional judgment, the court must then determine whether those acts are "outside the wide range of professionally competent assistance." 466 U.S. at 690, 104 S.Ct. at 2066. In making this 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." Id.

Even when an attorney's performance is found to be outside the wide range of professional reasonableness, the appellant's conviction will not be set aside "if the error had no effect on the judgment." 466 U.S. at 691, 104 S.Ct. at 2066. "Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." 466 U.S. at 692, 104 S.Ct. at 2067. Only in cases involving denial of assistance of counsel and counsel's conflict of interest will prejudice be presumed. Id. Aside from these claims, "actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." 466 U.S. at 693, 104 S.Ct. at 2067. ¹

The Supreme Court then set out the standard to be used in determining prejudice:

"Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution. United States v. Agurs, 427 U.S. , at 104, 112-113, [96 S.Ct. 2392, 2397, 2401-2402, 49 L.Ed.2d 342], and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness, United States v. Valenzuela-Bernal, [458 U.S. 858 (1982) ] supra, at 872-874 [102 S.Ct. 3440, 3449-3450, 73 L.Ed.2d 1193]. 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, 104 S.Ct. at 2068. More specifically, the Supreme Court, per Justice O'Connor, stated as follows:

"When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt....

"In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury."

466 U.S. at 695, 104 S.Ct. at 2068.

Having set out the legal standard to be applied in this case, we now turn to Appellant Yelder's specific allegation of his trial counsel's ineffectiveness.

The appellant, a black male, contends that his trial counsel, also a black male, was ineffective in that he failed to raise a Batson objection concerning the State's use of its peremptory challenges. This issue was first raised in appellant's motion for a new trial. At the hearing on this motion, trial counsel testified that 18 of the 73 potential jurors qualified in this case were black. Trial counsel further testified that the State used 17 of its 29 peremptory challenges to remove 17 of the 18 black prospective jurors. The racial composition of the jury was 11 white jurors and one black juror. Trial counsel stated that he made no Batson objection to the State's use of its peremptory challenges to strike black prospective jurors despite the fact that Batson had been decided more than two years prior to appellant's trial. When trial counsel was asked if he had read the recent Alabama decisions on Batson prior to striking the jury in this case, he replied, "Since the Yelder trial I have read the Branch [Ex parte Branch, 526 So.2d 609 (Ala.1987) (general guidelines set out for application of Batson decision) ] decision."

Appellant's conviction is not due to be reversed, because appellant has failed to prove that there is a reasonable probability that the outcome of his trial would have been different. Here, the evidence against appellant was overwhelming. A palm print found inside the victim's home at the point of her assailant's entry was positively identified as coming from the appellant. Forensic experts testified that there was a possibility that semen found on the victim's pajama pants belonged to appellant and that fibers found at the point of entry were consistent with fibers in the shirt appellant was wearing at the time of his arrest. Appellant's co-worker testified that he picked appellant up at a nearby convenience store early on the morning following the incident. Finally, the victim positively identified the appellant at trial as the man who entered her home, robbed her, and raped her on May 30, 1988. We find, therefore, that based on the totality of the evidence before the court, appellant has failed to meet his burden of showing that the decision reached by the jury likely would have been different absent his trial counsel's failure to raise a Batson objection.

II

The appellant next contends that the trial court erred by...