In Re Shonelle Andre Jackson v State of Alabama CR04-0096 Supreme Court AL - 2004.10.20 Petition for Writ of Mandamus 2 of 3 - 400pp

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(Ala. Crim. App. 1993) (capital conviction and death sentence reversed in state

postconviction where petitioner presented evidence about a trial witness found in Taylor

Hardin medical records during Rule 32 proceedings).

C. Records from State Agencies Involved in the Investigationand Prosecution of Mr. Jackson

The State also objects to Mr. Jackson's request for records from Montgomery Fire

Department, Montgomery Violent Crimes Task Force, Alabama Department of Forensic

Sciences, and the Alabama Department of Pardons and Paroles, arguing that Mr. Jackson has

"not explained" what documents these agencies possess, that he has not alleged what the

records specifically reveal, or how these records relate to the remaining claims before the

court. This Court should reject the State's arguments.

Mr. Jackson has explained that these agencies each possess documents related to Mr.

Jackson's trial. Each of these agencies was involved in, and thus possesses information

about, the State's investigation of Shonelle Jackson, Eric Williams, Antonio Barnes and

Christopher Rudolph in the murder of LeFraich Moore. In his petition, Mr. Jackson has

alleged that the State has suppressed several items, including information obtained from

Patrick Stinson, Roderick Crawford and Latrice Walker, as well as the results of testing and

examination of the evidence. Upon information and belief, the files of these agencies will

likely contain the suppressed information, or lead to other discoverable information.

At this point, Mr. Jackson cannot, and indeed is not required. to articulate precisely

what is in the records in order to get discovery. As the Land Court recognized, "[i]f

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defendants were required to make a positive showing that sealed documents in fact contained

exculpatory material, Brady violations would come to the attention of appellate courts only

by the merest happenstance of confidential material falling into a defendant's hands." Land,

755 So. 2d at 854 (citing United States v. Streit, 962 F.2d 894, 900 (9"' Cir. 1992)). Without

access to the information contained in these files, Mr. Jackson will be unable to prove his

allegations.

D. Physical Evidence Introduced into the Record at Trial

Mr. Jackson has also alleged that his trial counsel were ineffective for failing to

challenge the State's ballistics evidence and obtain a firearm and projectile expert to assist

counsel in order to establish that the bullets that caused Mr. Moore's death could have been

fired by either the 9 mm or the .357 gun carried by the co-defendants, and thus that Mr.

Jackson was not responsible for Mr. Moore's death. Amended Petition, at 11-12, 24. This

discovery request is opposed by the State solely based on its argument that the claim is not

cognizable: "Because Jackson's claim is due to be dismissed, he has not and cannot show

"good cause" for access to the bullet and shell casing." State's Response, at 10.

As articulated in Petitioner's Response to the State's Motions to Dismiss, the State's

argument that this claim should be dismissed due to lack of a material issue of law or fact

because counsel elicited such testimony on cross-examination should be rejected as an

argument about the merits of the claim. Id. at 10-11, Mr. Jackson has alleged facts, which,

if proven true, would entitle him to relief. That the State believes he may not ultimately

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succeed on the merits is not relevant to whether has sufficiently pled the claim and shown

"good cause" for discovery. Without access to the bullet and shell casing - in order that it

may be evaluated and independently tested - Mr. Jackson will be unable to prove that trial

counsel were ineffective in this regard.

E. Court Records

Finally, Mr. Jackson has requested records from the Montgomery County Juvenile,

Family, District, Circuit and Municipal courts. In response, the State contends that Mr.

Jackson is not entitled to these documents because he has "not explained" what documents

these agencies possess, that he has not alleged what the records specifically reveal, or how

these records relate to the remaining claims before the court. State's Response, at 15.

However, Mr. Jackson has explained both what documents these agencies possess and how

these documents are related to claims before the Court.

In his petition, Mr. Jackson alleged that his trial counsel failed to file a timely

Youthful Offender Application and present evidence in support of this motion to the Court.

Amended Petition, at 15-16. Additionally, counsel failed to challenge the underlying

convictions which formed the basis for the aggravating circumstance against Mr. Jackson

that "the capital offense was committed by a person under sentence of imprisonment." (C.

174.) In order to prove these claims, Mr. Jackson needs access to all of his court files,

specifically including his juvenile records (which are not public records). These records are

in the possession of the Montgomery County Juvenile Court system. Thus. Mr. Jackson

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needs a court order directing the Montgomery County courts to allow him access to his files.

It is not true, as the State contends, that Mr. Jackson must show (even if he could)

specifically what these records reveal in order to show "good cause" for the records. Land,

775 So. 2d at 854. Without access to records from the Montgomery County Juvenile, Family,

Municipal, District and Circuit courts, Mr. Jackson will be unable to prove that trial counsel

were ineffective in this regard.

Discovery requests of prosecution files are routinely granted in death penalty Rule 32

cases across the state. See. e.g.. Land, 775 So.2d at 850 (trial court ordered discovery of

district attorney files); Hooks v. State, 822 So. 2d 476, 82 (Ala. Crim. App. 2000) (upholding

circuit court order granting Rule 32 petitioner discovery of prosecution's files). In a case

involving the Montgomery County District Attorney's office - an office with a history of

suppressing evidence in death penalty cases - discovery of such records is even more critical.

In this case, Mr. Jackson has alleged "good cause" for discovery of the prosecution files, and

therefore his motion for discovery should be granted in its entirety.

III. INSTITUTIONAL RECORDS

In his Motion for Discovery of Institutional Files, Mr. Jackson requested numerous

records that are necessary to prove that his trial counsel were ineffective at both the

guilt/innocence and penalty phases of the trial. These requested documents include not only

Shonelle Jackson's records, but records on his father, Louis Taylor, and his mother, Marilyn

Jackson as well. The State agrees that Mr. Jackson has established "good cause" for a

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number of these records, but.objects to discovery of the following records: 1) records from

the Alabama Board of Pardons and Paroles pertaining to Shonelle Jackson; 2) any and all

records pertaining to Louis Taylor, including records from the Department of Corrections,

the Montgomery County Detention Facility, the Montgomery County Jail, Alabama Board

of Pardons and Paroles, the Montgomery Police Department and the Montgomery County

Sheriff's Department; and 3) mental health records pertaining to Marilyn Jackson. Because

Mr. Jackson has shown "good cause" for these records, the State's motion should be denied.

A. Records of the Alabama Board of Pardons and Paroles

The State claims that Mr. Jackson is not entitled to records of the Alabama Board of

Pardons and Paroles because 1) he has not "explained" what documents this agency

possesses, 2) he has not alleged "what the records specifically reveal," or 3) how these

records are relevant to the claims in the petition. State ofAlabaina's Response to Jackson's

Motion for Discovery or Institutional Records, Files, and Information Necessary to a Fair

Rule 32 Evidentiary Hearing, at 10. This Court should reject the State's arguments. First,

upon information and belief, the Alabama Board of Pardons and Paroles has files on Mr.

Jackson. That this is true is evidenced by the fact that the Alabama Board of Pardons and

Paroles prepared the pre-sentence report in this case. (S.R. 1.) Second, the State's argument

that Mr. Jackson has not alleged "what the records specifically reveal," was explicitly

rejected by the Alabama Supreme Court in Land: "Until the documents are actually

produced, it is impossible to determine whether they contain evidence of mitigating

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circumstances." Land, 755 So. 2d at 854. Moreover, Mr. Jackson has asserted in his petition

that counsel were ineffective for failing to investigate and present mitigating evidence of Mr.

Jackson's "life of instability,""diminished mental capacity," and evidence that "he has always

been a hard worker who has done well in structured environments such as correctional

facilities."' Amended Petition, at 42, 44. Records of the Alabama Board of Pardons and

Paroles would "corroborate[] the testimony ... of family members and friends," regarding

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the mitigation in this case. Amended Petition, at 37. These records are not only relevant, but

essential to Mr. Jackson's ability to prove that his counsel were ineffective in this regard.

The State agrees that this portion of Mr. Jackson's ineffectiveness claim is sufficiently

pled. State ofAlabama's Answer to Jackson 's Amended Petition for Relieffrom Conviction

and Death Sentence, at 53. Mr. Jackson has shown "good cause" for these records because

he has alleged facts which, if proven true, would entitle him to relief. See Land, 775 So. 2d

at 855 (holding that petitioner was entitled to discovery of records of Board of Pardons and

Paroles to prove that counsel was ineffective at penalty phase of capital trial). Without

access to the records of the Alabama Board of Pardons and Paroles, Mr. Jackson will be

unable to prove his claim.

'Such evidence is undoubtedly mitigating. See Wiggins v. Smith, 123 S. Ct. 2527,2542 (2003) (ineffective assistance of counsel where counsel failed to investigate and presentevidence of client's "troubled history"); Williams v. Taylor, 529 U.S. 362, 395-96 (2000)(counsel ineffective for failing to uncover and present evidence of client's "nightmarishchildhood," borderline mental retardation, and good conduct in prison); Skipper v. SouthCarolina, 476 U.S. 1 (1986) (capital defendant must be permitted to introduce evidence ofgood behavior while incarcerated during penalty phase of trial).

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B. Louis Taylor's Records

The State argues that Mr . Jackson is not entitled to discovery of any of Louis Taylor's

records because Mr. Jackson "has other available means with which to prove his allegations,

concerning his father ," and thus such records are not necessary for Mr . Jackson to prove his

claims . State 's Response , at 7. There is no legal basis for the State's opposition to this

discovery request.

First , it is irrelevant whether the State can suggest a different method by which Mr.

Jackson can prove his claims . Because the State is not conceding the facts related to this part

of Mr . Jackson ' s infectiveness claim,' it is inappropriate for the State to dictate how it

believes Mr . Jackson should ultimately prove the truth of his allegations. More importantly,

the State ' s argument is' unsupported by law ; there is no rule or case that suggests that the

Court can deny a Rule 32 petitioner's discovery request simply because a lawyer for the State

thinks there are other ways to prove the claim.

In addition , the State's position about how Mr . Jackson should prove his claim is

based on a myopic view of how to investigate and prove mitigation . Mr. Jackson's father's

records are necessary not only to prove the claims in the petition , but also to discover

additional mitigation evidence that has yet to have been uncovered. See ABA Guidelines for

the A ointment and Performance of Defense Counsel in Death Penalty Cases, Commentary

to § 10.7 n.215 (Revised Ed. Feb. 2003) ( "Records may document events that neither the

'See State 's Answer, at 54 (`This claim is denied.").

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client nor family members remember."); see also Williams v. Taylor, 362 U.S. 362, 395 n. 19

(2000) (relying on social worker's descriptions of the Williams home that could not have

been provided by the client, who was too young, and the adult family members, who were

too intoxicated, to recall the scene).

Mr. Jackson's request is not unduly burdensome. Mr. Jackson has alleged that his

father has had interaction with all of the identified agencies. As the Alabama Supreme Court

recognized in Land: if these facilities have no documents that relate to Land's claims, they

can simply say so. Merely determining whether such documents exist would not unduly

burden the State." Land, 775 So. 2d at 855.

Finally, by suggesting that Mr. Jackson is entitled to prove the facts related to his

father (albeit by "other available means"), the State is conceding the relevancy of the

information Mr. Jackson is seeking, and thus the fact that Mr. Jackson has shown "good

cause" for these records. The State's argument to the contrary should be rejected.

C. Marilyn Jackson 's Mental Health Records

The State argues that Mr. Jackson is not entitled to discovery of his mother's mental

health records, maintained by the Alabama Department of Mental Health and Mental

Retardation and/or the Department of Rehabilitation because the request is overly broad, not

relevant to his claim of mental retardation, and can be provided by Ms. Jackson. State's

Response, at 9. This Court should reject the State's arguments.

First, Mr. Jackson has not made an "overly broad" request. Mr. Jackson has requested

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any mental health records pertaining to his mother in the possession of a state agency, such

as the Alabama Department of Mental Health and Mental Retardation, or a state psychologist

or psychiatrist. These records are relevant to his claim that he is mentally retarded and

therefore exempt from execution, see Atkins v. Vir inia, 526 U.S. 304 (2002). Amended

Petition, at 67-69, and his claims that trial counsel failed to present evidence about Mr.

Jackson's "diminished mental capacity," as well as evidence that "Ms. Jackson's own mental

impairments prevented her from providing appropriate and meaningful guidance to

Shonelle." Amended Petition at 42-43. Such files are routinely obtained in the course of a

mitigation investigation; consequently, without such files it will be "practically impossible"

for Mr. Jackson to show that his lawyers were ineffective for failing to obtain these records

and present the evidence contained therein. Land, 755 So. 2d at 855.

Moreover, the State's argument that Ms. Jackson's mental health records are "not

relevant to Jackson's claim of mental retardation," because "Jackson either meets the

standards for mental retardation or he doesn't," State's Response, at 9, bespeaks an utter lack

of understanding about what mental retardation is, or how a diagnosis of mental retardation

is reached. See, e.g., Mental Retardation: Definition. Classification, and Systems of

Supports, American Association on Mental Retardation, 10`h ed. 2002, at 123-41 (family

biomedical history is critical to etiology of mental retardation in particular individual).

Finally, to the extent that Mr. Jackson is able to obtain some of these records without

obtaining a court order, that will be done. However, upon information and belief, Ms.

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Jackson received training through a program run by the State Department of Mental Health

and/or the Department of Rehabilitation, both of which require a court order to obtain

records. Obviously, if these agencies do not have any mental health records on Ms. Jackson,

"they can simply say so. Merely determining whether such documents exist does not unduly

burden the State." Land, 775 So. 2d at 855.

Mr. Jackson has shown "good cause" for access to these records because he has

alleged facts, which, if prove true, entitle him to relief. See Land, 775 So. 2d at 852.

Without access to Marilyn Jackson's mental health records, Mr. Jackson will be unable to

prove both his Atkins claim, as well as his ineffectiveness claim.

FOR THESE REASONS, as well as the reasons articulated in his previously filed

motions, Mr. Jackson requests that this Court grant him the discovery to which he is entitled

and afford him the opportunity to prove his facially meritorious claims. If the Court denies

Mr. Jackson's discovery requests, he will be prevented from developing and proving the

claims in his petition.

Respectfully Submitted,

((- 1,ji^ L^BryanjA. StevensonAngela L . SetzerEqual Justice Initiative of Alabama122 Commerce StreetMontgomery , AL 36104(334) 269-1803

1Dated : June 2 5, 2004 Counsel for Mr. Jackson

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CERTIFICATE OF SERVICE

I certify that on June 25, 2004, I served a copy of the attached motion by first class

mail, postage pre-paid, and properly addressed to:

Jeremy McIntireOffice of the Attorney GeneralAlabama State House11 South Union StreetMontgomery, AL 36130

Ang^la L. Setzer

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IN THE FIFTEENTH JUDICIAL CIRCUITIN AND FOR MONTGOMERY COUNTY

MONTGOMERY , ALABAMA

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SHONELLE JACKSON,

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PLAINTIFF,

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6vs.

STATE OF ALABAMA,7

DEFENDANT.8

CRIMINAL ACTION

CASE NO. CV-97-2300

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COURT REPORTER'S TRANSCRIPT OF PROCEEDINGSOCTOBER 13, 2004

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MONTGOMERY COUNTY COURTHOUSE

COURTROOM 3-B

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BEFORE: THE HONORABLE TRACY S. McCOOEYCIRCUIT JUDGE

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APPEARANCES

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ON BEHALF OF THE STATE:

JEREMY McINTIRE,.ESQUIREASSISTANT ATTORNEY GENERALMONTGOMERY, ALABAMA

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ON BEHALF OF MR. JACKSON:BRYAN A. STEVENSON, ESQUIREANGELA L. SETZER, ESQUIRE

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' Vicki H. ClarkOfficial Court Reporter

(334) 832-1365

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PROCEEDINGS

THE COURT: Mr. Jackson, how are you?

MR. JACKSON: Okay.

THE COURT: Okay. This is Shonelle Andre

Jackson versus State of Alabama, CC-97-2300. If

I could get the attorneys -- before we get

started, we have Mr. Jackson in the courtroom,

but if I could get the lawyers to stand up and

state their name and who they represent for the

Record.

MR. McINTIRE: Jeremy McIntire with the

Attorney General's office, Your Honor.

THE COURT: Thank you.

MS. SETZER: Angie Setzer on behalf of

Shonelle Jackson.

MR. STEVENSON: Bryan Stevenson on behalf of

Shonelle Jackson.

THE COURT: Okay. All right. I know we've

got a couple of things we've got to do. The

first thing, I think that we had an amended

petition on a Rule 32 that had been filed and

then responses to that. So I guess that's what

we need to take up first. And I know there were

all kinds of things with it about discovery and

whether we were going to have a hearing,

Vicki H. ClarkOfficial Court Reporter

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et cetera, et cetera.

So I guess let me -- Jeremy, do you want

to start for us?

MR. McINTIRE: Your Honor, in response to

Mr. Jackson' s amended petition, the State filed

three motions to dismiss, a motion to dismiss to

procedurally barred claims, a motion to dismiss

insufficient claims filed and a motion to

dismiss claims under 32.7(d). And the State

would be happy to address any of the individual

arguments within those motions. If the Court

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wants to ask about -12

THE COURT: Okay.

MR. McINTIRE: I think the motions

themselves are pretty clear ---

THE COURT: Right. And I've read --

MR. McINTIRE: -- as to why those motions

should be barred or dismissed.

THE COURT: -- all of those that you've

filed. I guess probably the easiest way is,

Bryan -- and I've read y'all's response. I

assume that's what we need to take up first.

I know there's also a motion to have a

mental evaluation done. There's discovery

requests. There's a bunch of stuff. So I don't

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' Vicki H. Clark

Official Court Reporter

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know where we need to start. But I guess we need

to start with that rule -- Amended Rule 32

Petition.

MS. SETZER: Your Honor, we have discovery

motions pending as well which --

THE COURT: And there's a lot of discovery

motions that y'all had that you had filed. And I

think y'all's position was, hey, we're not even

ready to argue and hear this because we still

have a lot of discovery that we have to get done

is what I got from g'all's motion.

MS. SETZER : Right.

THE COURT: Is that correct?

MS. SETZER : We filed motions for discovery

on records and files that are necessary for

Mr. Jackson to prove the claims in his petition.

So -

THE COURT: Yes. I mean , I think there were

all kinds of things, like records y'all need from

corrections and different mental health records,

et cetera.

MS. SETZER : Correct, correct.

THE COURT: So let's take up first --

MR. McINTIRE : Your Honor, if I might.

THE COURT: Yes.


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MR. McINTIRE: I think that the motions for

discovery will rest largely on what claims this

Court ultimately dismisses or decides from the

hearing --

THE COURT: Right.

MR. McINTIRE: I think it would be best to

handle the motions -- the State's motions to

dismiss first so that then we can understand what

claims are going to be before this Court for any

evidentiary hearing and then move to discovery

motions.

THE COURT: And I know ---- I mean, the only

hearing this Court's done -- I mean, we had the

hearing about the statement that was given to the

officer, you know, that the Supreme Court or the

Court of Criminal Appeals remanded back for us to

have a hearing; which we've done that. That's

the only hearing that I've actually had on this

case regarding Mr. Jackson. And so, anyway --

all right. Let's start there because, like I

said, I am -- you know, I'm not the trial judge

that tried this case, so I'm not familiar with

this case except for the transcript. But I

wasn't the actual trial judge.

So, anyway, why don't we start there?

Vicki H. Clark

Official Court Reporter(334) 832-1365

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Jeremy, let's start with the first one that y'all

have and let you make your argument, and then

I'll let y'all respond.

MR. McINTIRE: The first motion to dismiss

is the State's motion to dismiss procedurally

barred claims. As this Court is aware, under

Rule 32.2(a), certain claims that could have been

raised or were raised at trial or could have been

raised or were raised on appeal are barred from

the proceedings. The State has an extensive list

of claims in the amended petition that are

subject to the usual bars of Rule 32.2(a), and we

would simply submit that these claims fit under

that category; that they either could have been

raised on appeal or were raised on appeal or they

could have been raised at trial or they were

raised at trial and, therefore, are not properly

before this Court and are due to be procedurally

barred.

THE COURT: Okay. And, Bryan, what's

y'all's problem with the ones that Jeremy is

saying need to go because they could have been

raised and weren't?

MS. SETZER: Well, Your Honor, first, I

think we'd like to -- I'd just like to mention

Vicki H. Clark


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that we believe that before that Your Honor

dismisses any of these claims or decides whether

to hear them, we would need to obtain discovery

and fully develop the evidence in that -- in the

case before Your Honor decides to dismiss any of

the claims.

With regards to Mr. Mclntire's position

that these claims are procedurally barred,

specifically -- well, many of the claims were

raised on direct appeal, and we believe that this

Court should not dismiss them. Although they

were raised on direct appeal, it's necessary for

this Court to look at those claims when assessing

trial counsel's effectiveness and whether

Mr. Jackson's rights were violated in this case.

Two claims, specifically, the juror misconduct

claim, which is grounds two on page two of the

motion, and the Brady claim, they are contending

that both of those claims should be procedurally

barred because they could have been but were not

raised at trial and on appeal. Mr. Jackson

objects to that.

With regard to the juror misconduct

claim, Alabama case law is clear, Rule -- that

juror misconduct claims are cognizable in Rule 32


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proceedings, in this particular proceeding.

There was no reason -- no way that trial counsel

or co-counsel could have raised it at trial or on

appeal and, therefore, it is appropriate for this

Court to hear evidence on Mr. Jackson's claims

that jurors engaged in misconduct.

With regard to the Brady claim or the

Giglio claim, what we are alleging is that the

State, the prosecutor's office, suppressed

evidence. Mr. Jackson's trial counsel requested

the evidence. The State said we've given you

everything we have. And what we are now saying

is, well, they didn't give us everything. That

couldn't have been raised at trial. It couldn't

have been raised on direct appeal, and

Mr. Jackson should be allowed the opportunity to

present the evidence to show that, in fact, the

DA did suppress .certain pieces of evidence and

that would have -- that undermines the outcome of

his trial.

THE COURT: Now, let me ask y'all this, too,

because I know this case, it was tried, what, in

'97? Is that when --

MR. McINTIRE: Yes, Your Honor.

THE COURT: -- they tried it? And, I mean,


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it's kind of an interesting, I guess, little

twist on it in light of what is -- I mean, now we

know that you have to do extensive mitigation,

hire experts. You know, that's no longer an

option. I mean, you know, you're basically

you know, you're going to be incompetent as a

lawyer if you don't do that on a capital case.

And we know that. That's required now, and then,

I mean, you've got to do extensive mitigation,

have your mitigation experts. You know, they

need to be on board from the get-go.

But, obviously, that wasn't the law when

this case came about, but the -- the interesting

twist on it is the jury, you know, they're the

ones who recommended 12 and 0 life without

parole. So, I mean, with only 25 minutes of, I

think, mitigation argument, I mean, obviously,

that convinced them, hey, life without parole.

But the judge, who has a right to do it,

overruled that and gave him the death penalty.

So I'm sitting here thinking last night and I'm

going, well, you know, whether they did extensive

mitigation, you know, investigation, had the

experts, did all the things they should have, it

didn't matter in this case because, I mean, the


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jury, they said life without parole. I mean, it

would have been different, I think, obviously if

they had recommended the death penalty and then

the judge had upheld it. I don't know. I mean,

I'm just asking y'all.

This case is kind of -- it's got a

little bit of a different twist. And I assume -

I.don't know. I mean, Bryan, is Wiggins, does it

-- does it go back to old cases? I assume it

does.

MR. STEVENSON: Well, Your Honor --

MR. McINTIRE : Your Honor , may I --

MR. STEVENSON : -- just on that point, it

actually does -- the Wiggins case was actually

tried about the same time this case was tried.

THE COURT: It's retroactive on this stuff;

right?

MR. STEVENSON : It is. And, of course

and I'll let Ms. Setzer speak to this, but our

point, of course , is that it was the presentation

in front of the judge that made all of the

difference in this case . If you don't present

that mitigating evidence in front of that judge,

then, obviously , you're not effective.

THE COURT: Right . You're still thinking it


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did matter.

MR. STEVENSON : Oh, absolutely. If he

hadn't -

THE COURT: That the judge needed the

benefit -

MR. STEVENSON : Absolutely.

THE COURT: -- of hearing all of that as

well.

MR. STEVENSON : Absolutely, Your Honor.

THE COURT: What do you guys say about that?

Because that really --- out of everything about

this, the thing that's just been sticking with me

is that. We know if it was tried right now,

obviously, it would be tried totally different.

MR. McINTIRE : Well, every case can be tried

totally different.

THE COURT: Well, no -- but in light of

Wiggins, I mean, life has changed as far as

capital cases. We know that. It's no longer -

you know, we just did a CLE on it in this

courthouse about why you've got to hire a

mitigation expert from the jump. Right when you

get that case, you need to get them on board;

which speaking of that -- and that -- I'm just

going off the Record.


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(Off-the-Record discussion.)

THE COURT: But, you know, I guess what I'm

saying is the Court -- for the Court to sit here

and just ignore Wiggins, to just close my eyes

and say, well, you know, 25 minutes with no

mitigation, no experts, nothing, that's okay,

well, I know that isn't okay because that's not

what the law says now.

MR. McINTIRE: Your Honor, first of all, I

would respectfully disagree with your

interpretation of Wiggins. I don't think Wiggins

has any clear mandate that you have to hire a

mitigation expert, that you have to hire an

investigator. I think Wiggins stands for the

proposition that you have to do a reasonable

investigation, a competent investigation, and

that --

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THE COURT: But then what is competent?18

MR. McINTIRE: -- and that investigation is19

-- excuse me . I'm sorry. Go ahead.20

THE COURT: No. I'm just saying I agree

with you, but you're not competent unless you

hire the mitigation experts, because lawyers,

they don't have the training, the expertise, to

be able to do that. I mean, that's insane to

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Vicki H. Clark


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think that we do. We don't.

MR. McINTIRE : Well, I strongly disagree

with that , too, Your Honor . I don't think that's

the case.

THE COURT: I do.

MR. McINTIRE: And furthermore -

THE COURT: I mean, I could be wrong, but I

think that is the case based on --- I think

Justice O'Connor was pretty clear in her opinion.

I mean, I think it tells lawyers you better have

the necessary experts. We're talking about

someone's life, and you better have them, and you

better jump through all the hoops or it's not

correct.

MR. McINTIRE: I'm going to respectfully

disagree with Your Honor, and I think that

focusing on the Wiggins is really on the actions

that the lawyer takes. When you look at the

lawyer's -- from the lawyer's perspective, under

the circumstances of the case, the circumstances

of his client, and actually look at what did he

do to prepare for the mitigation phase and was it

reasonable in light of the total circumstances -

THE COURT: But do you know what? Nothing

was done in this case.


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MR. McINTIRE: Your Honor, he got -

THE COURT: 25 minutes. Come on.

MR. McINTIRE: Your Honor, he got a 12/0

verdict, so he obviously did something right in

this case. And, furthermore, the State has not

__ the State has not -- the State has already

conceded the fact that there should be a hearing

on their claims that counsel was ineffective

during the penalty and sentencing phases and also

as to Jackson's claim that he's mentally

retarded. The State has already conceded that

there should be a hearing on those claims. So I

really don't think that's the focus of today's

hearing. I think the focus -

THE COURT: And I'm not -- and I'm not

saying the lawyers weren't effective by only

doing 25 minutes, what they did. I mean, they

didn't have the benefit of what we now have. So

I'm not being critical of them, but I'm just

looking at it from the standpoint of the case law

that we have now and what the United States

Supreme Court is saying has to be done in capital

cases. And, I mean, maybe I am wrong, but I

think that if you read the Wiggins -- I think if

you do not get experts from the get-go on board,


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I think you' ve got real problems . I really do.

I mean, I could be completely off base, but I

I just think that that's what they're telling us,

you know.

MR. McINTIRE : Well, I would respectfully

disagree with Your Honor on that point.

Obviously, we'll get to that at a later date when

we both make our arguments as to those claims.

Just going back briefly to the

procedurally barred claims , I'd just like to

point out to the Court that under 32.3, Rule11

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32.3 -

THE COURT: Hold on for just a second,

Jeremy. Let me stop you there. Angela is

saying, hey, we've got to be able to do discovery

first, Judge, before we can even address these.

This is premature at this point. You can't

really rule on them and we can't address them

until we get proper discovery. Why is she wrong

on that?

MR. McINTIRE : She's wrong , Your Honor,

because Rule 32.2 is clear that procedural bars

apply to all cases, even death penalty cases.

Rule 32.3 states that once the State has pled

procedurally barred, the burden shifts back to


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the other side to disprove that bar -- to prove

the existence of that bar. They haven't done

that in this case. You don't need discovery to

do that. Either it could have been raised or it

couldn't have been raised. It's pretty clear

when you look at these claims that -- it's

obvious just from reading the petition of the

claims that they could've been raised or they

couldn't have been raised and that they're barred

because of that.

Also, in ex parte State -- in reference

to Hooks v. State, the Alabama Court of Criminal

Appeals held that there's no discovery -- there

is no right to discovery on a procedurally barred

claim, which is what they're attempting to do is

get discovery on a procedurally barred claim by

saying, well, we need discovery to see if they're

procedurally barred. Well, the Court of Criminal

Appeals has said, no, that is not right; there is

no discovery on procedurally barred claims. You

can look at the claims themselves and decide

whether or not they're procedurally barred.

The State has pled these bars. The

burden is now on Mr. Jackson to prove that they

do not exist.


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THE COURT: Okay.

MS. SETZER: Your Honor, with regard to

that, I think Mr. McIntire just stated that it's

our burden now to disprove the procedural bars.

Well, in order to do that, we need to obtain

discovery to ascertain whether or not these

claims could have been raised on direct appeal or

could have been raised at trial. We can't do

that without discovery, and so our position

would be that we do need discovery in order to

disprove --

THE COURT: You're saying at this point I

don't even know, Judge, if we could have or

couldn't have because I don't have sufficient

information to be able to even make that, you

know, statement. I mean, I've got to have some

more information is what y'all are saying.

MS. SETZER: Right.

THE COURT: Well, what about that, Jeremy?

They're saying, hey, we don't even know.

MR. McINTIRE : Judge -

THE COURT: I mean, I know you're saying

they should know and they know based on the trial

and what they've got, that there isn't anything

new they need; they can tell is what you guys are


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saying.

MR. McINTIRE: I think it's clear from the

claims themselves, Your Honor. Just as an

example, claim six in the petition is that the

trial court committed reversible error for

failing to instruct the jury on the lesser

included offense of robbery. Now, that was

raised on appeal, on his direct appeal. Now,

what discovery do they need to determine whether

or not that claim is procedurally barred?

THE COURT: No. I agree with you. I think

some of them probably are procedurally barred,

but I bet some of them, they might need some more

information. I mean, I agree with you. I think

there's some of them that -- like that, yes,

there isn't anything else you need on that. But

I bet there's some that they are going to need

some more. I don't know, I mean, but I bet there

is.

MS. SETZER : Your Honor, I think -- I mean,

I agree with you. I mean, I think that we would

say, you know, we are likely --- we may concede

that some of them, in fact, are procedurally

barred.

THE COURT: Right.


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MS. SETZER : But at this point our position

would be that we do need discovery in order to

ascertain that and that it would be premature for

this Court to dismiss these claims before

discovery has taken place and before we're able

to get all of that information.

THE COURT: And what exact discovery do you

guys want?

MS. SETZER : Well, we have --

THE COURT: And I know you listed a number

of things.

MS. SETZER : Right. We have -- there are

two motions currently pending before this Court,

discovery with relation to prosecution files and

then discovery with relation to institutional

files, Department of Correction files, and the

files that you mentioned earlier. The State has

agreed that we are entitled to some of these

discovery items, in particular, the District

Attorney's file with regard to Mr. Jackson, some

of the institutional files that relate to

Mr. Jackson.

The things that they are objecting to

and that we contend we need, in particular, for

example, they are saying that we do not -- that


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we're not entitled to the DA files with regard to

the prosecution of the co-defendants in this

case. We have alleged that both the State

suppressed evidence of deals or agreements that

were entered into with the co-defendants and also

that trial counsel was ineffective during the

guilt phase, during the guilt and innocence phase

of the trial by failing to investigate, by

failing to challenge the State's presentation of

its case. We need the District Attorney's files

with regard to the co-defendants, with regard to

prior prosecutions of both the co-defendants and

Mr. Jackson in order to prove our claims, in

order to show that, in fact, the District

Attorney suppressed evidence or that trial

counsel was ineffective, that they performed

deficiently, and, you know, this is what would

have happened had --

THE COURT: So, Jeremy, y'all are saying we

don't have a problem with turning over the DA's

files on this case with Mr. Jackson, but we do

have a problem with giving them the DA's files on

the co-defendants?

MR. McINTIRE: That's correct, Your Honor,

because the claims are procedurally barred. The


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Court of Criminal Appeals has stated that there

is no right to discovery of procedurally barred

claims.

THE COURT: But what about their argument

that they think that they can prove maybe that

there was some bargains that they should have

investigated, but they won't know unless they see

the file? I don't know. I'm just asking. That

they need them because they don't know these

things yet.

MR. McINTIRE: First, Your Honor, those

claims are procedurally barred. Also, those

Brady claims are also due to be dismissed as

insufficiently pled. I think we're getting into

kind of a circular argument here that's not

really going anywhere, and I think you just have

to -- the burden is on them under Rule 32.3 to

prove that these claims are not procedurally

barred. They have to do something in their

amended petition that states why we couldn't have

discovered this, why counsel couldn't have

discovered this, when did this all happen.

There's none of that in their petition, Your

Honor. They don't plead any facts that tend to

say these claims could not have been raised at

Vicki H. Clark


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trial because of this; these claims could not

have been raised on appeal because of this.

There's nothing in their petition that states any

of that; therefore, these claims are procedurally

barred.

THE COURT: What about that? Do you guys

have specifics?

MS. SETZER: Well, with regard to the

ineffective assistance of counsel claims that I

mentioned earlier, those are not procedurally

barred. You know, the State has conceded that

IAC -- of course, that some of the allegations

are cognizable, but we contend that all of the

IAC allegations, ineffective assistance, are

cognizable.

With regard to the Brady claim or

suppression of evidence, we have alleged that

trial counsel made motions. They asked for the

stuff from the prosecutor, and the prosecutor

said we've given you everything that we have or

we will give you everything that we have.

Without the evidence of this suppression, without

the suppressed evidence, we will never be able to

show that, in fact, the prosecutor withheld the

-- I mean, we'll never be able to prove our

I Vicki H. Clark


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claim. It's not a procedurally barred claim. It

is cognizable under Rule 32.

A case out of this county, Montgomery

County, Martin v. State, recently, the Court of

Criminal Appeals granted relief in the case where

the DA suppressed evidence and this evidence was

discovered after several rounds of discovery.

Okay. So this is an example of these claims

being cognizable under Rule 32 and that we do

need discovery in order to prove our claim.

THE COURT: Well, Jeremy, what's wrong with

giving them the discovery?

MR. McINTIRE: Your Honor, with all due

respect, they're on a fishing expedition. They

don't plead any facts, any specific facts, that

there was a deal. They're -

THE COURT: Well --

MR. McINTIRE: They're basically on a

fishing expedition trying to get all of this

discovery information to see if there was. Rule

32 is a means for vindicating actual claims.

It's not a means for investigating --

THE COURT: Well, I -

MR. McINTIRE : -- possible claims. And what

they're wanting to do -

Vicki H. Clark


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THE COURT: I hear what you're saying, but,

I mean, we're talking about, you know, someone's

life. Okay. So, I mean, the stakes are as high

as they can get. You know, we're not talking

about someone who is just going to prison for a

number of years or whatever. I mean, we're -

you know, the stakes are as high as they can get.

What is wrong with letting them have the

discovery? If they are on a fishing expedition,

then they're not going to be able to prove it

anyway. Okay. I mean, they can't create things

that aren't there. But if, in fact, they're

right -- I mean, I don't know if they are or not.

But if they are right, doesn't that need to come

to light?

MR. McINTIRE: Your Honor, that -- Rule 32

is not the opportunity for them to try to retry

the whole case and go on a large fishing

expedition and try to raise every conceivable

thing --

THE COURT: Well, I don't think they're

retrying the case . I think they're just -

MR. McINTIRE: If you read their petition,

they are, Your Honor.

THE COURT: -- saying they need their


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information to be able to argue these motions

adequately to the Court, which is what they need

to do.

MR. McINTIRE : I would also point out, Your

Honor, that in a recent case by the Court of

Criminal Appeals, Wood v. State, 2004 Westlaw

1909291, the Court of Criminal Appeals again

reiterated that a_Brady claim raising a Rule 32

petition is procedurally barred under Rules

32.(a)(3) and (a)(5) where the petitioner fails

to instruct a claim was based on newly discovered

evidence. In their petition they do not say it

was based on newly discovered evidence. They

offer no basis to support an inference or -- that

a deal existed and they offered no facts as to

what that deal was, when it came about, anything.

MS. SETZER : Mr. McIntire ' s is relating to

newly discovered evidence which is a specific

provision of Rule 32.3(e) and constitutional

violations which is another specific provision of

Rule 32, Rule 32.2(a). What we have alleged is

not because of newly discovered evidence

necessarily but that this is a constitutional

violation. The whole idea of a Brady claim, of a

suppression of evidence claim, is that Mr.


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Jackson could not have -- I mean, the State's

suppressed it. They kept it from him. That's

part of the requirement for getting relief under

a Brady claim. He could not -- his trial counsel

could not have done anything at trial. What

we're saying is we believe based on our

investigation that the DA entered into deals or

agreements with the co-defendants in exchange for

their testimony. We now need an opportunity to

prove that. Rule 32 is precisely the arena for

these types of claims. It's an opportunity for

us to bring in new evidence and show this Court

how Mr. Jackson's constitutional rights were

violated.

MR. McINTIRE: Your Honor, they're just

assuming that the State violated Brady, that the

State would just willy nilly break the law and do

all of this. There's no facts in their petition

to support any of their allegations. All they do

is make a bare allegation and a conclusion

without any supporting facts whatsoever. They

state that in their investigation they found this

or this that would support that. Well, what is

it? They don't put it in their petition, raise

those facts in their petition to support their


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allegations. Instead, they just make a bare

allegation that they believe, that they believe,

not even that there was, that there may have been

a deal. Well, why? They don't state that in

their petition. They don't offer any facts or

any evidence to support their allegation.

MS. SETZER: Your Honor, Mr. Jackson is an

eighteen-year-old -- at the time of the crime was

an eighteen-year-old young man. There were four

individuals who were charged with capital murder

of this crime. He is the only person that's on

death row. All three of the codefendants are now

serving lesser sentences, 21 years, 27 years,

life. We believe based on our investigation that

there were deals entered into for exchange for

their testimony. It's sufficiently pled. It's a

cognizable claim before this Court, and we would

ask that this Court grant discovery so we can

prove it.

MR. McINTIRE: Your Honor, I would again

just urge you to look at the petition itself and

look at the claim itself. They --

THE COURT: You know, I think they get

discovery. I really do. Like I said, you know,

y'all -- you know, mandamus me, take me up.


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Maybe the Court will agree with y'all and say no.

But I just -- I mean, I think they are entitled

to it. I think that by not letting them do it,

there would be a problem . I mean, I think

they're entitled to it.

And, also, I'll put it this way.

There's no harm in letting the discovery be done,

but there is big harm in not letting it be done.

That's for sure. And maybe it shows nothing and

maybe there is nothing, and that's fine. I mean,

I don't know. But I think that they're entitled

to it. I mean, I read their amended petition.

They're making some arguments about some things

that they think -- I think they're entitled to

it. They get it. I'm going to give it to them.

Well, with that, I mean, y'all are going

to have to get the discovery first before we can

argue any of this; right?

MS. SETZER: Yes, ma'am.

THE COURT: How long is that going to take?

And, I mean, Jeremy, like I said, mandamus me. I

mean, maybe the Court will agree with you and

say, hey, Judge McCooey is wrong, and then we'll

come back and go from there. If they say I'm

right, then we'll just proceed onward.


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MS. SETZER: Your Honor, I don't know how

long. A couple of months? I don't know exactly

what the time -

THE COURT: Well, that's fine. Well, let's

do this. Get me an order -- y'all draw it and

make sure Jeremy looks at it -- saying that I'm

letting y'all have the discovery. And then,

Jeremy, y'all mandamus me. We'll see what the

Courts say. If they agree with y'all, then, like

I said, we'll come back and just go from there.

If they don't, then we'll set this at a later

date when we've done the discovery and we can

proceed forward.

MR. McINTIRE: Your Honor, just two quick

points.

THE COURT: Yes.

MR. McINTIRE: For the Record, could you

explicitly state what discovery requests you are

granting? And, also, we would also state that we

do not wish to see the order just so the Court of

Criminal Appeals doesn't think that in some way

we conceded to it.

THE COURT: Oh, okay. Well, that's fine. I

mean, I just let both sides look at it.

I am granting all of the discovery that


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they are requesting in both -- and I had y'all's

two motions that y'all had filed.

MS. SETZER : They're the motion for

discovery of prosecution files and motion for

discovery of institutional files.

THE COURT: Right. And I'm granting it on

both of those, Jeremy. Is that clear?

MR. McINTIRE : So you're granting all

discovery in both motions for discovery?

THE COURT: Yes. Those two motions that

were before this Court, I am granting discovery

in both of those.

MR. McINTIRE : Your Honor, when will this

order take place? In terms of there was a case

Jason Sharp, ex parte Sharp , that the Supreme

Court said you have seven days or whatever the

time limit is to appeal from the Court's order,

I'd like to know if the Court is going to make it

effective today or -

THE COURT: Can y'all get it to me today?

MS. SETZER: Sure.

THE COURT: I'll sign it today.

MR. McINTIRE : I would just request to make

sure we get a copy as soon as possible.

THE COURT: Yes. I will sign it today, let

Vicki H. Clark


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y'all tile it downstairs , so y'all can go from

today.

MS. SETZER : I'll get it to you.

THE COURT: Okay. Anything else?

MS. SETZER : I think that's it.

THE COURT: All right. Mr. Jackson, we'll

be in touch. And, Jeremy, y'all do what you've

got to do.

MR. McINTIRE : Yes, Your Honor.

THE COURT: And we'll just wait to hear from

the Courts, and we'll proceed forward.

Okay. Thank you very much. Y'all have

a nice day.


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CERTIFICATE

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STATE OF ALABAMA3

COUNTY OF MONTGOMERY4

I, VICKI H. CLARK, OFFICIAL COURT REPORTER IN AND

FOR THE FIFTEENTH JUDICIAL CIRCUIT, MONTGOMERY

COUNTY, ALABAMA, DO HEREBY CERTIFY THAT I

REPORTED IN MACHINE SHORTHAND THE FOREGOING

HEARING AS STATED IN THE CAPTION HEREOF; THAT MY

SHORTHAND NOTES WERE LATER TRANSCRIBED BY ME OR

UNDER MY SUPERVISION, AND THAT THE FOREGOING

PAGES NUMBERED 2 THROUGH 31, BOTH INCLUSIVE,

REPRESENT A FULL, TRUE AND CORRECT TRANSCRIPT OF

SAID PROCEEDINGS; THAT I AM NEITHER KIN NOR OF

COUNSEL TO ANY PARTIES IN THIS PROCEEDING NOR IN

ANY WAY INTERESTED IN THE RESULTS THEREOF.

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DATED THIS THE 15TH DAY OF OCTOBER, 2004.19

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22CKI H. CLARK

OFFICIAL COURT REPORTER

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(334) 832-1365

1IN THE FIFTEENTH JUDICIAL CIRCUIT COURT,

MONTGOMERY COUNTY, ALABAMA

111

1111111I

1L1I

SHONELLE ANDRE JACKSON,

Petitioner,*

V.

STATE OF ALABAMA,

Respondent.

* Case No. 97-2300.60* p31 -14'?

^h' ^ c* <

COURT ORDER

On October 13, 2004 , the parties appeared before this Court for argument on several

pending motions . After hearing arguments from counsel for Petitioner Shonelle Jackson and

counsel for the State of Alabama and upon review and consideration of the motions and the

responsive pleadings , as well as the Petitioner 's amended petition , the State ' s answer, the

trial transcript and other pleadings , this Court hereby ORDERS that the Petitioner 's Motion

for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32

Evidentiary Hearing and Petitioner ' s Motion for Discovery of Institutional Records, Files,

and Information Necessary to a Fair Rule 32 Evntiary Hearing are hereby GRANTED.

(e w. A A ( , )vfh , A t r r 1 G^liewl- CI

( ÎILe, ) 'V-("v1 L

APO -1 5NO.

IN THE SUPREME COURT OF ALABAMA

EX PARTE SHONELLE ANDRE JACKSON

(In re : Ex parte State of Alabama

(In re : Shonelle Andre Jackson,

Petitioner

V.

State of Alabama,Respondent))

Alabama Court of CriminalAppeals No. CR-04-0096

Montgomery County CircuitCourt No. CC-97 2300.60

FILED

APR -1 2005

CLERKALA COURT CRIMINAL APPEALS

PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OF

CRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY,CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT

Bryan A. StevensonAngela L. SetzerEqual Justice .. Initiative ofAlabama122 Commerce Street

Montgomery , AL 36104

Ph: (334 ) 269-1803

Fax: (334 ) 269-1806

Counsel for Shonelle Jackson

April 1, 2005

NO.



(In re : Ex parts State of Alabama


Petitioner

V.


Alabama Court of Criminal

Appeals No . CR-04-0096

Montgomery County CircuitCourt No. CC-97 2300.60


CRIMINAL APPEALS AND THE HONORABLE TRACY S . MCCOOEY,

CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT

Bryan A. StevensonAngola L. Setzer

Equal Justice.- Initiative of

Alabama

122 Commerce StreetMontgomery, AL 36104

Ph: (334) 269-1803

Fax: (334 ) 269-1806


April 1, 2005

TABLE OF CONTENTS

TABLE OF AUTHORITIES . .

PETITION FOR WRIT OF MANDAMUS . . . . . . . . . . .

STATEMENT OF THE CASE AND FACTS NECESSARY TO AN

UNDERSTANDING OF THE ISSUES PRESENTED . . . .

v

1

I

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . 5

STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF REASONS WHY WRIT SHOULD ISSUE . . . . .

STATEMENT WHY WRIT SHOULD ISSUE . . . . . . . . . .

6

7

I. THE ALABAMA COURT OF CRIMINAL APPEALS ERRED IN

GRANTING THE STATE ' S PETITION FOR A WRIT OF MANDAMUS

BECAUSE NO EXCEPTIONAL CIRCUMSTANCES ARE PRESENT IN

THIS CASE . . . . . . . . . . . . . . . . . . . . . 7

A. The Alabama Court of Criminal Appeals Erred

in Granting the Writ of Mandamus Because

the State had an Adequate Remedy by Appeal

. . . . . . . . . . . . . . . . . . . . . . . 8

B. The Alabama Court of Criminal Appeals Erred

in Granting the Writ of Mandamus Because

the Trial Court Did not Abuse its

Discretion as Mr. Jackson has Shown "Good

Cause" for His Discovery Requests . . . . . . . 12

1. Prosecution Files . . . . . . . . 15

a. Files Relating to the

Co-Defendants and Prior

Prosecutions . . . . . . . . . . . . . 16

b. Jail Visitor Sign-In

' Sheets . . . . . . . . . . . . . . 19

i

Y

c. Documents Relating toState Witnesses . . . . . . . . . . . 20

d. Physical Evidence

Introduced into the

Record at Trial . . . . . . . . . . . 22

e. Juror Questionnaires

and Materials . . . . . . . . . . . . 24

2. Records of Louis Taylor . . . . . . . . . . 25

3. Records of the Department of

Human Resources and the Alabama

Board of Pardons and Paroles . . . . . . . 29

II. CONCLUSION . . . . . . . . . . . . . . . . . . . . . 30

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . 31

APPENDIX OF EXHIBITS

TAB 1 Opinion of the Alabama Court of Criminal

Appeals dated March 18, 2005

TAB 2 Order of Honorable Judge Tracy S. McCooey datedMarch 23, 2005

TAB 3 State of Alabama's Petition for Writ of

Mandamus to Honorable Tracy S. McCooey, Circuit

Judge, Fifteenth Judicial Circuit

Exhibit A Shonelle Jackson's Amended Rule

32 Petition

Exhibit B State's Answer to Shonelle

Jackson's Amended Rule 32

Petition

Exhibit C State 's Motion to Dismiss

Procedurally Barred Claims

Exhibit D State's Motion to Dismiss

ii

Insufficiently Plead Claims

Exhibit E State's Motion to Dismiss ClaimsPursuant to Rule 32.7 (d)

Exhibit F Mr. Jackson's Motion for

Discovery of Institutional

Records, Files, and Information

Necessary to a Fair Rule 32

Evidentiary Hearing

Exhibit G Mr. Jackson's Motion for

Discovery of Prosecution Files,

Records and Information Necessary

to a Fair Rule 32 Evidentiary

Hearing

Exhibit H State's Response to Mr. Jackson's

Motion for Discovery of

Institutional Records, Files, and

Information Necessary to a Fair

Rule 32 Evidentiary Hearing

Exhibit I State's Response to Mr. Jackson's

Motion for Discovery of

Prosecution Files, Records, and

Information Necessary to a Fair

Rule 32 Evidentiary Hearing

Exhibit J Mr. Jackson's Response to the

State's Opposition to his

Discovery Reque$-ts

Exhibit K Transcript of the Hearing Held on

October 13, 2004 in the

Montgomery County Circuit Court

on the Parties' Motions

Exhibit L Circuit Court's Order of October

13, 2004

TAB 4 Shonelle Jackson's Answer in opposition to the

State of Alabama's Petition for Writ of

iii

Mandamus to Honorable Tracy S. McCooey, CircuitJudge, Fifteenth Judicial Circuit

Exhibit A Petitioner's Response to the

State's Motions to Dismiss

TAB 5 Brief of Amicus Curiae of the Alabama

Department to Human Resources

TAB 6 Petitioner's Objection to this Court's Signing

of the State's Proposed Orders Without

Modification

TAB 7 State's Response to Jackson's Objection to thisCourt's Signing of the State's Proposed Orderswithout Modification

iv

TABLE OF AUTHORITIES

FEDERAL CASES

Banks v. Dretke, 540 U.S. 668 . . . . . . . . . . . 17

Batson v. Kentucky, 476 U.S. 79 . . . . . . . . . . 24

Brady v. Maryland, 373 U.S. 83 . . . . . . . . . . 16

Davis v. Alaska, 415 U.S. 308 . . . . . . . . . . . 21

Giglio v. United States, 405 U.S. 150 . . . . . . . 16

J.E.B. v. Alabama, 511 U.S. 127 . . . . . . . . . . 24

Lewis v. Dretke, 355 F.3d 364 . . . . . . . . . . . 27

Napue v. Illinois, 360 U.S. 264 . . . . . . . . . . 17

Wiggins v. Smith, 539 U.S. 510 . . . . . . . . . . 26

Williams v. Taylor, 529 U.S. 362 . . . . . . . . . 27

STATE CASES

Ex parte Compass Bank, 686 So.2d 1135 . . . . . . . . 9

Ex parte Crawford Broadcasting Company, No. 1031094,2004 WL 2914 924 . . . . . . . . . . . . . . . . . . 7

DeBruce v. State, 890 So.2d 1068

Ex parte Dillard Department Stores, Inc.,

879 So . 2d 1134 . . . . . . . . . . . . . . . . . . . 9

Ex parte Dobyne, 805 So.2d 763 .

Ex parte ],pumas , 778 So . 2d 798 . . . . . . . . . . . 10

V

Ex part O'Leary, 438 So.2d 1372 . . . . . . . . . . 23

Hamilton v. State, 677 So.2d 1254 . . . . . . . 15, 17

Hardy v. State, 804 So.2d 247 . . . . . . . . . . . 20

Harris v. State, No. CR-01-1748, 2004 WL 2418073 . 26

Ex parte Hutcherson, 847 So.2d 386 . . . . . 5, 6, 10

Jefferson v. State, 645 So.2d 313 . . . . . . . . . 15

Ex parte Land, 775 So. 2d 847

. . . . . . . . . . . . 6, 13, 14, 18, 19, 22, 24, 27

Ex parte Lynn, 477 So.2d 1385 . . . . . . . . . . . 21

Ex parte Mack, No. CR-02-0431, 2003 WL 1950008 . . 13

Martin v. State, 839 So.2d 665 . . . . . . . . . . 15

McGahee v. State, 885 So.2d 191 . . . . . . . . . . 11

McMillian v. State, 616 So.2d 933 . . . . . . . . 20

Ex parte McNair, 653 So.2d 353 . . . . . . . . . . 10

Ex parte Norfolk Southern Rye Co., No. 1030476, 2004 WL

1950297 . . . . . . . . . . . . . . . . . . . . . . 9

Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 . . .

• . • . . . . . . . . . . . . . . ... . . 6, 7, 8, 9

Ex parte Pierce , 851 So.2d 606 . . . . . . . . . . 11

Ex parte State (In re: Shonelle Andre Jacksonv. State of Alabama), No. CR-04-0096, 2005 WL 628485. . . . . . 4, 8, 12, 15, 16, 17, 19, 21, 22, 25, 28

Sims v. State, 587 So.2d 1271 . . . . . . . . . . . 24

Ex parte Slaton , 680 So . 2d 909 . . . . . . . . . . 13

vi

PETITION FOR WRIT OF MANDAMUS

Petitioner Shonelle Jackson respectfully petitions this

Court, pursuant to Rule 21(e) of the Alabama Rules of

Appellate Procedure, to issue a writ of mandamus to the

Alabama Court of Criminal Appeals directing it to vacate its

opinion of March 18, 2005, ordering the Honorable Judge Tracy

McCooey of the Fifteenth Judicial Circuit to set aside her

orders granting discovery in this case. Petitioner also

requests this Court to direct Judge McCooey to vacate the

order she entered following the Court of Criminal Appeals'

opinion.'

STATEMENT OF THE CASE AND FACTS NECESSARY TO AN UNDERSTANDING

OF THE ISSUE PRESENTED

In 1998, Shonelle Jackson, who was eighteen years old at

the time of the crime, was convicted of capital murder and

sentenced to death, despite a unanimous 12-0 jury verdict of

life without the possibility of parole. Mr. Jackson is

currently before the Montgomery County Circuit Court seeking

1 On March 23, 2005, Judge McCooey complied with the Court

of Criminal Appeals' opinion (that is the subject of this

mandamus petition) by entering an order vacating her prior

rulings granting Mr. Jackson's discovery motions. See Appendix

to Petition for Writ of Mandamus to the Alabama Court of

Criminal Appeals and Circuit Judge Tracy S. McCooey of the

Fifteenth Judicial Circuit, Tab 2.

1

I

relief from his conviction and sentence pursuant to Rule 32 of

the Alabama Rules of Criminal Procedure.

Mr. Jackson filed a timely Rule 32 petition on July 30,

2003. The State filed an answer on October 28, 2003, and on

February 26, 2004, moved for dismissal of some of the claims

in Mr. Jackson's petition based on allegations of procedural

bar, or failure to satisfy pleading requirements. On March 1,

2004, Judge McCooey signed the State's proposed orders

dismissing a number of Mr. Jackson's claims.

Mr. Jackson subsequently filed an objection to the trial

court's order and a motion for reconsideration. See Tab 6.2

Mr. Jackson additionally filed an Amended Rule 32 petition,

and motions in which he moved the circuit court for discovery

of prosecution files and institutional records necessary to

prove these claims. See Motion for Discovery of Institutional

Records (Tab 3, Exh. F); Motion for Discovery of Prosecution

Files (Tab. 3, Exh. G).'

In response, the State argued that "Jackson has no

2 Exhibits contained in the appendix to this petition arereferenced as "Tab "

3 Exhibits filed with the State's petition for writ of

mandamus in the Alabama Court of Criminal Appeals will be

referenced as "Tab 3, Exh.

2

standing to complain about the orders regarding his original

petition, as they have no affect on his first amended

petition, which has superseded the original petition." (Tab

7 , at 5 . )

With respect to Mr. Jackson's amended petition, the State

asserted that most of the claims should be dismissed because

they were either insufficiently specific, procedurally barred,

or did not state a claim upon which relief could be granted.

(See Tab 3, Exh. C, D, E) While the State acknowledged that

Mr. Jackson was entitled to some of the discovery items he

requested, the State objected to other items, arguing that Mr.

Jackson had failed to show "good cause" for his requests, in

part because it believed the circuit court should have

dismissed the claims on which they were based. (See Tab 3,

Exh. H, I).

On October 13, 2004, Judge McCooey held a hearing on the

State's motions to dismiss, as well as Mr. Jackson's discovery

requests. After hearing arguments from both parties and

reviewing the pleadings, the trial court granted Mr. Jackson's

discovery motions, (Tab 3, Exh. L), and reserved a ruling on

the State's motions to dismiss. (Tab 3, Exh. K, at 28-29).

On October 20, 2004, the State filed a petition for writ

3

of mandamus asking the Alabama Court of Criminal Appeals to

reverse the trial court's discovery order because, it claimed,

the trial court erred in finding that "good cause" for Mr.

Jackson's discovery requests existed. (Tab 3, at 4). Mr.

Jackson submitted a response in which he argued that mandamus

was not appropriate or necessary, and that, in any event, he

had established "good cause" for his discovery requests. (Tab

4) .

On March 18 , 2005 , the Alabama Court of Criminal granted

the State ' s petition for writ of mandamus , and directed Judge

McCooey to vacate her rulings on Mr. Jackson ' s two discovery

motions . Ex arte State I : Sh nel Andr e Jackson v.

State of Alabbamal, No. CR- 04-0096, 2005 WL 628485, at *12

(Ala. Crim. App. Mar. 18, 2005) (attached as Tab 1). The

court did not address the extraordinary nature of mandamus, or

its limited application to only the most exceptional

circumstances, but simply concluded that "the State has met

its burden of establishing the prerequisites for the issuance

of this writ of mandamus," gx-Parte State, 2005 WL 628485, at

*4, 11, and that Mr. Jackson had failed to show good cause for

the requested discovery.

This Court should issue a writ of mandamus to the Alabama

4

Court of Criminal Appeals directing it to vacate its order

because mandamus review of the trial court's discovery order

was inappropriate. This is not an "exceptional" issue

warranting an extraordinary remedy and Mr. Jackson has shown

"good cause" for his discovery requests.

STANDARD OF REVIEW

Mandamus is an extraordinary remedy that will be issued

when: 1) there is a clear legal right in the petitioner to the

order sought; 2) an imperative duty upon the respondent to

perform, accompanied by a refusal to do so; 3) the lack of

another adequate remedy; and 4) properly invoked jurisdiction

of the court. Ex parte Hutcherson, 847 So. 2d 386, 387-88

(Ala. 2002).

STATEMENT OF JURISDICTION

This Court has jurisdiction of this petition pursuant to

Rule 21(e) of the Alabama Rules of Appellate Procedure, "which

provides that a decision by a court of appeal on an original

petition for a writ of mandamus may be reviewed de novo by

this Court." Ex parte Hutcherson, 847 So. 2d 386, 387 (Ala.

2002). The Alabama Court of Criminal Appeals issued its

opinion granting the State's petition for a writ of mandamus

on March 18, 2005. Mr. Jackson's petition to this Court is

5

being timely filed within fourteen days of that order. ALA.

R. APP. P. 21 (e) (2) .

STATEMENT OF ISSUES

1. Should the Alabama Court of Criminal Appeals have

granted the State of Alabama's petition for writ of

mandamus where the trial court granted the Rule 32

petitioner's discovery motions and withheld a ruling

on the State's motion to dismiss and where the State

did not have a clear legal right to the order it

sought and has an adequate remedy by ordinary

appeal?

2. Should the Alabama Court of Criminal Appeals havegranted the State of Alabama's petition for writ ofmandamus reversing the trial court's postconvictiondiscovery order in a capital case where thepetitioner demonstrated "good cause" for therequested items?

SUMMARY OF THE REASONS WHY THE WRIT SHOULD ISSUE

The Montgomery County Circuit Court properly granted

Shonelle Jackson's motions for discovery of items necessary to

prove the facially valid claims in his Rule 32 petition. The

court also properly reserved ruling on the State's motions to

dismiss. In addition to being proper, these rulings are

typical in Rule 32 litigation and do not present an

"exceptional" case warranting mandamus review. As such, this

Court should order the Alabama Court of Criminal Appeals to

vacate its order granting the State's petition for a writ of

mandamus.

6

STATEMENT WHY WRIT SHOULD ISSUE

I. THE ALABAMA COURT OF CRIMINAL APPEALS ERRED IN

GRANTING THE STATE ' S PETITION FOR A WRIT OF MANDAMUS

BECAUSE NO EXCEPTIONAL CIRCUMSTANCES ARE PRESENT IN

THIS CASE

The "judicial system cannot afford immediate mandamus

review of every discovery order." Ex Qarte Ocwen Fed. Bank,

FSB, 872 So. 2d 810, 813 (Ala. 2003). Rather, mandamus is an

"extraordinary" remedy that is limited to cases where 1) there

is a clear legal right in the petitioner to the order sought;

2) an imperative duty upon the respondent to perform,

accompanied by a refusal to do so; 3) the lack of another

adequate remedy; and 4) properly invoked jurisdiction of the

court.' Ex parte Hutcherson, 847 So. 2d 386, 387-88 (Ala.

2002). As Justice Moore noted in his concurring opinion in

Ocwen:

It is not the business of this Court to look over

the shoulder of a trial judge or to question every

decision a judge makes just because a party is

dissatisfied.

Ocwen , 872 So. 2d at 817 (Moore , C.J., concurring in the

4 This Court has recognized that mandamus is appropriate

for reviewing discovery orders. Ex_p rte Land, 775 So. 2d 847

(Ala. 2000). However, a writ of mandamus will only issue in

exceptional circumstances "which amount to a judicial

usurpation of power." Ex pate Sullivan, 779 So. 2d 1157,

1160 (Ala. 200,0) .

7

result) .

In this case, the Alabama Court of Criminal Appeals erred

in granting the State's petition for a writ of mandamus

because: 1) the State had an adequate remedy by ordinary

appeal, and thus could not show that it would suffer the kind

of harm necessary for mandamus review; and 2) the trial court

did not abuse its discretion in granting Mr. Jackson's

discovery requests, and thus the State could not demonstrate

a clear legal right to the order sought.

A. The Al bama Court of Criminal A ea Erred

in Granting the Writ of Mandamus Beca

The State Had an Adequate Remedy by A al

Generally, a regular appeal of a discovery order is an

adequate remedy. Ocwen, 872 So. 2d at 813. Review by appeal

is inadequate in only a few "exceptional" situations, such as

when a privilege is disregarded, or when a discovery order is

unduly burdensome. See Ex parte Crawford Broadcasting

Company, No. 1031094, 2004 WL 2914924, at 42 (Ala. Dec. 17,

2004) .

Mr. Jackson made a limited request for a discrete number

of records on a discrete number of individuals: his parents'

penal and mental health records, DHR records concerning Mr.

Jackson, the District Attorney's files relating to the death

8

of the victim and the prosecution of this case (including the

files of the three co-defendants who testified against Mr.

Jackson at trial, all of whom received lesser sentences) and

records on the State witnesses who testified against him at

trial.'

While the State generally asserted below that Mr.

Jackson's requests imposed an "unduly burdensome " procedure,

(Tab 3 , Exh. H , at 5; Exh. I, at 4), the State's mere

allegations of inconvenience and expense are insufficient to

form a basis for finding that the discovery request is

oppressive or burdensome . Ocwen, 872 So. 2d at 815.

Nevertheless, the Alabama Court of Criminal Appeals

concluded -- without explanation or evidentiary support in the

record - that " the consequences of this request are enormous."

Ex parte State , 2005 WL 628485 , at *5 n . 5. In reality, the

actual number of records produced would be fairly limited, and

certainly does not come close to the type ' of request that

Alabama courts have found to be unduly burdensome in other

s Additionally , Mr. Jackson requested information which

is already a part of the trial record : jury questionnaires

and the bullet and shell casing introduced into evidence

against him at trial.

9

4

cases.6 Sep wen, 872 So. 2d at 815-16 (trial court's order

requiring party to produce list of every prior consumer-

protection or financing--agency complaint and every lawsuit

filed during prior five years not unduly burdensome).

Nor did the State ever meet its burden of asserting a

claim of privilege as a basis for arguing that Judge McCooey

should deny or otherwise limit the discovery.' (See Tab 3

Exh. K). While the DHR asserted a privilege for the first

- 3time in an amicus brief in the Alabama Court-of Crirnina

6 The limited nature of the discovery order in this case

pales in comparison to orders this Court has found to be

unduly burdensome . Ex arte L)il lard Dep't Sto res , Inc., 879

So. 2d 1134, 1137 (Ala. 2003) (in civil suit for false

imprisonment and intentional infliction of emotional distress,

plaintiffs' request for discovery of all actions filed against

Dillard; all claims that did not result in actions; all

complaints and charges made by customers about mistreatment;

all complaints about employee mistreatment and all records

regarding employees who had been accused of injuring, accusing

or detaining customers or other employees in more than 100

department stores nationwide found to be oppressive or

burdensome , as many were "irrelevant to this case" ); Ex paste

Compass Bank , 686 So . 2d 1135 (Ala. 1996 ) ( discovery of every

Compass Bank file involving variable annuity, which required

the production of at least 21,246 customer files and 35,000

transactions unduly burdensome).

7 See Ex carte Norfolk Southern Rye Co., No. 1030476, 2004

WL 1950297, at *1 (Ala. Sept. 30, 2004) ("The burden rests on

the petitioner to demonstrate that its petition presents such

an exceptional case - that is, one in which an appeal is not

an adequate remedy.") (citation omitted).

10

Appeals , the trial court was not presented with such an

assertion, and thus could not be the basis for mandamus

relief . See Ex carte Dumas, 778 So. 2d 798, 801 (Ala. 2000)

(given the broad discretion vested in trial court with regard

to discovery , and given petitioner's failure to articulate

basis for protective order, even when specifically asked by

trial court , no abuse of discretion in trial court's failing

to restrict discovery ); see--also Ex rte McNair , 653 So. 2d

353, 360 (Ala. 1994 ) ( refusing to consider evidence on appeal

that was not presented to trial court).

In this case, the State ' s right to appeal pursuant to ALA.

R. CRIM. P. 32.10 is a more than adequate remedy to review the

trial court ' s ruling in this case. See. e.g ., Ex carte

Hutcher son, 847 So . 2d 386, 388 (Ala. 2002) . If and when

Judge McCooey rules against the State - either by finding that

the claims upon which discovery was granted are not

procedurally barred , or by granting relief-to Mr. Jackson on

the merits of claims for which the State contends that he has

not shown good cause - the error can be remedied on appeal.'

' Such a procedure is consistent with the Rules of

Criminal Procedure , which mandate that "once a ground of

preclusion has been pleaded, the petitioner shall have the

burden of disproving its existence by a preponderance of theevidence." ALA. R. CRIM . P. 32.3 ; see also Ex carte Pierce, 851

11

I

As such, the Alabama Court of Criminal Appeals erred in

issuing the writ of mandamus in this case.

ErredB . The Court of Criminal A sale-AlabamaGranting the Writ of Mandamus Because

The Trial Court-- Did Not Abuse its

Discretion As k n Has Shown "Good

Cause " for His Discovery Requests

In granting the State's petition for a writ of mandamus,

the Alabama Court of Criminal Appeals relied almost

So. 2d 606, 616 (Ala. 2000)(remanding for hearing on whether

claim of improper jury contact was procedurally barred where

record did not indicate whether "Pierce met his burden under

Rule 32.3 of disproving the existence of the ground of

preclusion by a preponderance of the evidence."). The trial

court's grant of discovery will afford Mr. Jackson the

opportunity, to which he is entitled, to disprove the claims

of procedural bar. See. e.g., DeBruce v. State, 890 So. 2d

1068, 1077 (Ala. Crim. App. 2003) (finding procedural bar

incorrectly applied by trial court where testimony at the

evidentiary hearing demonstrated that counsel did not learn of

information until five years after petitioner's trial);

McGahee v. State, 885 So. 2d 191, 203 (Ala. Crim. App. 2003)

(finding petitioner "sustained his burden of disproving

grounds of preclusion pleaded by the State" where evidence

demonstrated that trial counsel had no information about juror

misconduct and therefore could not have raiged claim at trial

or on appeal) . Should the trial court ultimately rule against

the State on these claims, the State can appeal to the Alabama

Court of Criminal Appeals for relief. See, e. g., State v.

Trussell, 880 So. 2d 1177 (Ala. Crim. App. 2003) (granting

state's appeal of circuit court's grant of postconviction

relief because circuit court did not have jurisdiction to

consider claim and claim was procedurally barred); State v.

Whitley, 665 So. 2d 998 (Ala. Crim. App. 1995) (on state's

appeal, reversing circuit court's grant of postconviction

relief on juror misconduct claim because claim wasprocedurally barred).

12

exclusively on one part of a casual comment made by Judge

McCooey at the hearing to conclude that she "failed to apply

the correct standard when evaluating Jackson ' s discovery

motions ." Ex parte State, 2005 WL 628485 , at *4. However, as

evidenced by both her order and statements , Judge McCooey's

decision to grant Mr. Jackson's discovery requests was based

on her finding that Mr. Jackson had established "good cause"

for the requested information. During the hearing, the judge

stated the following with regard to Mr. Jackson's discovery

requests:

But I think they're entitled to it. I mean, I read

their amended petition. They' re making some

arguments about some things that they think - I

think they're entitled to it. They get it. I'm

going to give it to them.

(Tab 3 , Exh. K, at 28). Further, the trial court stated in

its written order that its decision was based on the

"arguments from counsel for Petitioner Shonelle Jackson and

counsel for the State of Alabama and -upon review and

consideration of the motions and the responsive pleadings, as

well as Petitioner ' s amended petition, the State's answer, the

trial transcript and pleadings, . . . ." (Tab 3, Exh. J).

Moreover ., the opinion contravenes this Court ' s precedent

that trial judges are presumed to know the law and to follow

13

it. Ex cart S lat on, 680 So . 2d 909, 924 (Ala . 1996) (in

capital trial , no error where trial court did not state in

sentencing order that he considered all of the mitigating

evidence presented at trial as ""[ t]rial judges are presumed to

follow their own instructions , and they are presumed to know

the law and to follow it in making their decisions.")

Moreover, Mr. Jackson has shown "good cause" for his

discovery requests and the trial court did not abuse its

discretion by issuing these discovery orders . See Ex par.te

Land , 775 So . 2d 847 , 852 (Ala. 2000 ). In assessing whether

"good cause " has been demonstrated , a trial court should

consider the issues presented in the petition , the scope of

the discovery , the length of time between the conviction and

postconviction proceeding , the burden of discovery on the

State and the availability of evidence through other sources.

Ex arte Mack, No. CR-02-0431 , 2003 WL 1950008 , at *3 (Ala.

Crim . App. Apr. 25, 2003).

An evaluation of these criteria in this case makes clear

that "good cause" exists for Mr. Jackson's discovery requests.

First , as shown below , all of the requested discovery is

specifically related to facially valid legal claims contained

in Mr . Jackson ' s Rule 32 petition . With regard to the length

14

6

of time criteria, Mr. Jackson has filed a Rule 32 petition

within the prescribed statute of limitations, and is therefore

not abusing the Rule 32 process. Finally, there is no other

way for Mr. Jackson to obtain this discovery (Mr. Jackson

attempted to obtain discovery without the State's involvement

where possible), and all of the requested items are necessary

for Mr. Jackson to prove his claims. See Land, 775 So. 2d at

855 (without requested documents, it would be "practically

impossible for him to show that he suffered prejudice"). For

these reasons, Mr. Jackson has shown good cause for the

discovery, and the trial court's discovery order should stand.

1. Prosecution Files

The Alabama Court of Criminal Appeals concluded that the

trial court abused its discretion in granting discovery of the

following: files related to the prosecution of Mr. Jackson's

co-defendants, or any prior prosecutions related to Mr.

Jackson or his co-defendants; the bullet and shell casing

introduced at trial;9 records related to witnesses at his

9 The bullet and shell casing are simply a part of the

record in this case, and Mr. Jackson is therefore entitled to

access these items. Indeed the only reason that a court order

is necessary for these items, which were admitted at Mr.

Jackson's trial and made part of the record, is because these

items are in the possession of the Montgomery County Clerk's

office. The lower court's finding that Mr. Jackson should not

15

trial; visitor logs from the Montgomery County Detention

Facility and juror questionnaires and materials."

a. Files Relating the C07-Defendants and prior Prosecutions

be permitted to access these items should not be indulged by

this Court.

10 To the extent that the Alabama Court of Criminal

Appeals relied on the trial court's March 1, 2004, order,

finding the Brady and juror misconduct claims to be

procedurally barred pursuant to Rule 32.2(a)(3), (5) as a

basis for concluding that Mr. Jackson has not shown "good

cause" for his discovery requests, the lower court misread the

record. While the trial court did find that some of the

claims in Mr. Jackson's original petition were procedurally

barred, it specifically reserved a ruling on whether the

claims contained in his amended petition were procedurally

barred. Indeed, in its mandamus petition to the Alabama Court

of Criminal Appeals, the State of Alabama contended that Judge

McCooey "abused [her] discretion by granting Jackson's motions

for discovery before resolving the State's assertions of

procedural bars and insufficient pleading." (Tab 3, at 2).

For this reason, the lower court's reliance on the trial

court's ruling of March 1, 2004, dismissing claims in his

original petition, as a basis for concluding that Mr. Jackson

had failed to show "good cause" for discovery of items related

to claims in the amended petition, was in error. Ex Parte

State (In re: Shone Jackson v. Stat of Alabama), No.

CR-04-0096, 2005 WL 628485, at *5 (Ala. Crim. App. Mar. 18,

2005) (Tab 1).

Moreover, as argued in the trial court, both Brady claims

see, e .g., Martin v. State, 839 So. 2d 665 (Ala. Crim. App.

2001); Hamilton v. State, 677 So. 2d 1254 (Ala. Crim. App.

1995); Jefferson v. State, 645 So. 2d 313 (Ala. Crim. App.

1994), and juror misconduct claims are cognizable in Rule 32

proceedings. See, e.g., Exparte Dobyne, 805 So. 2d 763 (Ala.

2001); DeBruce v . State, 890 So . 2d 1068 (Ala. Crim. App.

2003) .

16

A

The Alabama Court of Criminal Appeals concluded that Mr.

Jackson is not entitled to the District Attorney's files of

his three co-defendants, which Mr. Jackson contends are

necessary to prove that the State entered into deals with the

co-defendants in exchange for their testimony," because "all

three codefendants testified [at trial] that they had not been

offered deals in exchange for their testimony," and because

the record reveals that the "circuit court gave the State

seven days to disclose this information," Mr. Jackson must

have "had access to this information before trial." Ex parte

State, 2005 WL 628485, at *5.

The lower court's finding belies a fundamental

misunderstanding of the nature of a claim pursuant to Brady v.

Maryland, 373 U.S. 83 (1969), and Giglio v. United States, 405

U.S. 150 (1972). First, it is true that prior to trial, Mr.

Jackson's trial counsel did file a request for discovery

11 Additionally, evidence contained in the District

Attorney's files related to prior prosecutions of Mr. Jackson

is necessary for Mr. Jackson to prove that his trial counsel

were ineffective for failing to challenge the underlying

convictions which formed the basis for the aggravating

circumstance against Mr. Jackson that "the capital offense was

committed by a.person under sentence of imprisonment." (Tab 3,

Exh. A, at 16).

17

pursuant to Brady v. Maryland, (C. 20 ),12 and a motion to

require the disclosure of deals and inducements, both of which

were granted by the trial court. (C. 50.) However, because

the State concealed this evidence, Mr. Jackson simply did not

have access to it at trial. See Banks v. Dretke, 540 U.S.

668, 693 (2004)(where State asserted on eve of trial that it

would disclose all Brady material, "Banks cannot be faulted

for relying on that representation"). The very nature of the

claim - the State's failure to turn it over - implicitly

rejects such a finding.

More critically, this finding does not contemplate proof

that Mr. Jackson may offer at an evidentiary hearing, i.e.,

testimony from a co-defendant that he had entered into a deal

in exchange for his testimony, and lied about this fact at

trial. See NaDue v. Illinois, 360 U.S. 264 (1959) (State's

presentation of false testimony violated defendant's due

process rights) ; Hamilton y_. _State, 677 So. 2d 1254 (Ala.

Crim. App. 1995) (postconviction relief granted where State

presented perjured testimony and suppressed exculpatory

evidence). Because this finding goes to the merits of the

12 This is a cite to the original trial record. As thelower court noted, this Court may take judicial notice of itsown records . Ex parte State, 2005 WL 628485 , at *5 n.4.

18

claim and not to whether Mr. Jackson has satisfied the

requisite pleading requirements forming the basis of his

discovery requests , this finding is erroneous.

Mr. Jackson has shown "good cause " for these records. He

contends that the State suppressed evidence at his trial,

including evidence of deals entered into with the co-

defendants in exchange for their testimony . Evidence of these

deals is likely contained in the District Attorney's file for

the prosecution of each of the co -defendants, and/or files on

prior prosecutions of these individuals ( for example , evidence

that a deal with one of the co-defendant resulted in dismissal

of or reduction of charges in a pending prosecution) Without

these files , Mr. Jackson will be unable to prove his

allegations that the District Attorney suppressed this

evidence , and will be prevented from succeeding on his claim.

See Land, 775 So. 2d at 8 55 (without requested documents, it

would be "practically impossible for him-'to show that he

suffered prejudice").

b. Jail Visitor Sign-In Sheets

With regard to Mr. Jackson's request for the visitor

sign - in sheets from the Montgomery County Detention Facility

- which Mr. Jackson contends will corroborate his allegations

19

of suppressed deals with the co-defendants with a record of

the times and dates that members of the District Attorney's

office visited with them prior to trial - the Alabama Court of

Criminal Appeals concluded that "this was information within

Jackson's own knowledge." Ex r State, 2005 WL 628485, at

*9. There is nothing in the record to suggest that Mr.

Jackson had any knowledge of who was visiting his co-

defendants while the four of them were incarcerated at the

jail. More critically, such documentary evidence is critical

to Mr. Jackson's ability to prove this claim.

Mr. Jackson has shown "good cause" for these files,

because without them, Mr. Jackson will be unable to prove his

allegations that the District Attorney suppressed this

evidence. Land, 775 So. 2d at 852.

c. Documents Relating State Witneas-es

The trial court additionally granted Mr. Jackson access

to documents relating to state witnesses at"trial, including

criminal and mental health records. In his Rule 32 petition,

Mr. Jackson alleged that the State has suppressed a number of

items, including information obtained from A.C. Porterfield,

a witness at his trial. The requested records will likely

contain the suppressed information, or lead to the discovery

20

of such information. Without access to records and documents

related to any state witnesses at Mr. Jackson's trial, Mr.

Jackson will be unable to prove his claim. See McMillian v.

State, 616 So. 2d 933, 948 (Ala. Crim. App. 1993) (capital

conviction and death sentence reversed in state postconviction

where petitioner presented evidence about a trial witness

found in Taylor Hardin medical records during Rule 32

proceedings).

The Alabama Court of Criminal Appeals found that the

trial court abused its discretion in granting discovery of

these records because its order runs contrary to the law

regarding third party records. First, while a criminal

defendant is not always entitled to criminal records of state

witnesses, Alabama court have recognized that the trial court

does not abuse its discretion by granting such discovery. See

Hardy v. State, 804 So. 2d 247, 285-86 (Ala. Crim. App. 1999),

aff'd, Ex parte Hardy, 804 So. 2d 298 (Ala. 2000) (where trial

court ordered disclosure of any criminal records of all lay

witnesses, decision was "within the trial court's discretion"

and "in keeping with the purpose and spirit of the holding of

the Alabama Supreme Court in Ex parte Monk").

Second, with regard to the mental health and juvenile

21

records of these witnesses, both state and federal law clearly

hold that evidentiary privileges must give way when they come

into conflict with constitutional rights. Davis v. Alaska,

415 U.S. 308 (1974) (Sixth Amendment right to confrontation

paramount to policy of protecting juvenile offender) ; Exxaarrte

Lynn, 477 So. 2d 1385 (Ala. 1985) (defendant's right to cross

examination unduly hampered by trial court's refusal to allow

questioning of state witness about juvenile record).

7--rCritically, in this case, while the lower court chastised

Judge McCooey for failing to conduct an in camera inspection

of the requested documents , Ex parte State, 2005 WL 628485, at

*8, neither the State nor any other state agency challenged

the discovery requests on the basis of privilege in the trial

court and thus, the trial court had no opportunity to fashion

a remedy for protecting privileged information (i.e., in

camera inspection, protective order).

d. Physical Evidence Introduced into

the Record at Trial

In rejecting Mr. Jackson's discovery request for access

to the bullet and shell casing introduced into evidence at

trial - which he contends are necessary to prove his claim

that trial counsel were ineffective for failing to challenge

the State's ballistics evidence and obtain the assistance of

22

a firearm and projectile in order to establish that Mr.

Jackson was not responsible for Mr. Moore ' s death ( Tab 3, Exh.

A., at 11 - 12, 24 ) - the Alabama Court of Criminal Appeals

concluded that Mr. Jackson can never establish that his

counsel were ineffective for these failings because testimony

elicited on cross-examination of the State ' s expert at trial

suggested that the bullet could have come from another gun. Ex

parte State , 2005 WL 628485, at *9.

However, the inquiry at this stage is not whether Mr.

Jackson wins on the merits of his claims, but rather whether

he has alleged facts , that if true, entitle him to relief.

Had an expert been retained by trial counsel to test the

bullets, and affirmatively testified to the jury that the gun

that Antonio Barnes or Christopher Rudolph was carrying likely

shot the projectile that caused the victim ' s death , there is

a reasonable probability that the outcome of the trial would

have been different . Mr. Jackson has thia 's alleged facts,

which, if proven true, would entitle him to relief . Land, 775

So. 2d at 852. That the State , and now the Alabama Court of

Criminal Appeals , believes that Mr. Jackson may not ultimately

succeed on the merits is not relevant to whether he has

sufficiently pled the claim and shown "good cause" for

23

discovery. Without access to the bullet and shell casing - in

order that they may be evaluated and independently tested -

Mr. Jackson will be unable to prove that trial counsel were

ineffective in this regard.

e. Juror estio it s and Materials

In his Rule 32 petition, Mr. Jackson alleged that his

rights to the use of peremptory challenges and to a fair and

impartial jury were violated when several jurors failed to

respond truthfully to multiple questions on voir dire. If

true, these allegations entitle Mr. Jackson to relief. Ex

part O'Leary, 438 So.2d 1372, 1375 (Ala. 1983) (conviction

reversed in postconviction where jury foreperson failed to

reveal, in response to questioning on voir dire, that he had

previously served as a foreperson on a criminal jury).

Without the juror questionnaires, Mr. Jackson will be unable

to prove his claim of juror misconduct, and he has therefore

articulated "good cause" for these questionnaires.

Additionally, Mr. Jackson requested documents relating to

the State's use of peremptory challenges during petitioner's

trial, documents relating to the use of racial criteria in the

jury selection process in criminal cases in Montgomery County,

and documents relating to any communication between the State

24

and any petit jury member, so that he may be able to prove

that trial counsel failed to adequately challenge the

prosecutor's discriminatory use of peremptory strikes in

violation of Batson v. Kentucky, 476 U.S. 79 (1986) and J.E.B.

v. Alabama, 511 U.S. 127 (1994). Montgomery County has a

documented history of discriminatory practices in jury

selection. See Sims v . State, 587 So . 2d 1271, 1277 (Ala.

Crim. App. 1991) ("In considering this issue, we have taken

note of the fact that the State in this case does not write on

a clean slate. A number of cases prosecuted in Montgomery

County have been reversed because of a Batson violation.")

Thus, Mr. Jackson has demonstrated "good cause" for

getting access to the jury materials in this case. See Land,

775 So. 2d at 852 ("to obtain discovery, a petitioner must

allege facts that, if proved, would entitle him to relief.").

2. Records of Louis Taylor13

13 The State additionally objected below to discovery of

the mental health records of Marilyn Jackson (Shonelle

Jackson's mother) because the request was overly broad, it

could be fulfilled by Ms. Jackson, and the records were

irrelevant to Mr. Jackson's claims. (Tab 3, Exh. I, at 9).

In its petition for mandamus in the Alabama Court of Criminal

Appeals, the State contended that these records were

privileged. (Tab 3, at 26) . This could not form the basis for

this Court's mandamus review. First, the trial court never

had the opportunity to address the issue of privilege because

it was never asserted in the trial court, and therefore should

25

The Alabama Court of Criminal Appeals agreed with the

State that the trial court abused its discretion in granting

discovery of Louis Taylor's records because "this information

was available through many other sources and [] the requested

records are not necessary to support this claim." Ex ar

State , 2005 WL 628485 , at *10. This is simply an insufficient

basis for finding that the trial court abused its discretion

in granting discovery of these records.

First, it is irrelevant whether the Alabama Court of

Criminal Appeals or the State can suggest a different method

by which Mr. Jackson can prove his claims . Because the State

is not conceding the facts related to this part of Mr.

Jackson's ineffectiveness claim," it is inappropriate for the

State or the lower court to dictate how it believes Mr.

Jackson should ultimately prove the truth of his allegations.

More importantly, the Court of Criminal Appeals' finding is

unsupported by law; there is no rule or c.se that suggests

that a court can deny a Rule 32 petitioner's discovery request

not be the basis for a writ of mandamus. Ex parte T.Q., No.

1021861, 2004 WL 2201931, at *3 (Ala. Oct. 1, 2004) ("our

review is limited to those facts that were before the trial

court") . Second, the issue of privilege is irrelevant in this

case , because Ms. Jackson has signed a release of her records.

14 (See Tab 3 , Pet. Exh. B, at 54)("This claim is

denied.").

26

A

simply because a lawyer for the State (or a member of the

court) thinks there are other ways to prove the claim.

In addition, as Alabama courts have recognized, Wiggins

v. Smith, 539 U.S. 510 (2003), mandates that in a capital

case, trial counsel "has a duty to conduct a reasonable

investigation including an investigation of the defendant's

background for possible mitigating evidence." Harris v_.

State, No. CR-01-1748, 2004 WL 2418073, at *42 (Ala. Crim.

App. Oct. 29, 2004) (in jury override case, reversing for new

penalty phase where trial counsel found ineffective for

failing to investigate and present mitigating evidence). In

order to prove that counsel at Mr. Jackson's trial were

ineffective, he must show that they failed to comply with the

requirements of Wiggins, and that Mr. Jackson was prejudiced

by this failure. Mr. Jackson's father's records are necessary

not only to prove the claims in the petition, but also to

discover additional mitigation evidence that has yet to have

been uncovered. See ABA Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases,

Commentary to § 10.7 n.215 (Revised Ed. Feb. 2003) ("Records

may document events that neither the client nor family members

remember."); see also Williams v, Taylor, 529 U.S. 362, 395

27

.r r

n.19 (2000) (relying on social worker's descriptions of the

Williams home that could not have been provided by the client,

who was too young, and the adult family members, who were too

intoxicated, to recall the scene); Lewis y. Dretke, 355 F.3d

364, 368-69 (5th Cir. 2003) (in finding that counsel was

ineffective for failing to adduce evidence of petitioner's

abusive childhood, court relied in part on corroborating

evidence in the form of medical records and other record

evidence to support testimony of family witnesses); Van Dohlen

v. State, 602 S.E.2d 738, 741 (S.C. 2004) (finding counsel

ineffective for failing to investigate psychiatric evidence,

including "medical records of Petitioner's father," for

presentation at penalty phase of capital trial).

Mr. Jackson's request is not unduly burdensome. Mr.

Jackson has alleged that his father has had interaction with

all of the identified agencies. As this Court recognized in

Land: "if these facilities have no documents that relate to

Land's claims, they can simply say so. Merely determining

whether such documents exist would not unduly burden the

State." Land, 775 So. 2d at 855.

Finally, by suggesting that Mr. Jackson is entitled to

prove the facts related to his father (albeit by "other

28

available means"), the lower court has concluded that the

information Mr. Jackson is seeking is relevant to his claims,

and thus that Mr. Jackson has shown "good cause" for these

records.

3. Records of the Department of Human

Resources and the Alabama Board of Pardons

and Paroles

In his motion for discovery, Mr. Jackson additionally

requested records from the Department of Human Resources

("DHR") and the Alabama Board of Pardons and Paroles.

With regard to the DHR records, the Alabama Court of

Criminal Appeals15 credited the amicus brief filed by DHR and

concluded that the trial court abused its discretion by

failing to grant discovery of these records without first

holding an in camera hearing. Ex rte State, 2005 WL 628485,

at *10. Similarly, the lower court found that the trial

court's order, permitting Mr. Jackson access to records of the

Alabama Board of Pardons and Paroles violates the Alabama Code

151t is worth noting that the State conceded in the trial

court that Mr. Jackson was entitled to these records, (see Tab

3, Exh. H, at 11) ("The State has no objection to this Court

granting both Jackson and the State access to any and all

institutional records pertaining to Shonelle Andre Jackson in

the possession of the Alabama Department of Human

Resources."), and at no point did the State raise an objection

to the discovery of these records in either of the courts

below.

29

4

because [t]he records maintained by the Board are not subject

to inspection." Id.

However, because objections on this basis were never

brought before Judge McCooey, she did not have the opportunity

to fashion an appropriate remedy with regard to these records.

II. CONCLUSION

The State of Alabama failed to demonstrate that this is

an exceptional case warranting mandamus review, and thus the

Alabama Court of Criminal Appeals erred in granting the

State's petition for a writ of mandamus to Judge McCooey.

For all of the reasons set forth in these pleadings, Mr.

Jackson respectfully requests that this Court direct the

Alabama Court of Criminal Appeals to vacate its order setting

aside Judge McCooey's orders granting discovery in this case.

Respectfully-submitted,

Br ' Stevenson

Angela SetzerEqual Justice Initiative of Alabama122 Commerce StreetMontgomery, AL 36104PH: (334) 269-1803FAX: (334) 269-1806

Counsel for Mr. Jackson

Dated: April 1', 2005

30


Pursuant to Rule 21(a) of the Alabama Rules of Appellate

Procedure, I certify that on April 1, 2005, I served a copy of

the attached pleading by hand-delivery to:

Alabama Court of Criminal Appeals

Judicial Building300 Dexter AvenueP.O. Box 301555Montgomery, AL 36130-1555

and by first class mail, postage pre-paid, and properly

addressed to:

Honorable Tracy S. McCooeyCircuit JudgeMontgomery County Circuit Court

251 S. Lawrence Street

Montgomery , AL 36104

Troy King

James R. Houts

Jeremy McIntire

Office of the Attorney General

Capital Litigation Division

Alabama State House

11 South Union StreetMontgomery, AL 36130

Sharon Ficquette

Assistance Attorney General

Department of Human Resources

Alabama Department of Human Resources

Office of General Counsel

50 N. Ripley Street

Montgomery, Al 36130

31

11

11111111I

NO.



(In re: Ex parte State of Alabama

(In re : Shonelle Andre Jackson,Petitioner

V.


Alabama Court of CriminalAppeals No . CR-04-0096

Montgomery County CircuitCourt No. CC -97-2300.60

APR - 1 2005

FILED

APR -1 2005

(CLERKALA COURT CRIMINAL APPEALS

PETITIONER ' S APPENDIX TOPETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OFCRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY,


VOLUME I OF III

April 1, 2005

Bryan A. StevensonAngela L. Setzer

Equal Justice Initiative ofAlabama

122 Commerce StreetMontgomery , AL 36104Ph: (334 ) 269-1803Fax: (334 ) 269-1806

Counsel for Shone lie Jackson

111

NO.



(In re : Ex parts State of Alabama


Petitioner

V.

State of Alabama,

Respondent))


1111

111

Montgomery County CircuitCourt No . CC-97-2300.60

PETITIONER ' S APPENDIX TO


CRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY,CIRCUIT JUDGE , FIFTEENTH JUDICIAL CIRCUIT

VOLUME I OF III


Equal Justice Initiative ofAlabama122 Commerce Street

Montgomery , AL 36104Ph: (334) 269-1803

Fax: (334 ) 269-1806

April 1, 2005 Counsel for Shonelle Jackson

IINDEX TO APPENDIX OF EUIRITS

1

TAB 1 Opinion of the Alabama Court of Criminal Appealsdated March 18, 2005

TAB 2 Order of Honorable Judge Tracy S. McCooey datedMarch 23, 2005

TAB 3 State of Alabama's Petition for Writ of Mandamus toHonorable Tracy S. McCooey, Circuit Judge, FifteenthJudicial Circuit; Volumes I, II of Exhibits

Exhibit A Shonelle Jackson's Amended Rule 32Petition

111

1

111tI

Exhibit B State' s Answer to Shonelle Jackson'sAmended Rule 32 Petition

Exhibit C State's Motion to Dismiss ProcedurallyBarred Claims

Exhibit D State's Motion to DismissInsufficiently Plead Claims

Exhibit E State's Motion to Dismiss ClaimsPursuant to Rule 32.7(d)

Exhibit F Mr. Jackson's Motion for Discovery ofInstitutional Records, Files, andInformation Necessary to a Fair Rule32 Evidentiary Hearing

Exhibit G Mr. Jackson's Motion for Discovery ofProsecution Files, Records andInformation Necessary to a Fair Rule

32 Evidentiary Hearing

Exhibit H State's Response to Mr. Jackson'sMotion for Discovery of InstitutionalRecords, Files, and InformationNecessary to a Fair Rule 32Evidentiary Hearing

1

11

Exhibit I State 's Response to Mr . Jackson'sMotion for Discovery of ProsecutionFiles, Records , and InformationNecessary to a Fair Rule 32Evidentiary Hearing

Exhibit J Mr. Jackson's Response to the State'sOpposition to his Discovery Requests

1 Exhibit K Transcript of the Hearing Held onOctober 13, 2004 in the MontgomeryCounty Circuit Court on the Parties'Motions

Exhibit L Circuit Court's Order of October 13,2004

1

1

1

111

TAB 4 Shonelle Jackson's Answer in Opposition to the Stateof Alabama's Petition for Writ of Mandamus toHonorable Tracy S. McCooey, Circuit Judge, FifteenthJudicial Circuit

Exhibit A Petitioner's Response to the State'sMotions to Dismiss

TAB 5 Brief of Amicus Curiae of the Alabama Department toHuman Resources

TAB 6 Petitioner's Objection to this Court's Signing ofthe State's Proposed Orders Without Modification


2

FOR EDUCATIONAL USE ONLY Page 12005 WL 6284851 --- So.2d --

I

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1

I

(Cite as: 2005 WL 628485 (Ala.Crim.App.))

Only the Westlaw citation is currently available.

NOT YET RELEASED FOR PUBLICATION.

Court of Criminal Appeals of Alabama.Ex parte STATE of Alabama(In re Shonelle Andre Jackson

V.State of Alabama).

CR-04-0096.

March 18, 2005.

Background : Following appellate affirmance, 836So.2d 979, of his capital murder conviction andsentence of death, petitioner sought post-convictionrelief, and filed motions for discovery in connectiontherewith. The Circuit Court, Montgomery County,CC-97-2300.60, Traci! S. _McCooev, J., grantedmotions. State petitioned for writ of mandamusdirecting vacation of discovery orders.

Holdings: The Court of Criminal Appeals held that:post-conviction court abused its discretion by

ordering discovery without first determining whetherpetitioner had shown good cause therefor;

M post-conviction court improperly granteddiscovery with respect to claims it had previously heldto be procedurally barred;

0 mental health records of witnesses for state wereprotected by psychotherapist-patient privilege;

post-conviction court improperly granted petitionerunlimited discovery of juvenile records of all witnesseswithout in camera examination;

petitioner was unable to demonstrate good causefor discovery of bullet recovered from victim's bodyand shell casing found in area where victim was killed;()post-conviction court improperly granted petitionerdiscovery of records containing information availablethrough other, less intrusive sources; and

post-conviction court abused its discretion inallowing petitioner full access to files maintained by

state Department of Human Resources (DHR).Petition granted; writ issued.

Shaw. J., concurred in part and in result, with opinion.

W Criminal Law €0

IlOkOk.When ascertaining whether discovery is warranted in apost-conviction proceeding, the court must firstdetermine whether the petitioner has shown good causefor disclosure of the requested materials. RulesCrim.Proc., Rule 32. 1 et seq.

M Criminal Law 4 C=OI I0k0 k.Post-conviction court abused its discretion, by orderingdiscovery without first determining whether petitionerhad shown good cause for discovery; court's ruling wasbased upon its belief that there was nothing "wrong"with letting petitioner have extensive discovery in acapital case . Rules Crim.Proc., Rule 32. 1 et seq.

IM Criminal Law C'0I lOkO k.Post-conviction court improperly granted petitionerdiscovery of files of district attorney's office related topetitioner's three co-defendants on capital-murdercharges, where post-conviction court had already ruledthat claims petitioner sought files to support, namely,that his co-defendant had entered into undisclosed"deals or agreements" with state, were procedurallybarred, co-defendants had testified at trial that they hadnot been offered any deals in exchange for theirtestimony, and petitioner's trial counsel sought andobtained disclosure of any "deals or inducements"offered any witnesses prior to trial. Rules Crim.Proc.,Rule 32.1 et seq.

L41 Criminal Law C'0I iOkO k.Court of Criminal Appeals may take judicial notice ofits own records.

C 2005 Thomson/West . No Claim to Orig . U.S. Govt. Works.

A

1

11

1

1

1I

FOR EDUCATIONAL USE ONLY Page 2

(Cite as : 2005 WL 628485 (Ala.Crim.App.))

2005 WL 628485--- So.2d ---

LSJ Criminal Law 0=0110k0 k.Post-conviction court improperly granted petitionerdiscovery of records with respect to all witnesses whotestified for state at petitioner's capital murder trial,where post-conviction court had already ruled thatclaims petitioner sought records to support wereprocedurally barred. Rules Crim.Proc.. Rule 32.1 etseq.

161 Criminal Law C'0I lOkO k.When requested documents relate to a post-convictionclaim that is procedurally barred, there can be noshowing of good cause for the disclosure of therequested information.

[ j Criminal Law € 01 l 0k0 k.Defendant is not entitled to discover the criminalrecords of a state witness.

181 Criminal Law C=011 00k0 k.Mental health records of witnesses for state in capitalmurder prosecution were protected bypsychotherapist-patient privilege and were not subjectto discovery by petitioner in post-convictionproceedings. Rule 503, Ala.R.Evid; Rules Crim.Proc..Rule 32.1 et seq.

j91 Criminal Law C'01 I Ok0 k.Post-conviction court improperly granted petitionerunlimited discovery of juvenile records of all witnessesin petitioner's capital murder prosecution, especiallywhere post-conviction court conducted no in cameraexamination of such records. Code 1975. & 12-15-100;Rules Crim.Proc., Rule 32.1 et seq.

W01 Criminal Law C=0I lOkO k.Defendant is not entitled to unfettered access toprivileged documents.

1111 Criminal Law C0110k0 k. ,

Post-conviction court improperly granted petitionerdiscovery of juror questionnaires and other documentsrelated to jury-selection process, where post -convictioncourt had already ruled that petitioner's claim of jurormisconduct was procedurally barred, and claims relatedto alleged discrimination during jury selection processhad been addressed and finally determined inpetitioner's direct appeal. Rule 32.2.2(ax3) and (a)(5),Ala.RCrim.P.

L L21 Criminal Law €0I lOk0 k.Post-conviction petitioner was unable to demonstrategood cause for discovery of bullet recovered frommurder victim's body and shell casing found in areawhere victim was killed, where such items wereintroduced into evidence at petitioner's trial, andpost-conviction claim petitioner sought to advancethrough use thereof was raised through testimony ofstate's expert at trial. Rules Crim.Proc.. Rule 32.1 etseq.

[131 Criminal Law C0ll_Ok0k.

Post-conviction court improperly granted petitionerdiscovery of jail visitor sign-in sheets showing whovisited petitioner and his three co-defendants in capitalmurder prosecution while they were in jail awaitingtrial, where post-conviction court had already ruled thatclaims petitioner sought files to support, namely, thathis co-defendant had entered into undisclosed "deals oragreements" with state, were procedurally barred. RulesCrim.Proc.. Rule 32. 1 et seq.

L1 Criminal Law C=:;;10I I0k0 k.Post-conviction petitioner was unable to demonstrategood cause for discovery of his own jail visitor sign-insheets, where information contained therein was withinpetitioner's own knowledge . Rules Crim.Proc., Rule

J et seq.

[151 Criminal Law C€0I I0k0 k.Post-conviction court improperly granted petitionerdiscovery of records of numerous agencies with respectto petitioner's father, where information contained

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therein, alleged by petitioner to be relevant inmitigation, was available through many other, lessintrusive sources.

jj6j Criminal Law €0I lOkO k.Post-conviction court abused its discretion in allowingpetitioner full access to files maintained by stateDepartment of Human Resources (DHR) with respectto petitioner's father, especially where petitioner did notseek, and post-conviction court did not propose orconduct, in camera examination of such records, andwhere order granting petitioner access to DHR filesdirected DHR to violate its statutory obligation to treatsuch filed as privileged and confidential . 38-2-1 ets m., Ala.Code 1975 ; Code 1975, 15-22-36

j><. Criminal Law k=01 lOkO k.Petitioner does not have an unlimited and unqualifiedright to discovery in a postconviction proceeding.

1i 1 Courts O106k0 k.Court of Criminal Appeals has no authority to adoptprocedural rules of court; the sole responsibility fordoing so rests with the state Supreme Court. Ala. Coast.of 1901, Amend No. 328, § 6.11.Petition for Writ of Mandamus.

Montgomery Circuit Court (CC-97-2300.60).

PER CURIAM.

*1 The State ofAlabama filed this petition for a writ ofmandamus directing Judge Tracy S. McCooey to vacatethe discovery orders relating to Shonelle AndreJackson's petition for postconviction relief in which heattacked his capital -murder conviction and sentence ofdeath. Jackson was convicted of murdering LefrickMoore during the course of a robbery and wassentenced to death . Jackson's conviction and deathsentence were affirmed on direct appeal . See Jackson v.State, 836 So.2d 915 (Ala.Crim„Ann. 1999), affd, 836So 2d 979(Ala.2002).

In July 2003, Jackson filed a Rule 32, Ala.R.Crim.P.,

petition attacking his conviction and death sentence. Hefiled an amended petition in March 2004. Jackson thenfiled two lengthy discovery motions relating to his Rule32 petition. The State filed detailed objections to eachmotion. In October 2004, Judge McCooey held ahearing on the discovery motions ; after the hearing, shegranted the motions. The State then filed this mandamuspetition and a request that we stay all action in thecircuit court pending this Court's disposition of thisextraordinary petition. By order dated November 30,2004, we stayed all action in the lower court andallowed the respondents 21 days to answer theallegations contained in the mandamus petition . Jacksonhas filed an answer in this case and the Department ofHuman Resources ("DHR") has filed a brief as amicuscuriae.

The State asserts that Judge McCooey failed to findgood cause before she ordered discovery in thispostconviction proceeding, that she erred in orderingdiscovery on issues that had been held to beprocedurally barred, and that she exceeded the limitedscope of discovery by ordering discovery of allcriminal, mental-health, and correctional records of allwitnesses for the State. It cites numerous other groundsin support of the issuance of this writ. ff1N 1

Jackson's first discovery motion requested theproduction of the following records: all records of theDepartment of Corrections ("DOC") related to LouisWendell Taylor, Jackson's father; all medical,psychological, psychiatric, or mental-health recordsrelated to Jackson and his father; all records of theAlabama Board of pardons and Paroles ("the Board")related to Jackson and his father; and all DHR recordsrelated to Jackson and his father.

The second discovery motion requested that the districtattorney turn over its entire case file related to thevictim 's murder and its case files related to theprosecution of Shonelle Andre Jackson and his threecodefendants-Antonio Barnes , Eric Williams, andChristopher Rudolph. The motion also requested "alldocuments related to all State witnesses who hadtestified at Jackson's trial ," including but not limited tothe witnesses' juvenile records, sentencing reports,arrest and conviction records, records of any

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law-enforcement authority, psychiatric , psychological,and mental-health records , and other records andreports . The motion further stated:

*2 "This request specifically applies to, but is notlimited to the following : the Montgomery CountyDistrict Attorney's Office , the City of MontgomeryPolice Department, the Montgomery County PoliceDepartment, the Montgomery County SheriffsDepartment, the Montgomery Fire Department, theMontgomery County Detention Facility, theMontgomery City Jail, the Montgomery ViolentCrime Task Force, the Alabama Department of YouthServices , the Alabama Department of Corrections,the Alabama Department of Forensic Sciences, theAlabama Department of Pardons and Paroles, theAlabama Department of Mental Health and MentalRetardation , specifically including Taylor HardinSecure Medical Facility and Bryce Hospital and theMontgomery County Juvenile, Family, District andCircuit Courts and the Montgomery MunicipalCourt."

The State filed detailed objections to each discoverymotion . Judge McCooey held a hearing , at which shestated:

"I hear what you're saying, but I mean, we're talkingabout, you know , someone 's life . Okay. So, I mean,the stakes are as high as they can get. You know,we're not talking about someone who is just going toprison for a number of years or whatever . I mean,we're-you know, the stakes are as high as they get.What is wrong with letting them have the discovery?If they are on a fishing expedition, then they're notgoing to be able to prove it anyway."(Emphasis added.) Judge McCooey then granted

unlimited discovery from all departments and agencieslisted in Jackson 's discovery motions.

L11 When ascertaining whether discovery is warrantedin a Rule 32 proceeding , the court must first determinewhether the Rule 32 petitioner has shown good causefor disclosure of the requested materials. As theAlabama Supreme Court stated in Ex parse Lan 775So.2d 847 (Ala.2000):

"We agree with the Court of Criminal Appeals that'good cause ' is the appropriate standard by which tojudge postconviction discovery motions . In fact,

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other courts have adopted a similar 'good-cause' or'good-reason' standard for the postconvictiondiscovery process. See [State vj Marshall, 1148 N.J.89,690 A.2d 1. cert. denied, 522 U. S. 850,118 S.Ct.140. 139 L.Ed.2d 88 (1997) ]; State v. Lewis. 656So.2d 124$ (Flamm; People ex rel. Daley v.F1tzerala! 123 111.2d 175, 121 111.Dec. 937, 526N.E.2d 131( 1988). As noted by the Illinois SupremeCourt, the good-cause standard guards againstpotential abuse of the postconviction discoveryprocess . See Fitz erg ald. supra, 123 I11.2d at 183. 121I1l.Dec . 937.526 N.Ed.2d at 135....

By adopting this standard , we are onlyrecognizing that a trial court , upon a petitioner'sshowing of good cause , may exercise its inherentauthority to order discovery in a proceeding forpostconviction relief. In addition, we caution thatpostconviction discovery does not provide apetitioner with a right to 'fish' through official filesand that it 'is not a device for investigating possibleclaims, but a means of vindicating actual claims.'People v. Gonzalez. 51 Cal.3d 1179. 1260, 800 P.2d1159, 1206, 275 Cal.Rntr. 729. 776 (1990), cert.denied, 502 U.S. 835. 112 S.Ct. 117,116 L.Ed.2d 85(1991). Instead, in order to obtain discovery, apetitioner must allege facts that, if proved, wouldentitle him to relief."

*3 775 So.2d at 852.

Though Alabama has had little opportunity to definewhat constitutes "good cause," in Ex parte Mack [Ms.CR-02-0341, April 25, 2003] --- So.2d ----, ----(Ala.Crim.App.2003), we quoted with approval anIllinois case the Alabama Supreme Court relied on inLand-People Y. Johnson. 205 111,26 381, 275 I11.Dec.820, 793 N.E.2d 591 (2002):

"'A trial court has inherent discretionary authority toorder discovery in post-conviction proceedings. SeePeg le ex red. Dal v. Fitz erald. 123 Ill.2d 175,183.121 I11.Dec. 937, 526 N.E.2d 131 (1988);People v. Rose. 48 I11.2d 300, 302.268 N.E.2d 700(1971). A court must exercise this authority withcaution, however, because a defendant may attemptto divert attention away from constitutional issueswhich escaped earlier review by requestingdiscovery.... Accordingly, the trial court should allowdiscovery only if the defendant has shown "good

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cause, " considering the issues presented in thepetition, the scope of the requested discovery, thelength of time between the conviction and thepost-conviction proceeding, the burden of discoveryon the State and on any witnesses, and theavailability of the evidence through other sources.Daley, 123 11.2d at 183 -84 121 I1l .Dec. 937 , 526N.E.2d 131: see People v. Fair 193 Ill.2d 256.264-65, 250 Ill.Dec . 284, 738 N .E.2d 500 (200).We will reverse a trial court 's denial of apost-conviction discovery request only for an abuse

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discretion.7,38 N.E,2d 500. A trial court d 6oes not abuse its2 se its

discretion in denying a discovery request whichranges beyond the limited scope of a post-convictionproceeding and amounts to a "fishing expedition." "'

--- So.2d at ---- (quoting Johnson. 205111 .2d at 408,275 I11.Dec. at 836-37.793 N.E.2d at 607-08). See alsoState v. Lewis. 656 So .2d 1248 (F1a.1994).

The New Jersey Supreme Court in State v. Marshall148 N.J. 89,690 A .2d 1 (1997), a case also cited withapproval by the Alabama Supreme Court in Land,stated:

"We anticipate that only in the unusual case will aPCR [postconviction relief] court invoke its inherentright to compel discovery . In most cases, apost-conviction petitioner will be fully informed ofthe documentary source of the errors that he brings tothe PCR court's attention . Moreover, we note thatPCR'is not a device for investigating possible claims,but a means for vindicating actual claims.' PewGonzalez. $1 Ca1,3d 1179, 275 Cal.Rptr. 729. 776,800 P.2d 1159, 1206 (1990), cert. denied, 502 U.S.835.,.112 S,Ct- 117, 116 L.Ed.2d85(1921).Thefiling of a petition for PCR is not a license to obtainunlimited information from the State, but a meansthrough which a defendant may demonstrate to areviewing court that he was convicted or sentenced inviolation of his rights...."Moreover, consistent with our prior discoveryjurisprudence, any PCR discovery order should beappropriately narrow and limited . '[T]here is nopostconviction right to " fish" through official files forbelated grounds of attack on the judgment, or toconfirm mere speculation or hope that a basis forcollateral relief may exist ' Gonzalez, supra. 275

Cal.Rptr. at 775. 800 P .2d at 1205: see De u v.Taylor. 19 F.3d 1485, 1493 (3d Cir,), cert. denied,512 U.S. 1230, 114 S.Ct. 2730 , 129 L.Ed.2d 853

11994); State v. Thomas. 236 Neb. 553,462 N.W.2d862. 867-68 (1990). However where a defendantpresents the PCR court with good cause to order theState to supply the defendant with discovery that isrelevant to the defendant's case and not privileged,the court has discretionary authority to grant relief.See Rules Governing Section 2254 Cases in theUnited States District Courts, 28 U.S.C.A. § 2254Rule 6(a); [ate v. j Lewis.... 656 So .2d [1248J1250 [ (Fla.1994) ]; (People ex rel. Daley v.1Fitzgerald r123 I11.2d 175,183,1 121 I11.Dec. [937.1941, 526 N .Ed.2d [131 ,] 135 [ (1998) ] (noting that'good cause' standard guards against potential abuseof PCR discovery process)."

*4 Marshad, 148 N .J. at 270-71.690 A.2d at 91-92.

The federal courts have adopted a similar standard fordiscovery in relation to federal habeas corpus actions.FN2 In Murphy v. Bradshaw, [No. C-1-03- 053,

September 13, 2003] (S.D.Ohio 2003) (not published),an Ohio court stated:

"A habeas petitioner is not entitled to discovery as amatter of course, but only upon a fact-specificshowing of good cause and in the Court's exercise ofdiscretion. Rule 6(a), Rules Governing 122M Cases;Bracy v. Gramley,520 U .S. 899,117 S.Ct. 1793.138L.Ed.2d 97 (1997); Harris v. Nelson. 394 U.S. 286,89 S.Ct. 1082. 22 L.Ed.2d 281 (1969); rd v.Collins. 209 F.3d 486.515-16 (6th Cir.2000). Goodcause exists 'where specific allegations before thecourt show reason to believe that the petitioner may,if the facts are fully developed, be able todemonstrate that he is ... entitled to relief ...: Bracy,520 U.S. at 908-909, quoting Harris. 394 U.S., at300. 89 S.Ct., at 1091. Conversely, where apetitioner would not be entitled to relief on aparticular claim, regardless of what facts hedeveloped, he cannot show good cause for discoveryon that claim."

(Emphasis added.) "This authority [to order discoveryin postconviction proceedings] must be exercised withcaution, because of the potential for abuse of thediscovery process and because of the limited scope ofpostconviction proceedings ." People v. Williams. 209

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Ill.2d 227. 236. 282 I1l.Dec._ 824. 830. 807 N.Ed.2d448, 454 (2004). "[T]he range of issues in apost-conviction proceeding is relatively narrow, anddiscovery requirements are correspondingly limited."People ax rel. Dabv v. Fitz2erala 123 I11.2d 175. 182.121 III-Dec. 940, 526 N.E.2d 131, 134 ( 1988 ) .

With these standards in mind, we review theallegations contained in the State's petition for a writ ofmandamus.

1.IQ The State first argues that Judge McCooey abusedher discretion by ordering discovery without firstdetermining whether the petitioner had shown goodcause for the discovery.

It is clear from reading the transcript of the discoveryhearing that Judge McCooey failed to apply the correctstandard when evaluating Jackson's discovery motions.As stated above Judge McCooey noted the severity ofthe sentence imposed in the case and stated: "What iswrong with letting them have the discovery? If they areon a fishing expedition, then they're not going to be ableto prove it anyway."

Because more discovery matters will arise in this case,we take this opportunity to offer the circuit courtguidance in such discovery matters.

II.J U The State further argues that the circuit court erredin granting discovery of the files of the districtattorney's office related to Jackson 's three codefendantsin the capital-murder charges . [FN31 In Jackson'sdiscovery motion , Jackson alleged that the files of hiscodefendants were necessary to prove his Bra v.Maryland 373 U.S. 23.83 S.Ct, 1194, 10 L.E4.2d 215

1(969), claim because , he argued, the State failed todisclose "deals or agreements that had been entered intobetween the prosecution and the co-defendants whotestified for the State."

*5 The exhibits filed with this mandamus petition showthat on March 1, 2004, approximately seven monthsbefore the hearing on Jackson's discovery motions,Judge McCooey issued an other dismissing Jackson's

Brady claim as procedurally barred under Rule32.2(a)(3) and (a)(5), Ala.R.Crim.P. Jackson refers toJudge McCooey's March 1, 2004, order in severalfootnotes in his second discovery motion. Jackson alsostates that he moved that Judge McCooey reinstatethose issues she had previously found to beprocedurally barred. However, the only order issued bythe circuit court included in the exhibits filed with thispetition is the order granting the discovery motions. Wedo know that the claims the circuit court had previouslydismissed as procedurally barred were discussed at thediscovery hearing. It was Jackson's contention thatdiscovery would assist him in developing more facts onthe issues that Judge McCooey had previously held tobe procedurally barred. In Hooks v. State 822 So.2d476 (Ala.Crim.App.2000), we held:

"We agree with the State that a claim that isprocedurally barred in a postconviction petitionclearly is not one that entitles a petitioner to relief. Ifa postconviction claim does not entitle the petitionerto relief, then the petitioner has failed to establishgood cause for the discovery of materials related tothat claim. See Land."822 So.2d at 481. "[I]f a particular claim is

procedurally defaulted, no matter what facts a petitionerdevelops, he will not be able to show that he is entitledto relief. Therefore, there can be no good cause to allowdiscovery of facts underlying a procedurally defaultedclaim." Murphy v. Bradshaw, [No. C-1- 03-053,September 13, 2003] -- F.Supp. -, ---- (S.D.Ohio).

fg Also, a review of the transcript of Jackson 's trialshows that all three codefendants testified that they hadnot been offered any deals in exchange for theirtestimony . fFN41 Before Jackson 's trial his attorneyfiled a pretrial motion styled a "Motion to Require theDisclosure of Deals and Inducements ." This motionrequested the disclosure of "all deals or inducements ofwhat type whatsoever for any witness to testify againstShonell[e] Jackson at trial." The record of the directappeal shows that this motion was granted and that onFebruary 2, 1998 , the circuit court gave the State sevendays to disclose this information . It appears thatJackson had access to this information before trial.

III.L51 The State also argues that Judge McCooey erred in

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allowing discovery of all criminal , mental-health, andcorrectional records for all witnesses who testified forthe State at Jackson 's trial.-rFN51

In Jackson's second discovery motion he requested thefollowing:

"All documents relating to any State witnesses atShonelle Andre Jackson 's trial , including: 1) alljuvenile detention, jail, prison , parole, probation, andpre-sentence investigation records ; 2) all sentencingreports ; 3) all arrest, conviction, and adult andjuvenile criminal offense records ; 4) all records ofany law enforcement authority , including alldocuments relating to any plea negotiations betweenany State witness and the State; 5) all records of anydetention or court authority ; 6) all records of anyprosecuting authority ; 7) all psychiatric,psychological, and mental health records; 8) alldocuments relating to any lie detector tests taken byany State witness; 9) all other records any reports."

*6 The motion further stated that this information wasrequested from, but was not limited to, the followingagencies : the Montgomery County District Attorney'sOffice, the City of Montgomery Police Department, theMontgomery County Sheriffs Department, theMontgomery Fire Department , the Montgomery CountyDetention Facility, the Montgomery city jail, theMontgomery Violent Crimes Task Force , the AlabamaDepartment of Youth Services, the AlabamaDepartment of Corrections , the Alabama Department ofForensic Sciences , the Alabama Department of Pardonsand Paroles , the Alabama Department of Mental Healthand Mental Retardation (specifically including TaylorHardin Secure Medical Facility and Bryce Hospital),and the Montgomery County juvenile , family , districtand circuit courts and the Montgomery municipalcourts.

10 Jackson contends that these documents related tohis Brady claim--a claim Judge McCooey hadpreviously found was procedurally barred. Whenrequested documents relate to a claim that isprocedurally barred there can be no showing of goodcause for the disclosure of the requested information.See Hooks.

jf, Moreover, a defendant is not entitled to discover

the criminal records of a State witness . As this Courtstated in Hardy v. State. 804 So.2d 247LA1a.Crim .Auu.1999):

"As a general rule, the government need not discloseevidence available to the defense from other sourcesor evidence that the prosecution could not reasonablybe imputed to have knowledge of or control over.Mills v. Singl^tary. 63 F,34 9991 1 1th Cir.1995). cert.denied, 517 U.S. 1214. 116 S.Ct. 1837 , 134 L.Ed.2d940 (1996); United States v. Moore. 25 F.3d 563 (7thW. , cert . denied, 513 U.S; 939,115 S .Ct. 341, 130L.Ed.2d 297 (1994)."We have held in Alabama in a number of cases thata defendant is not entitled to the general disclosure ofthe criminal records of the state 's witnesses . See, e.g.,Davis v. State 554 So.2d 1094 Ala .Crim.A _Up. 1,affd, 554 So.2d 1111 (Ala.1989), cert. denied, 498U.S. 1127, 111 S.Ct. 1091, 112 L.Ed.2d 1196(1991); Wright v. State , 424 So.2d 684( la.Crim .Aop.1982) (no absolute right of disclosureof criminal records of state 's witnesses); M . dor is v.State. 423 So .2d 331 (Ala;Crim ,Ann.1982); Mack v.State_375 So.2d 476 (Ala.Crim.Anp,1978), affd, 375S,Q.2c1504 (Ala.1979), vacated on other grounds, 448U.S. 903, 100 S.Ct. 3444. 65 L.Ed .2d 1134(1980).We have also held that the trial court's refusal toorder the prosecution , pursuant to a defendant'sdiscovery motion, to provide the criminal record ofeach expected witness for the state was not aviolation of Brady and its progeny . Davis v. State,554 So .2d at 1100."

804 So .2d at 286.

j$j Also, Jackson requested and was granted unlimitedaccess to the confidential mental-health records of all20 witnesses for the State. Allowing unfettered accessto this information was contrary to the decisions of theAlabama Supreme Court in Ex parte Western MentalHealth Center 884 So.2d 835 (Ala.2003), and ExparteRudder 507 So .2d 411 Ala . 1987 . As the AlabamaSupreme Court stated in Ex parte Western MentalHealth Center:

*7 " 'Although Alabama law does not recognize aphysician-patient privilege of confidentiality, thelegislature has adopted a psychotherapist-patientprivilege .' Ex parte United Serv. Stations, Inc.. 628So.2d 501- 50 (Ala.1993 ). The Code section

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adopting this privilege , & 34-26-2. Ala.Code 1975.states, in pertinent part:" '[T]he confidential relations and communicationsbetween licensed psychologists , licensedpsychiatrists , or licensed psychological techniciansand their clients are placed upon the same basis asthose provided by law between attorney and client,and nothing in this chapter shall be construed torequire any such privileged communication to bedisclosed.'"Additionally, '[ i]t is not disputed that ... medicalrecords , created during the psychiatrist -patientrelationship , are included in the confidentialrelationship and are also privileged .' Ex parseRudder, 507 So.2d 411, 413 (-Ala.1987). Thisprivilege, we have held, is strongly rooted in publicpolicy:" ' "[A] psychiatrist must have his patient'sconfidence or he cannot help him. 'The psychiatricpatient confides more utterly than anyone else in theworld. He exposes to the therapist not only what hiswords directly express ; he lays bare his entire self, hisdreams, his fantasies , his sins, and his shame. Mostpatients who undergo psychotherapy know that this iswhat will be expected of them, and that they cannotget help except on that condition .... It would be toomuch to expect them to do so if they knew that allthey say--and all that the psychiatrist learns fromwhat they say--may be revealed to the whole worldfrom a witness stand.' "

'Taylor v. United States. 222 F.2d 398. 401{D.C.Cir.1955), quoting Guttmacher and Weihofen,Psychiatry and The Law (1952), p. 272.'"Rudder. 507 So.2d at 413. Furthermore, themeaning of the Alabama psychotherapist-patientprivilege statue is clear from the plain language ofthestatute itself. See United Serv. Stations, 628 So.2d at504 (citing King v. National Spa & Pool Inst.. 607So.2d 1241. 1246 (Ala.1992))."There are five recognized exceptions to thepsychotherapy-patient privilege. First, '[t]his Courthas recognized an exception to the privilege where,in a child custody matter, the mental state of one ofthe parents is at issue and a proper resolution of childcustody requires disclosure of otherwise privilegedpsychiatric records .' United Serv. Stations , Inc.. 628So-2d at 504 (citing Harbin v. Harbin. 495 So.2d 72,

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74 (Ala.Civ.App.1986)). The Court has alsorecognized another exception where a defendant in acriminal trial raises the defense of insanity. SeeSalmon v. State, 460 So .2d 334, 337(Ala.Crim,App:1984). Additionally, Alabamarecognizes exceptions for communications relevant inproceedings to hospitalize a patient for mental illness,communications made during a court-orderedexamination of the mental or emotional condition ofa party or witness , and communications concerning abreach of duty arising out of thepsychotherapist-patient relationship . Rule 503.Ala.R.Evid."

*8 884 So.2d at840.

1`91[101 Last, the circuit court's ruling erroneouslygranted Jackson unlimited access to juvenile recordsrelated to all 20 witnesses for the State. Discovery ofinformation regarding juveniles is severely limited by 112-15- 100, Ala.Code1975. A defendant is not entitledto unfettered access of privileged documents. In

ayeLchaourt held that the de fen4da t wags ethis C slle

ed tohaventi to

im

the trial court examine in camera privileged records,i.e., the child victim 's psychiatric records and recordsrelating to the child kept by DHR, so that the courtcould determine whether the privilege yielded to thedefendant 's rights of confrontation andcross-examination. See also D.P. v. State, 850 So.2d370 (Ala.Crim.App.2002). Here, the trial courtconducted no in camera examination of the privilegeddocuments.

TV.j 11 j The State also argues that the circuit court erred ingranting discovery ofthe juror questionnaires and otherdocuments related to the jury-selection process.

Jackson alleged in his discovery motion that theinformation on jury selection was necessary to prove hisclaim of juror misconduct and his claim that his trialcounsel rendered ineffective assistance in failing toadequately raise a Batson v. Kentucky. 476 U.S. 79,106S.Ct. 1712. 90 L.Ed.2d 69 (1986), and a J.E.B. v.

, 511 U.S. 127. 114 S.Ct. 1419, 128 L.Ed.2dAlabama89 (1994), objection at trial.

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The State argues that Jackson cannot show good causefor the disclosure of this information because thejuror-misconduct claim is procedurally barred. OnMarch 1, 2004, Judge McCooey dismissed Jackson'sjuror-misconduct claim as procedurally barred based onRule 32.2.2(a)(3) and (a)(5), Ala.R.Crim.P. "If apostconviction claim does not entitle the petitioner torelief, then the petitioner has failed to establish goodcause for the discovery of materials related to thatclaim." Hcjaks; 822 So,2d at 481.

Moreover, the State asserts that this Court on directappeal addressed the Batson and J. E. B. claims and heldthat the claims were without merit; therefore, it argues,there can be no good cause for discovery of documentsrelating to the jury-selection process.

A majority of this Court in Woods v. State, [Ms.CR-02-1959, August 27, 2004] --- So.2d ----, --(Ala.Crim.App.2004), stated:

"Clearly, then, when this court and/or the AlabamaSupreme Court has specifically addressed andrejected a substantive claim on direct appeal, whetherreviewing for plain or preserved error, a petitioner ina Rule 32 proceeding who raises anineffective-assistance claim based on that samesubstantive claim cannot establish prejudice underStrickland"

(Footnote omitted.) The substantive claims related toJackson's ineffective-assistance-of-counsel claims weredetermined on direct appeal to be without merit;therefore, Jackson can show no good cause for thedisclosure of information related to those claims. SeeMack

V.i l2]. The State further argues that the circuit court erredin allowing Jackson access to the bullet recovered fromthe victim's body and the shell casing found in the areawhere the victim was killed, which were introduced atJackson's trial.

*9 Jackson contended in his discovery motion that thisaccess was necessary to support his claim that his trialcounsel had been ineffective for failing to procure afirearm expert who would have testified that theprojectile recovered from the victim's body could have

been fired from either Jackson 's 9mm pistol or the .357pistol belonging to one of his codefendants.

The State contends that Jackson cannot show goodcause for access to these items because the State'sexpert testified at Jackson's trial that the bulletrecovered from the victim could have been fired fromeither a 9mm pistol or a. 357 pistol.

A review of the record of Jackson's trial supports theState's assertion. This evidence was presented atJackson's trial; therefore, Jackson's claim is withoutmerit . Accordingly Jackson can show no good cause forthe disclosure of materials related to this claim. SeeHooks.

VI.13 The State asserts that the circuit court erred in

granting discovery of the jail visitor sign-in sheetsshowing who visited Jackson and his three codefendantswhile they were in jail awaiting trial.

Jackson argued in his discovery motion that theinformation related to his codefendants was necessaryto prove his Brady claim. However, the circuit courtdismissed this claim as procedurally barred; therefore,Jackson can not show good cause for the disclosure ofinformation related to this claim. Hooks, supra.

a 4J Moreover, there was no good cause for disclosingthe jail visitor sign-in sheets for Jackson because thiswas information within Jackson's own knowledge.Certainly, Jackson could inform his Rule 32 counsel ofthe identities of the individuals who visited him whilehe was incarcerated. This information was clearlyavailable through other less intrusive means; therefore,Jackson can show no good cause for disclosinginformation related to this claim. See Ex parte Mack,supra.

VII.15 The State also argues that it was error for the

circuit court to grant access to the records of variousagencies related to Louis Wendell Taylor-- Jackson'sfather. Jackson's discovery motion requested thefollowing:

"Any and all records pertaining to Louis Wendell

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Taylor generated or maintained by the AlabamaDepartment of Corrections, including but not limitedto all intake, assessment, institutional, personal,disciplinary, medical psychological, psychiatric andmental health records, and any other recordsgenerated or maintained by any prison, medicalfacility or provider, or any other entity associatedwith the Alabama Department of Corrections,including but not limited to Holman Prison, KilbyCorrectional Facility, Easterling CorrectionalFacility, Taylor Hardin Secure Medical Facility, andBryce Medical Facility."

The motion also requested records from the DHR andthe Board that pertained to Taylor.

Jackson asserted that this information was necessary toshow that Jackson's father had been either in jail or ondrugs or abusing alcohol during Jackson's earlyyears--proper mitigating evidence, he argues, thatshould have been presented at the penalty phase of hiscapital trial.

*10 The State argues that this information wasavailable through many other sources and that therequested records are not necessary to support thisclaim. It further asserts that "for the above agencies tobe forced to go through twenty or more years of recordsfor such information is unduly burdensome and timeconsuming."

We agree with the State. Clearly, this information wasavailable from Jackson's father and from other familymembers. It was not necessary to grant such intrusivediscovery when this information was available throughmany other sources. See Ex parts Mack (a court mustconsider the burden on the individuals affected by thediscovery motion and the availability of the requestedevidence through other sources when determiningwhether a petitioner has shown good cause for thematerials or information requested).

VIII.H 61 DHR has filed an amicus curiae brief in which it

argues that the circuit court erred in granting Jacksonfull disclosure of its files related to Taylor without firstreviewing those files in camera. It further asserts thatgranting full discovery of its files violates DHR's

statutory obligation to ensure the confidentiality of itsrecords. See & 38-2-1 et seq., Ala.Code 1975. DHRstates in its brief:

"DHR cannot accomplish its duties, including theduty to maintain the confidentiality of our recordsand to disclose information only when theappropriate steps have been taken by our independentlegal staff, when we are left without notice that ourrecords are being sought and when we have noopportunity before an order is entered to provide theCourt with information concerning the lawsgoverning our records."DHR acknowledges that criminal defendants mayobtain access to protected information by establishingthat they have a constitutional entitlement to it basedon due process principles. Access to information onconstitutional grounds is limited to that material andexculpatory evidence which is essential to thefairness of the trial. Before discovery of protectedDHR information may be obtained, however, a courtmust find that the information contains material andexculpatory evidence essential to the fairness of thetrial. ID

(DHR's amicus curiae brief at pp. 8-9.)

According to our holding in Gibson v. State, 677 So.2d233 (Ala.Crim.Ao.1994), the circuit court abused itsdiscretion in allowing Jackson unlimited access toDHR's files. As we stated in Gibson:

"While it is clear that the defendant himself may notperuse the files, this court has said that in cases suchas this one, where neither the parties nor the trialcourt has seen the files requested by the defendant,'[A]n appellant is entitled, upon request, to have thetrial court conduct an in camera review of thevictim's completefile maintained by DHR in order todetermine whether that file contains any exculpatoryinformation.' Coats v. Stat 615 So.2d 1260, 1261(Ala.Crim.App.1992) (emphasis in the original). Seealso Pennsyh'an_ is v. Ritchie, 480 U.S. [391 at 58.107 S.Ct. [9891 at 1001-02 94 L.Ed.2d 4 [ (1987)I.

*11677 So.2d at 236. Clearly, the circuit court shouldhave first reviewed the DHR files in camera beforegranting discovery of those files.

Moreover, the circuit court's order, which allows


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2005 WL 628485--- So.2d ---

access to the Board 's files, directs the Board to violate15-22-36(h). Ala.Code 1975. The records maintained

by the Board are not subject to inspection. See §15-22-36(bb). Ala.Cod_ e_ 1975 . In Ex parte AlabamaBoard of Pardons & Parolees 814 o.2 870A( 1a,2001), the Alabama Supreme Court stated the

following concerning & 15-22-36(b):"Principles of statutory construction bind this Courtto interpret plain language of a statute 'to meanexactly what it says' and to engage in judicialconstruction only if the language in the statute isambiguous . Exparte Alabama Great Southern RR..788 So .2d 886 . 889 (Ala.2000) , quoting Blue Cross& Blue Shield v. Nielse 714 So.2d 293 , 296Ala.199$ . The Legislature stated in 15-22-36

Ala.Code 1975, with specificity and particularity, that'all other portions of the file shall be privileged.' Aplain reading of the statute indicates that theLegislature created an absolute privilege to provideindividuals and entities an unfettered opportunity toprovide information to the Board , without exposingthe individuals and entities to public scrutiny andpotential retaliation . To hold otherwise , this Courtwould have to engage in improper judicialconstruction.it

"Se tiion 15-22-336(b). Ala.Code 1975, clearly andunambiguously establishes an absolute privilege thatthe Board is legally bound to obey and the circuitcourt is under a duty to uphold."

814 So .2d at 872-73.

17 The State has met its burden of establishing theprerequisites for the issuance of this writ ofmandamus.Staten, Williams, 679 So.2d275(Ala.Crim.App.1996).To grant such broad and unfettered discovery motionsas those granted in this case would result in theexpenditure of great time , resources , and money for allthe affected agencies--over 20 State and non-stateagencies and departments . We can find no other case inwhich the discovery motions were as extensive as themotions filed and granted in this case . A petitioner doesnot have an unlimited and unqualified right to discoveryin a postconviction proceeding . In Land, the SupremeCourt adopted a standard of good cause--it did not electto adopt the broader standards for discovery that arecontained in the Alabama Rules ofCivil Procedure. Our

review of this petition and the exhibits filed with thepetition shows that the majority of the requesteddiscovery was unrelated to the claims raised in the Rule32 petition , was unrelated to the case, and appeared tobe merely an attempt to conduct a fishing expeditionthrough all of the many and varied department andagency files--a good portion of which containprivileged and confidential information.

IX.The State last requests that we take this opportunity to

adopt procedural safeguards for discovery in Rule 32proceedings that will protect nonparties to the litigation.The State in its brief contends:

* 12 "The facts in Jackson illustrate the shortcomingsof current Rule 32 discovery practice and require thisCourt to bring some adversarial testing andsafeguards into the process ; at a minimum to ensurethe 'good cause' standard is being met and thatnonparties receive notice that items held by (orrelating to) them are being sought prior to the entryof a court order."It is time for this Court to apply Rules 37 and 45 ofthe Alabama Rules of Civil Procedure [ 11?N61]--inaddition to the preliminary 'good cause' inquiry--todiscovery in Rule 32 cases. Because the AlabamaRules of Civil Procedure do not apply to Rule 32cases, according to Rule 32.4, this Court must craftthese protections by reviewing the process created inLand, and clarify the legal issues that restrict thediscretion oftrial courts to grant discovery in Rule 32in a published opinion. If this Court does notformally adopt Rules 37 and45 ofthe Alabama Rulesof Civil Procedure, it should, at a minimum, adoptthe safeguards contained therein by requiring noticeto all parties ofthe discovery sought, advanced noticeto the nonparties who will be subjected to therequested discovery order (with an opportunity toappear and be heard through a reasonable waitingperiod), as well as the sanctions provision of Rule45(c) of the Alabama Rules of Civil Procedure,which requires the party seeking discovery to attest totaking 'reasonable steps' to avoid imposing undueburden or expense on those subjected to the everincreasing discovery requests generated in thesecollateral proceedings."

(State's brief at page 27-28.)

C 2005 Thomson/West. No Claim to Orig. U . S. Govt . Works.

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2005 WL 628485--- So.2d ---



18 This Court has no authority to adopt proceduralrules of court--the sole responsibility for doing so restswith the Alabama Supreme Court. See Ala. Const. of1901, Amend No. 328, § 6.11. We urge that court toaddress the problems exemplified by this case at itsearliest opportunity.

The circuit court clearly erred in issuing the broad andunlimited discovery orders in this case. For theforegoing reasons, this petition is due to be, and ishereby, granted . We issue the writ and direct JudgeMcCooey to vacate her rulings on Jackson's twodiscovery motions.

PETITION GRANTED; WRIT ISSUED; STAYLIFTED.

McMILLAN. P.J., and COBB.BASCHAB, and WISE.JJ., concur; SHAW, J ., concurs in part and concurs inthe result, with opinion.

SHAW. Judge , concurring in part and concurring in theresult.

I concur in Parts I through VIII of the main opinionand I concur in the result reached in the opinion. I donot, however, agree with the rationale in Part IX. As Iunderstand the main opinion, the trial court is directedto vacate its rulings on the two discovery motions andto reconsider Jackson's discovery requests in light oftheapplicable law cited in the opinion and by applying theappropriate "good cause" standard discussed in Erparte Land 775 So.2d 847 (A14.2000), and Er parteMack [Ms. CR-02-034 1, April 25, 2003] --- So.2d ----(Ala.Crim.App.2003).

FN 1. A petition for a writ of mandamus hasbeen used to review issues related to discoveryin Rule 32, Ala.R.Crim.P., petitions. See &parte Land 775 So.2 4 847 (Ala.2000), and Exparse Mach [Ms. CR-02-0341, April 25,2003] --- So.2d ---- (Ala.Crim.App.2003).

FN2. Federal habeas corpus actions filedunder 2$ U.S.C. 2254 are similar to ourRule 32 proceedings . Rule 6(a) of the RulesGoverning & 2254 Cases in the United States

District Courts provides : "A party shall beentitled to invoke the processes of discoveryavailable under the Federal Rules of CivilProcedure if, and to the extent that, the judgein the exercise of his discretion and for goodcause shown grants leave to do so, but nototherwise ." See also Bract/ v. Gramley 520U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97

11997).

FN3. Jackson also requested and was grantedaccess to the district attorney's file on himself.The State does not contest the disclosure ofthis material.

FN4. This Court may take judicial notice of itsown records. See Hull v. State. 607 So.2d 369.371 (Ala.Crim.App.1992 .

FNS. The consequences of this request areenormous . The State presented 20 witnesseswho testified at Jackson's trial. In addition toJackson's three codefendants, the followingpeople testified for the State: the victim's wifeand his mother, five witnesses to the events,five City of Montgomery police officers, threeforensic technicians, a medical examiner, anda City of Montgomery fireman.

FN6. Rule 37, Ala.R.Civ.P., entitled "Failureto Make Discovery; Sanctions" states in part(a): "A party, upon reasonable notice to otherparties and all persons affected thereby, mayapply for an order compelling discovery asfollows ...." Rule 45. Ala.R.Civ.P., addressesthe issuance of subpoenas.

2005 WL 628485 (Ala.Crim.App.)

END OF DOCUMENT


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Ci

FIFTEENTH JUDICIAL CIRCUITCIRCUIT COURT

CASE NO. CC-97-2300.60


Petitioner

V.

STATE OF ALABAMA,

Respondent

ORDER

This cause is before the Court upon Order of the Alabama Court of Criminal

Appeals granting the State of Alabama's Petition for Writ of Mandamus and directing this

Court to vacate'its rulings an the Petitioner's discovery motions. Upon consideration of the

same, it is

ORDERED that this Court's rulings on Petitioner Jackson's discovery motions are

hereby vacated and held for naught.

. DONE and ORDERED this the 23rd day of March,

CIRCUIT JUDGE

CC: Alabama Court of Criminal Appeals 3Jeremy McIntire , Office of Attorney General 3

Bryan A . Stevenson & Angela L. Setzer, Equal Justice Initiative of AlabamaOffice of General Counsel, Alabama Department of Human Resources 1V

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IN THE ALABAMA COURT OF CRIMINAL APPEALS

NO.

EX PARTE STATE OF ALABAMA .

IN RE:


PETITIONER,

vs.

STATE OF ALABAMA,

RESPONDENT.

1 PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE TRACY S. MCCOOEY , CIRCUIT JUDGE,FIFTEENTH JUDICIAL CIRCUIT

TROY KING

Attorney General

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And

James R. Houts

ASSITANT ATTORNEY GENERAL

Jeremy McIntireASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

CAPITAL LITIGATION DIVISION

ALABAMA STATE HOUSE

11 SOUTH UNION STREET

MONTGOMERY , ALABAMA 36130

(334) 242--7408

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TABLE OF CONTENTS

TABLE OF CONTENTS .................................... i

INDEX TO EXHIBITS .................................. iii

TABLE OF AUTHORITIES ................................ iv

PETITION FOR WRIT OF MANDAMUS ........................ 1

STATEMENT OF FACTS NECESSARY TO AN UNDERSTANDING OF THEISSUE PRESENTED . ....................................... 1

STATEMENT OF THE ISSUE ............................... 2

Did the trial court err in granting Jackson's

discovery requests without regard for whether

"good cause" had been established? .............. 2

SUMMARY OF ARGUMENT .................................. 2

The Standard of Review for Mandamus .................. 3

ARGUMENT ............................................. 4

I. The Trial Court Abused Its Discretion By GrantingJackson's Discovery Requests Without First

Determining That "Good Cause" Existed As RequiredBy Land And Mack . . . . . . . . . . . . . . . . 4

A.The Trial Court Abused Its Discretion By

Allowing Discovery On Jackson's Brady Claim .. 6

E

1

B.The Trial Court Abused Its Discretion By

Allowing Jackson Access To The Criminal, MentalHealth, And Correctional Records Of All StateWitnesses ...................................... 11

C.The Trial Court Abused Its Discretion By

Allowing Jackson Access To Juror QuestionnairesAnd Other Documents Relating To The Jury And

The Jury Selection Process In Montgomery

County . ..................................... 14

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D.The Trial Court Abused Its Discretion By

Allowing Jackson Access To The Bullet And Shell

Casing Introduced Into Evidence At Trial. ... 16

E.The Trial Court Abused Its Discretion By

Allowing Jackson Access To Any And All Visitor

Sign In Sheets And/Or Logs Of Visitors ToHimself And His Co-Defendants . .............. 17

F.The Trial Court Abused Its Discretion By

Allowing Jackson Access To Any And All Criminal

And Corfectional Records Of His Father, Louis

Wendell Taylor . .................... 19

II. This Court Is Due To Adopt Procedural

Safeguards For The Rule 32 Discovery ProcessThat Will Protect Nonparties To The Litigation.

. .. . . . . . . . . . . . . . . 21

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CONCLUSION .......................................... 30

CERTIFICATE OF SERVICE .............................. 31

ii

1INDEX TO EXHIBITS

1 EXHIBIT A Jackson's Amended Rule 32 Petition

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EXHIBIT B

EXHIBIT C

EXHIBIT D

EXHIBIT E

EXHIBIT F

EXHIBIT G

EXHIBIT H

EXHIBIT I

EXHIBIT J

EXHIBIT K

EXHIBIT L

State's Answer to Jackson's Amended Rule

32 Petition

State's Motion to Dismiss Procedurally

Barred Claims

State' s Motion to Dismiss InsufficientlyPlead Claims

State's Motion to Dismiss Claims Pursuantto Rule 32.7(d)

Jackson's Motion for Discovery of


Information Necessary to a Fair Rule 32

Evidentiary Hearing

Jackson's Motion for Discovery ofProsecution Files, Records, andInformation Necessary to a Fair Rule 32Evidentiary Hearing

State's Response to Jackson's Motion for

Discovery of Institutional Records,

Files, and Information Necessary to a

Fair Rule 32 Evidentiary Hearing

State' s Response to Jackson's Motion forDiscovery of Prosecution Files, Records,and Information Necessary to a Fair Rule32 Evidentiary Hearing

Jackson' s Response to the State'sOpposition to his Discovery Requests

Transcript of the October 13, 2004Hearing Held On the Parties Motions

Court's Order Of October 13, 2004

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TABLE OF AUTHORITIES

Cases

Barbour v. State, CR-00-1731, 2004 WL 1418383, at *9(Ala. Crim. App. June 25, 2004) ..................... 8

Ex parte Coleman, 728 So. 2d 703(Ala. Crim. App. 1998) ............................. 5

Ex carte Land , 775 So . 2d 847 (Ala. 2000 ) ......... 4, 5

Ex parte Mack , 2003 WL 1950008 (Ala. 2003 ) ... 4, 13, 20

Ex parte State ( Hooks ), 822 So . 2d 476 ...... 15, 18, 29

Ex parte State ( In re: Hooks v . State ), 822 So. 2d 476(Ala. Crim. App . 2000 ) .............................. 8

Ex parte State of Alabama ( Hooks ), CR-99-2212, 2000WL 1496807 ( Ala. Crim . App. Oct . 6, 2000 ) .......... 3

Ex parte Western Mental Health Center, 2003 WL23025579 (Ala. 2003 ) .......................... 13, 27

Head v . Stripling , 590 S.E.2d 122(Ga. 2003 ) ......... 23

Hill v. State, 651 So. 2d 1128(Ala. Crim. App. 1994) ............................ 23

Jackson v. State, 836 So. 2d 915

(Ala. Cram. App. 1999) 16

McGowan v. State, 2003 WL 22928607, at *24(Ala. Crim. App. 2003) ............................ 13

Payne v. State, 791 So. 2d 383,(Ala. Crim. App. 1999) ............................ 12

People ex ref Daley v. Fitzgerald, 526 N.E.2d 131(I11. 1988) .......................................... 6

People ex rel Daley, 526 N.E.2d at 135 .............. 20

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People v . Johnson, 2002 WL 592153, at *14(Iii. 2002) ............................... I 6

Peoples v. State, 531 So. 2d 323(Ala. Crim. App. 1988 ) ............................. 5

Stano v. Butterworth, 51 F.3d 942 (11th Cir. 1995) .. 23

U.S. v. Battle, 264 F . Supp.2d 1088 (N.D. Ga . 2003) .. 23

Wilson v. State, 650 So. 2d 587(Ala. Crim. App . 1994 ) ............................ 10

Woods v. State , 2004 WL 1909291(Ala. Crim. App. Aug. 27, 2004) ................... 14

Statutes

Ala. Code § 12-2-9 (1975) ............................ 3

Ala. Code § 38-2-4 (1975) ........................... 25

Other Authorities

ALA. CONST. 1901, Amend. No. 328, § 6.03 ............... 3

Rule 6 of the Rules Governing Section..2254 Casesin the U.S. District Courts ....................... 29

Rules

Rule 32.7(d) Ala.R.Crim.P . .......................... 15

Rule 21 Ala. R. App. P . .............................. 1

Rule 32 Ala.R.Crim.P . ................................ 1

Rule 32.2, Ala.R.Crim.P . ............................. 8

Rule 45(c) of the Alabama Rules of Civil Procedure -.28

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II

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Comes now the State of Alabama, by and through its

Attorney General, and petitions this Court pursuant to Rule

21 of the Alabama Rules of Appellate Procedure to issue a

writ of mandamus instructing the Honorable Tracy S.

McCooey, Circuit Judge for the Fifteenth Judicial Circuit,

to rescind her order granting post-conviction discovery to

Rule 32 petitioner Shonelle Andre Jackson. In support

thereof, the State asserts as follows:

STATEMENT OF FACTS NECESSARY TO AN

UNDERSTANDING OF THE ISSUE PRESENTED

This matter involves a post-conviction proceeding under

Rule 32 of the Alabama Rules of Criminal Procedure. The

petitioner, Shonelle Andre Jackson, filed his petition for

relief from conviction and sentence of death on July 30,

2003. The State filed its answer to Jackson's Rule 32

petition on October 27, 2003. Jackson filed an amended Rule

32 petition on March 31, 2004. The following day, Jackson

filed two motions for discovery:

1) Motion for Discovery of Prosecution Files,

Records, and Information Necessary to a Fair Rule32 Evidentiary Hearing, and

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2) Motion for Discovery of Institutional Records,

Files, and Information Necessary to a Fair Rule 32Evidentiary Hearing.

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The State filed its answer to the amended petition on May

28, 2004, along with objections to Jackson's motions for

discovery together with motions for summary dismissal of

procedurally barred claims, summary dismissal of claims

pursuant to Rule 32.7(d), and summary dismissal of

insufficiently pleaded claims.

On October 13, 2004, the trial court heard the

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State's motions to dismiss and Jackson's motions for

discovery. Without ruling on the State's pending

motions to dismiss and over the State's objections,

Judge McCooey granted all Jackson's discovery motions.

Judge McCooey then invited the State to seek a writ of

mandamus with this Court to review her decision.

STATEMENT OF THE ISSUE

Did the trial court err in granting Jackson's

discovery requests without regard for whether

. "good cause " had been established?

SUMMARY OF ARGUMENT

The Montgomery County Circuit Court abused its

discretion by granting Jackson's motions for discovery

before resolving the State's assertions of procedural bars

and insufficient pleadings. The circuit court explicitly

violated the holdings of Ex parte Land, 775 So. 2d 847

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(Ala. 2000), and Ex parte Mack, 2003 WL 1950008 (Ala. 2003)

that require that the petitioner first demonsttate "good

cause" before the trial court may grant discovery. Instead,

the trial court granted discovery based on the sole

criterion: "There's no harm in letting the discovery be

done". Additionally, the trial court ignored both the legal

rights and interests of third parties, and increased the

costs of this postconviction proceeding to both the

judicial and executive branches of government.

The Standard of Review for Mandamus

For the writ of mandamus to issue, the State must

establish: (1) a clear legal right to the relief sought;

(2) an imperative duty upon the respondent to perform,

accompanied by a refusal to do so; (3) no adequate remedy

at law; and, (4) the properly invoked jurisdiction of the

reviewing court. E.g., Ex parte State of Alabama (Hooks),

2000 WL 1496807 (Ala. Crim. App. Oct. 6, 2000). This Court

has original jurisdiction over the issuance and

determination of writs of mandamus in relation to matters

within its jurisdiction. ALA. CONST. 1901, Amend. No. 328, §

6.03. Pursuant to ALA. CODE § 12-2-9, this Court has

exclusive appellate jurisdiction over all felonies, habeas

3

corpus matters, and post-conviction writs in criminal

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cases. This Court has often used mandamus as a'method of

reviewing discovery orders granted by a Rule 32 court in

collateral criminal proceedings.

ARGUMENT

1. The Trial Court Abused Its Discretion By GrantingJackson ' s Discovery Requests Without First DeterminingThat "Good Cause" Existed As Required By Land And Mack.

The instant petition for writ of mandamus offers this

Court an opportunity to provide further guidance on an

issue -- discovery in postconviction proceedings -- that

has become increasingly misused, leading to an abuse of the

postconviction process.1 By abusing its discretion below and

granting Jackson's motions for discovery before resolving

the State's assertions of procedural bars and insufficient

pleadings, the circuit court explicitly violated the

holding of Ex arte Land, 775 So. 2d 847 (Ala. 2000), and

Ex Parte Mack, 2003 WL 1950008 (Ala. 2003). By doing so,

the circuit court increased the costs of this

postconviction proceeding to both the judicial and

executive branches of government.

' N.b. The circuit court invited the State to file the instant petition forwrit of mandamus to clarify this issue.

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As this Court noted in Ex parte Coleman, 728 So. 2d 703

(Ala. Crim. App. 1998), its docket is clogged'with

postconviction cases -- 26.6 percent of the Court's 1997-

1998 term docket. In 1988, this Court recognized the flood

of postconviction proceedings that have come to threaten

quick justice. See, Peoples v. State, 531 So. 2d 323 (Ala.

Crim. App. 1988)...Against this backdrop, the Court in Land

limited discovery to appropriate cases while cautioning

against abuse of the postconviction process.

Thus, while holding that trial courts had discretion to

grant discovery in Rule 32 cases, the Court noted:

We caution that postconviction discovery does notprovide a petitioner with a right to "fish"through official files and that it "is not adevice for investigating possible claims, but ameans of vindicating actual claims".

Land, 775 So. 2d at 852. The Court held that a petitioner

had to establish "good cause" based on meritorious claims

in the petition to vest the trial court with discretion to

grant discovery.

More recently, in Ex parte Mack, this Court defined the

five criteria that determine whether a petitioner has

established "good cause" for post-conviction discovery:

'Al

`the issues presented in the petition, the scope of the

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requested discovery, the length of time between the

conviction and post-conviction proceeding, the'burden of

discovery on the State and on any witnesses; and the

availability through other sources."' 2003 WL 195008, at *3

(Ala. Crim. App. Apr. 25, 2003)(quoting People v. Johnson,

2002 WL 592153, at *14 (Ill. 2002)(citing People ex rel

Daley v. Fitzgerald, 526 N.E.2d 131, 135(I11. 1988)). As

shown below, rather than following these criteria, the

trial court granted discovery based on the sole notion

that, "There's no harm in letting the discovery be done,

but there is big harm in not letting it be done." (Exhibit

K at 28)

A. The Trial Court Abused Its Discretion By Allowing

Discovery On Jackson ' s Brady Claim.2

The trial court granted Jackson's motion for access to

the Montgomery County District Attorney's files relating to

the prosecution of not only Jackson, but also his co-

defendants. (Exhibit L) Additionally, the trial court's

order granted Jackson's request for access to any case

2 Due to the page constraints of petitions for writ of mandamus, the State isunable to discuss every item of discovery that the trial court erred ingranting. The State has discussed the most flagrant examples of the trial

court's abuse of its discretion in granting discovery. If, however, thisCourt finds that the trial court did, in fact, grant blanket discoverywithout undertaking the required "good cause" analysis - as shown in theState's argument below - then this Court would have an obligation to vacatethe entire order with instructions for the trial court to reconsider theissues under the correct analysis and use the appropriate principles.

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files related to any prior prosecution of Jackson or his

co-defendants, regardless of whether the prior prosecution

was related to the subject of the current Rule 32

proceeding: Jackson's conviction and death sentence for the

capital murder of LeFraich Moore.3 This discovery request

was reportedly linked to Jackson's allegation in his Rule

32 petition that the State entered into undisclosed deals

with Jackson's co-defendants.

The State asserted that this claim was procedurally

barred, however, in addition to being insufficiently

specific under Rule 32.6(b). (Exhibit B at 63-68) In

pleading this claim, Jackson alleged the following facts:

In this case, the State failed to turn over todefense counsel the evidence of - among otherthings --- deals or agreements that had beenentered into between the prosecution and the co-defendants who testified for the state.

(Exhibit A at 65, 1166) This one sentence represents

Jackson's entire factual pleading of this claim.4 As this

Court noted in Barbour v. State, CR-00-1731, 2004 WL

3 The request for access to all prior prosecutions of Jackson and his co-

defendants was not linked in any manner to his Brady claim. The trial courtabused its discretion in granting discovery concerning unrelated prior

prosecutions that have no relevance in the current proceedings. See Ex parte

Mack, 2003 WL 195008, at *4 n.7 ("Mack has failed to connect the majority of

the requested law-enforcement agency files with his case. Most appear to be

outside of the area where the murder occurred and totally unconnected to thecase. It appears that this motion is merely a `fishing expedition.'").4 Jackson also alleges seven other Brady violations in the same conclusory

manner without any underlying factual basis. (Exhibit A at 66-67, 4 167)

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1418383, at *9 (Ala. Crim. App. June 25, 2004), "[a] Brady

claim is subject to the procedural default grounds

contained in Rule 32.2, Ala.R.Crim.P." According to Rule

32.3, once the State pleads a ground of preclusion, "the

petitioner shall have the burden of disproving its

existence beyond a preponderance of the evidence." Because

the State pleaded"procedural bars in response to this Brady

claim, the grant of the requested discovery was in the face

of an un-rebutted presumption that the claim was

procedurally barred.

Such a ruling also flies in the face of this Court's

holding in Ex parte State (In re: Hooks v. State), 822 So.

2d 476 (Ala. Crim. App. 2000), that discovery was

inappropriate - and mandamus was appropriate -- where the

trial court granted discovery as to procedurally barred

claims in a Rule 32 petition. The trial court was aware of

the existence of Hooks when it issued its ruling.

The trial court's reasons for failing to abide by this

Court's holding in Hooks are disturbing. The trial court

admitted that it would be a fishing expedition, stating

"What is wrong with letting them have the discovery? If

they are on a fishing expedition, then they're not going to

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be able to prove it anyway. I mean they can't create things

that aren't there." (Exhibit K at 24) This line of

reasoning has no basis in the law; instead, it allows the

petitioner to "investigate possible claims" rather than

"vindicating actual claims" as mandated by Land. Such

reasoning allows a trial court to impose burdensome

discovery on the-State with no regard for the law and no

regard for the facts of the case.

The petitioner has not offered any information to ceate

any inference or suspicion that the State decided to

violate the law, the rules governing the practice of law,

and personal standards of morality in deciding to

recklessly pursue a conviction. To grant discovery without

such evidence leaves the clear impression that the courts

of this State will review the actions of Alabama

prosecutors with a more wary eye than they will review the

actions of defendants convicted of capital crimes.5 The

inference that the State would blatantly disregard its

ethical duties is more repugnant in the light of testimony

5 This Court will not presume a capital defendant/petitioner engaged inmisconduct or criminal behavior just because he has a lengthy criminal recordor because he may have a huge incentive to do whatever it takes to gain a newtrial or sentencing proceeding. Why, then, is it permissible for a trialcourt to presume that a prosecutor, who is legally and ethically required toreveal deals with co-defendants, might have violated that duty in the absenceof information that would make such a presumption reasonable?

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at Jackson's trial at which the co-defendants in question

were asked under oath whether they had been given deals or

any consideration in exchange for their testimony. All

replied that they had not and that they were there only to

tell the truth. (R. 299-300, 369-370, 424)

This Court, in Wilson v. State, 650 So. 2d 587 (Ala.

Crim. App. 1994),•'-noted that the failure to plead facts

which would directly contradict facts contained in the

trial record is a sufficient ground on which to deny

relief. In Wilson, this Court wrote:

The appellant has the burden of pleading and

proving by a preponderance of the evidence the

facts necessary to entitle him to relief. Rule32.3. While he states his grounds for relief in

his petition, he fails to set out any facts in

support of those grounds. The petition must

include "full disclosure of the factual basis of

those grounds." Rule 32.6(b). The record of theguilty plea proceeding, which is in the record

before us and of which the trial court could take

judicial notice, clearly refutes the allegationsof the petition. Thus, there being no materialissue of fact before the trial court and therebeing no purpose to be served by further

proceedings, the summary disposition of the

petition as to these allegations was proper.

Id. at 589-590. If this Court has already established that

facts in the record of the conviction being attacked must

be countered by specific factual allegations in a Rule 32

petition to create a material issue of fact, how can it not

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be an abuse of discretion here to grant discovery on a

claim that rests on no factual pleadings in the face of

sworn testimony that vitiates the claim on which the

discovery request was grounded?

For these reasons, this Court should review the

transcript of the October 13, 2004 motions hearing, review

the trial court's.-stated reason for granting discovery as

to this issue, and issue a writ of mandamus to the

Montgomery County Circuit Court ordering that court to

vacate its discovery order.

B. The Trial Court Abused Its Discretion By Allowing

Jackson Access To The Criminal , Mental Health, And

Correctional Records Of All State Witnesses.

The trial court also granted Jackson's request for all

documents relating to any State witness at his trial,

including all criminal records, mental health records,

correctional records, etc. Jackson was granted access to

the following records:

All documents relating to any State witness at

Shonelle Andre Jackson's trial, including: 1) alljuvenile detention, jail, prison, parole,

probation, and pre-sentence investigation records;2) all sentencing reports; 3) all arrest,

conviction, and adult and juvenile criminaloffense records; 4) all records of any law

enforcement authority; including all documents

relating to any plea negotiations between any

State witness and the State; 5) all records of

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any detention or court authority; 6) all recordsof any prosecuting authority; 7) all psychiatric,psychological, and mental health records; 8) alldocuments relating to any lie detector test takenby any State witness; 9) all other records and

reports(.)

(Exhibit G at 7) This boilerplate discovery request was in

no way related to the specific claims in his Rule 32

petition. Jackson stated that he was entitled to this

material pursuant to Rule 16 of the Alabama Rules of

Criminal Procedure. Rule 16, however, does not specifically

apply to post-conviction discovery motions.6 Instead, the

guidelines enunciated in Land and Mack provide the

framework for granting post-conviction discovery motions.

In requesting these records, Jackson did not allege

what they might reveal or how they related to any claims

before the trial court. See Payne v. State, 791 So. 2d 383,

395-96 (Ala. Crim. App. 1999)(stating that, although the

circuit court granted Payne "broad discovery from an

extremely general motion," Payne did not "offer any good

cause as to why the discovery was necessary or exactly what

Payne believed the information he sought to discover would

reveal[.]"). Jackson failed to offer any evidence that such

6 Furthermore, this information does not fall under that available under Rule16's plain language.

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documents were relevant to his claims before the trial

court.

Moreover, the trial court's order is contrary to laws

governing the discovery of third-party records. This Court

has held that "[A] defendant is not entitled to the general

disclosure of the criminal records of the state's

witnesses." McGowan v. State, 2003 WL 22928607, at *24

(Ala. Crim. App. 2003). Likewise, the trial court's order

allowing access to the mental health records of State's

witnesses is not only unsupported by any showing of "good

cause" but violates well-defined doctor-patient privileges.

See Ex ante Western Mental Health Center, 2003 WL 23025579

(Ala. 2003).7 The trial court in this case ordered the

discovery of privileged mental health records of State's

witnesses without good cause and without informing those

witnesses that their personal records were being sought.

By granting Jackson's request, the trial court abused

its discretion and allowed Jackson to conduct a prohibited

"fishing expedition." See Ex parte Mack, 2003 WL 195008, at

*4 n.7. To rememdy this injury, this Court should issue a

7 This case is discussed in greater detail below.

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11 writ of mandamus to the Montgomery County Circuit Court

ordering that court to vacate its discovery order.

C. The Trial Court Abused Its Discretion By AllowingJackson Access To Juror Questionnaires And Other

Documents Relating To The Jury And The Jury SelectionProcess In Montgomery County.

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Jackson was granted discovery of jury questionnaires

and all documents relating to the State's use of peremptory

challenges, the use of racial criteria in the jury

selection process in Montgomery County, and any documents

relating to any communication between the State and any

petit jury member before, during, or after the trial.

(Exhibit G at 7) Jackson alleged that such discovery was

necessary for proving his claims of juror misconduct and

ineffective assistance of counsel for failing to adequately

raise Batson and J.E.B. objections. In granting this

request, the trial court ignored the State's contention

that the juror misconduct claims were procedurally barred

and that the ineffective assistance of counsel claim was

due to be dismissed because the underlying issue was

without merit.

The juror misconduct claims were procedurally barred.

(Exhibit C at 2-3) In Woods v. State, 2004 WL 1909291 (Ala.

Crim. App. Aug. 27, 2004), this Court reiterated the

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principle that juror misconduct claims are subject to the

procedural bars of Rule 32.2 and, once pleaded by the

State, it is the petitioner's burden to disprove their

existence. In Woods, this Court determined the juror

misconduct claims were procedurally barred because the

petitioner failed to provide any facts in his amended

petition that, if°^true, would disprove the existence of the

procedural bars. Jackson failed to include any facts in his

amended petition that, if true, would rebut the presumption

that the claims were procedurally barred. Because the State

pleaded procedural bars in relation to the juror misconduct

claims, the trial court abused its discretion by granting

the requested discovery. The trial court's order violates

this Court's previous holding that discovery is

inappropriate as to procedurally barred claims in a Rule 32

petition. See Hooks, 822 So. 2d 476 (Ala. Crim. App. 2000).

The State also objected to Jackson's discovery requests

because the ineffective trial counsel claim is due to be

dismissed pursuant to Ala. R. Crim. P. 32.7(d). (Exhibit E

at 5) In Woods v. State, this Court reaffirmed its earlier

holdings that "when this court and/or the Alabama Supreme

Court has specifically addressed and rejected a substantive

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claim on direct appeal, whether reviewing for plain or

preserved error, a petitioner in a Rule 32 proceeding who

raises an ineffective-assistance claim based on that same

substantive claim cannot establish prejudice under

Strickland." 2004 WL 1909291, at *13. On direct appeal,

this Court held that no Batson or J.E.B. violations

occurred. Jackson-v. State, 836 So. 2d 915, 946-948 (Ala.

Crim. App. 1999). In his amended petition, Jackson did not

allege any new facts that were not presented to this Court

on direct appeal.

Jackson has not and cannot show "good cause" and the

trial court abused its discretion by granting Jackson

discovery on this claim.

D. The Trial Court Abused Its Discretion By Allowing

Jackson Access To The Bullet And Shell Casing

Introduced Into Evidence At Trial.

1

The trial also granted Jackson's request for access to

the bullet and shell casing introduced at his trial.

Jackson argued in his amended Rule 32 petition that counsel

was ineffective for failing to procure a firearm expert who

could have testified that it was possible that the

"projectile that caused Mr. Moore's death could have been

fired by either the 9 mm gun or'the .357 carried by the co-

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defendants." (Exhibit A at 11-12) The record, however,

demonstrates that trial counsel did present this testimony

to the jury during the cross-examination of the State's

firearm expert, Joe Saloom. On cross-examination, Mr.

Saloom testified that the bullet recovered from Mr. Moore's

body could have been fired from either a 9 mm pistol or

.357 pistol. (R.-506, 508)

Accordingly, the State properly moved to dismiss this

claim because no material issue of law or fact exists which

would entitle Jackson to relief and no purpose would be

served by any further proceedings. (Exhibit E at 4)

Counsel in this case cannot be found ineffective for

failing to introduce evidence or testimony where the record

clearly demonstrates that they introduced that evidence or

testimony. Because Jackson's claim of ineffective

assistance of counsel was shown to be rebutted by the

record, he has not and cannot show "good cause" for access

to the bullet and shell casing. Therefore, the trial court

abused its discretion in granting discovery on this claim.

E. The Trial Court Abused Its Discretion By AllowingJackson Access To Any And All Visitor Sign In SheetsAnd/Or Logs Of Visitors To Himself And His Co-Defendants.

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The trial court also granted Jackson's request for

discovery of all jail visitor sign in sheets and/or logs of

visitors pertaining to Shonelle Andre Jackson, Antonio Dion

Barnes, Eric Orlando Williams, and Christopher Rudolph.

Jackson is not entitled to discovery of sign in sheets and

logs that pertain to him. Jackson knows who has visited him

while he has been' incarcerated. It is unnecessary and

unduly burdensome to the State and correctional

institutions to provide Jackson with a list of his own

visitors.

Jackson is also not entitled to the sign in sheets or

visitor logs pertaining to his co-defendants. Jackson

argues that discovery of this information is necessary to

corroborate his claim that the State entered into a deal

with his co-defendants. As discussed earlier in great

detail, however, the Brady claim upon which Jackson relies

to demonstrate "good cause" for his discovery request is

procedurally barred and insufficiently specific. Thus, the

trial court's order violates this Court's previous holding

that discovery is inappropriate as to procedurally barred

claims in a Rule 32 petition. See Hooks, 822 So. 2d 476

(Ala. Crim. App. 2000).

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F. The Trial Court Abused Its Discretion By AllowingJackson Access To Any And All Criminal AndCorrectional Records Of His Father , Louis WendellTaylor.

Jackson was granted discovery of all records pertaining

to Louis Wendell Taylor generated or maintained by the

Department of Corrections, Montgomery County Sheriff's

Department, Montgomery Police Department, Alabama Board of

Pardons and Paroles, Montgomery City Jail, and the

Montgomery County Detention Facility. Additionally, Jackson

was granted discovery of all records generated or

maintained by any medical provider or contractor for

medical and/or psychiatric services to the Alabama

Department of Corrections. Jackson argued that such

discovery is necessary to establish that his father, Louis

Taylor, was either chronically imprisoned, using drugs and

alcohol, or was simply absent when he was young. Jackson's

discovery request is unduly burdensome and overly broad.

Moreover, Jackson has other available means with which to

prove his allegations concerning his father.°

8 In addition, for the reasons shown below, granting discovery of his father'srecords violates every concept of fairness and due process imaginable.Jackson's father is a nonparty to this case. His privacy rights must standuntil he is given notice that his records are being sought and an opportunityto respond.

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E

In Ex parte Mack, this Court defined five criteria for

determining whether a petitioner has established "good

cause" for post-conviction discovery: "`the issues

presented in the petition, the scope of the requested

discovery, the length of time between the conviction and

post-conviction proceeding, the burden of discovery on the

State and on any witnesses; and the availability through

other sources."' 2003 WL 195008, at *3 (Ala. Crim. App.

Apr. 25, 2003)(quoting Johnson, 2002 WL 592153, at

*14(citing People ex rel Daley, 526 N.E.2d at 135. The

trial court failed to consider these criteria in

determining whether Jackson was entitled to the requested

discovery. In the absence of this determination, Jackson

has not and cannot establish "good cause".

The discovery of Taylor's criminal and correctional

records is unnecessary to demonstrate that he was either on

drugs and alcohol or in prison when Jackson was growing up.

Such information could be obtained easily through the

testimony of Jackson, other family members, or even through

his father, Louis Taylor. In fact, Louis Taylor testified

at the penalty phase of Jackson's trial that he was

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frequently absent from the home and that he was

incarcerated in 1994 and 1995. (R. 572, 574)

For the above state agencies to be forced to go through

twenty or more years of records for such information is

unduly burdensome and time consuming. This information is

available through other means, as demonstrated at his

capital murder trial. Jackson's own father and other family

members can certainly testify to these matters contained in

the requested records. Jackson simply does not need these

records to demonstrate that his father was arrested or in

jail while he was growing up. The trial court abused its

discretion by granting Jackson discovery of Taylor's

criminal and institutional records.

II. This Court Is Due To Adopt Procedural Safeguards ForThe Rule 32 Discovery Process That Will ProtectNonparties To The Litigation.

Although Land established the existence of a trial

court's discretion to grant discovery in Rule 32 cases, it

did so in relation to discovery of items that were in the

possession of the State in its role as a prosecutorial

agency. Since Land, however, Petitioners have increasingly

sought discovery from non-parties and from State agencies

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that cannot be said to be a part of the State in its role

as a prosecutorial agency.

The basis for the discovery process recognized in Land

rests upon the "inherent authority of the trial court."

Land, 775 So. 2d at 852. That authority to order discovery,

to be inherent, must relate to a trial court's authority

over the person or entity from whom discovery is sought.

Where the discovery is sought from a party to the case,

there is no question but that the trial court has inherent

authority and jurisdiction over the parties to the matter

in litigation.

A different situation arises, however, when the

discovery is requested from parties who have not appeared

before the court, have not participated in the matter being

litigated, and have not been formally subjected to the

court's jurisdiction. Accordingly, blanket requests for

discovery from these parties must fail where the existence

of such documents is not known to the prosecutor, the

evidence does not relate to statements made by the

defendant, where reports of examinations or tests were not

prepared in relation to the underlying case forming the

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basis for the postconviction appeal, and where the agencies

involved do not fall under the authority of the prosecutor.

In the Brady context, this Court has held that

knowledge of State agencies not involved in the prosecution

effort is not imputed to the State. See, e.g., Hill v.

State, 651 So. 2d 1128, 1132 (Ala. Crim. App. 1994). Other

jurisdictions have reached similar conclusions when

considering what constitutes "the State" in relation to

Brady claims. See, e.g., Head v. Stripling, 590 S.E.2d 122,

126(Ga. 2003)("Our definition of the prosecution team

responsible for Brady disclosures cannot be a monolithic

view of government that would impute to the prosecutor the

knowledge of persons in state agencies not involved in the

prosecution... Such a wide definition would be unworkable.");

Stano v. Butterworth, 51 F.3d 942, 974 (11th Cir. 1995)

("Brady, then, applies only to information possessed by the

prosecutor or anyone over whom he has authority."); U.S. v.

Battle, 264 F.Supp.2d 1088, 1202 (N.D. Ga. 2003)(Knowledge

of Bureau of Prisons staff not imputed to Department of

Justice prosecutors, even though they all worked under the

umbrella of the Department of Justice. Brady only imputes

knowledge from government offices or officials over whom

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the "prosecutor... has authority."). It is clear, then, that

the State cannot be charged with `possession' of evidence

from non-prosecutorial agencies for purposes of Rule 32

discovery, when the Office of Attorney General (or the

local district attorney in a non-capital case) has no

authority over those agencies and where those agencies have

their own general,'counsel. Because the State (represented

by the Office of Attorney General) has no authority over

the operation of these agencies, the trial court cannot

extend its authority to reach these agencies who are not a

party to the matter before the Court.

Using Brady as a guide, and recognizing that the

Capital Litigation Division of the Office of the Alabama

Attorney General (or the local district attorney in a non-

capital case) has no authority over the activities and

functions of independent state agencies such as the

Department of Mental Health and Mental Retardation, the

Department of Human Resources, and the Board of Pardons and

Paroles, it makes no sense to treat the respondent in a

Rule 32 petition as "the State" for purposes of serving

massive, boilerplate discovery requests in collateral

proceedings. The State, as represented by the prosecutorial

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arm of government, cannot readily determine whether

evidence regarding a petitioner exists at these agencies,

what these agencies' rules and regulations require, or how

each agency's general counsel treats requests for

production in various lawsuits around the State. The

Department of Human Resources, for example, employs

attorneys around the State to deal with such requests for

information and who are familiar with the rules and

regulations imposed by state law and federal law governing

this information which deals with confidential medical

information, juvenile information, or information

concerning alleged instances of abuse or neglect. Ala. Code

§ 38-2-4 (1975). Prosecutors are not equipped to respond

to such requests, and they certainly are not employed in a

position that allows them to learn, in detail, how to

handle such information.

Because Rule 32's discovery process - the "inherent

authority of the trial court" - has no formal rules to

guide the parties, these nonparty agencies are subjected to

the legal fiction that they fall under the supervision of a

local trial court of general jurisdiction without advanced

notice of the discovery sought and without any procedure

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that would allow the Court to bring those parties within

its jurisdiction.

The present petition offers this Court an opportunity

to address an important legal issue: In the light of the

growing demands for discovery made in Rule 32 proceedings

against various agencies and organizations that are not

under the authori-ly of the prosecutorial arm of government,9

how does a trial court guarantee an adversarial testing of

proposed discovery? If the Office of Attorney General or a

district attorney's office is ill-suited to speak on behalf

of an independent state agency or private organization

(represented by their general counsel), how is the "good

cause " requirement of Land best preserved?

For example, in this case Jackson requested, and was

granted, discovery of mental health records concerning

himself, his mother, and every State witness who testified

at his trial.10 The records pertaining to Jackson's mother

and the State' s witnesses are governed by the

9 For example, a prosecutor may not simply demand that DHR turn over documentsfor use at a criminal trial.

10 This discovery request was granted despite the absence of any pleaded factssuggesting that any State witness has any mental health records or hasreceived mental health treatment. Petitioner ' s fishing expedition , however,it not the biggest problem relating to this issue, considering the fact thatthis order was issued without any of the State ' s witnesses ever beingnotified that their records were being sought and without their having achance to appear and contest the issue before the trial court.

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psychotherapist-patient privilege codified in § 34-26-2 of

the Code of Alabama of 1975, which required the Supreme

Court of Alabama to grant a petition for writ of mandamus

vacating an order for production of a plaintiff's mental

health records in Ex parte Western Mental Health Center,

No. 1011990, 2003 WL 23025579 (Ala. Dec. 30, 2003). Unlike

that case, there-is no party to the litigation in this case

that can effectively protect this privilege on behalf of

the nonparties because neither this Court nor the Supreme

Court of Alabama has addressed a realistic way of ensuring

that discovery requests in Rule 32 petitions are subjected

to adversarial testing." The facts in Jackson illustrate

the shortcomings of current Rule 32 discovery practice and

require this Court to bring some adversarial testing and

safeguards into the process; at a minimum to ensure the

"good cause" standard is being met and that nonparties

receive notice that items held by (or relating to) them are

being sought prior to the entry of a court order.

11 There is nothing in the record below indicating that Jackson's mother orthe State' s witnesses have ever waived their right to this privilege, northat they are aware that these records (if any exist) are being sought foruse in this proceeding. The trial court, below, did not even inquire intothis matter during the motions hearing, as the Court granted all discoveryrequests immediately upon hearing arguments concerning the petitioner's Bradyclaim as it related to discovery.

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It is time for this Court to apply Rules 37 and 45 of

the Alabama Rules of Civil Procedure - in addi€ion to the

preliminary "good cause" inquiry -- to discovery in Rule 32

cases. Because the Alabama Rules of Civil Procedure do not

apply to Rule 32 cases, according to Rule 32.4, this Court

must craft these protections by reviewing the process

created in Land, and clarify the legal issues that restrict

the discretion of trial courts to grant discovery in Rule

32 in a published opinion. If this Court does not formally

adopt Rules 37 and 45 of the Alabama Rules of Civil

Procedure, it should, at a minimum, adopt the safeguards

contained therein by requiring notice to all parties of the

discovery sought, advanced notice to the nonparties who

will be subjected to the requested discovery order (with an

opportunity to appear and be heard through a reasonable

waiting period), as well as the sanctions provision of Rule

45(c) of the Alabama Rules of Civil Procedure, which

requires the party seeking discovery to attest to taking

"reasonable steps" to avoid imposing undue burden or

expense on those subjected to the ever increasing discovery

requests generated in these collateral proceedings.'2 This

12 In Land, the Court commented in dicta that requiring State agencies to

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Court should also clarify its earlier ruling in Ex parte

State (Hooks), 822 So. 2d 476, that held the Cburt must

resolve the existence of procedural bars before ordering

discovery. All of these safeguards could be implemented by

adopting a system such as that found in Rule 6 of the Rules

Governing Section 2254 Cases in the U.S. District Courts.

This Court can take judicial notice of prior Rule 32

cases it has considered, as well as those currently before

the Court. A review of the discovery requests commonly

being made by petitioners in these Rule 32 cases clearly

indicates a dire need for guidance about what is and is not

permissible under the guise of Rule 32 discovery. In

Jackson, where an overly burdensome and broad discovery

order was signed by the Court - completely unrelated to

"good cause" shown as evidenced by the trial court's own

admission on the record --- this Court has a duty to act and

correct the mistakes present in this case, and provide

guidance on how to handle requests for discovery from

determine whether records exist "would not unduly burden the State." Land,

775 So. 2d 855. The State invites this Court to seek amici curiae briefs fromthe various agencies most commonly affected by the use of boilerplatediscovery in Rule 32 and seek their opinion as to whether the Court'sspeculation about the effects of subpoena compliance and record review wasaccurate. In a time of budget shortfalls and layoffs, it is unduly burdensometo perform a record search that could be avoided if the party making therequest was subject to sanctions if it were determined that such a requestwas merely part of a "fishing expedition."

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1James R. RoutsAssistant Attorney General

y McIntire

1

entities that are, in reality, nonparties to the collateral

proceeding.

CONCLUSION

The circuit court abused its discretion, explicitly

violating Ex parte Land, and Ex parte Mack. By doing so,

the circuit court ignored the privacy rights and interests

of third parties,.-and also needlessly increased the costs

of this postconviction proceeding to both the judicial and

executive branches of government.

WHEREFORE, the State respectfully requests that this

Court issue a writ of mandamus to the Montgomery County

Circuit Court directing that Court to vacate its order

granting Jackson discovery.

Respectfully submitted,

Troy KingAttorney General

October 20, 2004

Assistant Attorney GeneralCounsel of Record*

State of Alabama

Office of the Attorney General11 South Union Street

Montgomery, AL 36130-0152(334) 353-4014 *

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I hereby certify that on this 6ath day of October,

2004, I served a copy of the foregoing on counsel for

Petitioner, by placing said copy in the United States Mail,

first class, postage prepaid and addressed as follows:


Equal Justice Initiative of Alabama

122 Commerce Street

Montgomery, AL 36104

P"'7 lnu'z W.remy . McIntire

Assistant Attorney GeneralCounsel of Record *

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ADDRESS OF COUNSEL:

Office of the Attorney GeneralCapital Litigation DivisionAlabama State House

11 South Union StreetMontgomery, AL 36130(334) 353-4014 *

31

1IN THE ALABAMA COURT Off'' CRIMINAL APPEALS

NO.

EX PARTE STATE OF ALABAMA.

IN RE:


PETITIONER,

vs.

STATE OF ALABAMA,

RESPONDENT.

EXHIBITS

FOR THE


TO THE HONORABLE TRACY S . MCCOOEY, CIRCUIT JUDGE,

FIFTEENTH JUDICIAL CIRCUIT

Volume I of II

TROY KING

Attorney General

1And

James R. Routs'


Jeremy McIntire

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

CAPITAL LITIGATION DIVISION

ALABAMA STATE HOUSE

11 SOUTH UNION STREET

MONTGOMERY, ALABAMA 36130

1INDEX TO EXHIBITS

11r11

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EXHIBIT A

EXHIBIT B

EXHIBIT C

EXHIBIT D

EXHIBIT E

EXHIBIT F

EXHIBIT G

EXHIBIT H

EXHIBIT I

EXHIBIT J

EXHIBIT K

EXHIBIT L

Jackson's Amended Rule 32 Petition

State's Answer to Jackson's Amended Rule32 Petition

State' s Motion to Dismiss ProcedurallyBarred Claims

State's Motion to Dismiss InsufficientlyPlead Claims

State's Motion to Dismiss Claims Pursuantto Rule 32.7(d)



Information Necessary to a Fair Rule 32Evidentiary Hearing


Prosecution Files, Records, and

Information Necessary to a Fair Rule 32Evidentiary Hearing

State's Response to Jackson's Motion forDiscovery of Institutional Records,

Files, and Information Necessary to aFair Rule 32 Evidentiary Hearing

State's Response to Jackson's Motion for

Discovery of Prosecution Files, Records,

and Information Necessary to a Fair Rule32 Evidentiary Hearing

Jackson's Response to the State's

Opposition to his Discovery Requests

Transcript of the October 13, 2004

Hearing Held On the Parties Motions

Court's Order Of October 13, 2004

ii

1IN THE FIFTEENTH JUDICIAL CIRCUIT COURT,

MONTGOMERY COUNTY, ALABAMA

1


Petitioner,

v.

STATE OF ALABAMA,

Respondent.

AMENDED PETITION FOR RELIEF FROM JUDGMENT PURSUANTTO RULE 32 OF THE ALABAMA RULES OF CRIMINAL PROCEDURE

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Petitioner, SHONELLE ANDRE JACKSON, now incarcerated on death row at

Holman Prison, in Atmore, Alabama, petitions this Court for relief from his

unconstitutionally obtained conviction and sentence of death. In support of this petition, Mr.

Jackson states the following:

PROCEDURAL HISTORY

1. In September, 1997, a Montgomery County grand jury indicted Shonelle

Jackson, who was 18 years old at the time of the crime, on two counts of capital murder and

one count of theft or alternatively receiving stolen property pursuant to sections 13A-5-

40(a)(2), (17), 13A-8-3, and 13A-8-17 of the Alabama Code of 1975 in the death of Lefrick

Moore. (C.7-10.)

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2. Due to Mr. Jackson's inability to afford a lawyer, the Honorable William

Garden, Montgomery County Circuit Judge, appointed attorneys Ben Bruner and Robert

Russell. Jr. to represent Mr. Jackson at his capital trial.

3. The trial court subsequently dismissed the second count of the indictment:

intentional murder while the victim is in a vehicle. (R. 36.) On February 27, 1998, the jury

found Mr . Jackson guilty of one count of capital murder (intentional murder during a

robbery), and one count of theft of property in the first degree. (R. 526.) That same day,

there was a short penalty hearing. After only twenty-five minutes of deliberation, the jury

returned with a 12-0 verdict for life without the possibility of parole. (R. 599.) On July 2,

1998, Judge Gordon rejected the jury ' s unanimous verdict and sentenced Mr. Jackson to

death. (R. 602.)

4. The Alabama Court of Criminal Appeals affirmed Mr. Jackson's conviction

and sentence of death on May 28, 1999. Jackson v. State, 836 So. 2d 915 (Ala. Crim. App.

1999). Mr . Jackson's rehearing application was denied on July 9, 1999.

5. The Alabama Supreme Court granted certiorari review and on May 18, 2001,

remanded the case to the Alabama Court of Criminal Appeals for that court to remand the

case for the trial court to conduct a hearing outside the presence of the jury to determine the

admissibility of Mr. Jackson's statement . Ex parte Jackson, 836 So. 2d 973 (Ala. 2001).

6. A hearing was conducted on October 24, 2001, and the trial court found that

Mr. Jackson's statement was admissible. On February 15, 2002, the Alabama Supreme

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Court issued its opinion affirming Mr. Jackson ' s capital conviction and death sentence. Mr.

Jackson filed an application for rehearing , which was denied by the Alabama Supreme Court

in a substituted opinion on May 10 , 2002 . Ex parte Jackson, 836 So . 2d 979 (Ala. 2002).

7. Mr. Jackson filed a timely petition for writ of certiorari to the United States

Supreme Court on August 8, 2002 . That petition was denied on November 18, 2002.

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Jackson v. Alabama, 123 S. Ct. 582 (2002).

8. This timely petition pursuant to Rule 32 of the Alabama Rules of Criminal

Procedure followed.

GROUNDS SUPPORTING THE PETITION FOR RELIEF'

1. MR. JACKSON WAS DENIED EFFECTIVE ASSISTANCE OFCOUNSEL DURING THE GUILT AND PENALTY PHASES OF HISTRIAL IN VIOLATION OF THE FOURTH, FIFTH , SIXTH, EIGHTH,AND FOURTEENTH AMENDMENTS TO THE UNITED STATESCONSTITUTION.

9. Mr. Jackson ' s trial counsel , Ben Bruner and Robert Russell , Jr., did not render

reasonably effective legal representation during Mr. Jackson 's capital murder trial. See

Wiggins v. Smith , 123 S. Ct. 2527 (2003); Williams v . Taylor, 529 U.S. 362 (2000);

Strickland v. Washington , 466 U.S . 668 (1984 ). This Court should accordingly reverse Mr.

'Many of the issues included in Mr. Jackson ' s petition as substantive errors and as claims ofineffective assistance of counsel rest in part on the same facts . In order to avoid repetition , Petitionerhas developed the facts and law only once , in the sections later in the petition on the substantiveclaims . Because the substantive claims demonstrate why Mr. Jackson would have won on the claim,those sections are also important to the Court' s finding of prejudice on the ineffectiveness issues.Petitioner will point the Court to the discussion below for each relevant claim , and incorporates byreference the substantive issues into the ineffectiveness claims.

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Jackson's conviction and sentence of death.

10. Mr. Jackson's counsel was completely ineffective at all stages of the criminal

proceedings against him. The attorneys representing Mr. Jackson at trial abdicated their

constitutionally mandated responsibility to subject the prosecution 's case to a meaningful

adversarial test. Performance ofMr. Jackson's counsel fell far below "an objective standard

of reasonableness" and failed "to make the adversarial testing process work." Strickland, 466

U.S. at 690. None of the numerous errors made by defense counsel can reasonably be

construed as part of a "sound trial strategy." -1d. at 691

11. The errors made by Mr. Jackson's counsel were so serious as to "undermine

confidence in the outcome," Strickland, 466 U.S. at 694, and Mr. Jackson now seeks relief

from his unconstitutionally obtained conviction and sentence of death. But for defense

counsel's ineffectiveness, there is a reasonable probability that Mr. Jackson would not have

been convicted of capital murder and sentenced to death. See Strickland, 466 U.S. at 694;

Williams, 529 U.S. at 420 (rejecting lower court's holding that "mere" difference in outcome

was not enough to find prejudice under Strickland). This failure of defense counsel denied

Mr. Jackson his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments

of the United States Constitution, the Alabama Constitution, and Alabama State law.

12. Counsel's ineffectiveness was, in part, the product of the grossly insufficient

funds available for defense counsel in capital cases. At the time of Mr. Jackson's trial,

Alabama law provided that court-appointed attorneys in capital cases could not be

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compensated more than $ 1,000 for out-of-court work for each phase of a capital trial, based

on a $20 hourly rate.' See Ala. Code § 15-12-21 (1975) (amended 1999).

14. Accordingly, Mr. Jackson' s counsel received no compensation whatsoever for

out-of-court work in excess of fifty hours, and were compensated at rates far below market

level even for the initial fifty hours . This is simply inadequate given the time required to

adequately represent a capital defendant.'

15. This inadequate and statutorily limited compensation violated the separation

ofpowers doctrine, constituted a taking without just compensation, deprived Mr. Jackson of

effective assistance of counsel , and violated the due process and equal protection clauses.

See Bailey v. State, 424 S.E.2d 503 (S.C. 1992) (stating that capital litigation complexity

required court-appointed attorneys to receive reasonable compensation from state and county

funds); Makemson v. Martin County, 491 So. 2d 1109, 1115 (Fla. 1986) (holding that $3,500

limit on compensation in capital trial violated separation of powers and denied capital

defendants effective assistance of counsel); DeLisio v. Alaska Superior Court, 740 P.2d 437,

443 (Alaska, 1987) (finding that takings clause precludes attorney payment at less than that

2 The Alabama legislature eventually recognized the inadequacies ofthis funding scheme andin 1999, amended the statute to significantly raise the level of funding for court-appointed lawyersin capital cases. See Ala. Code § 15-12-21 (1975) (amended 1999). Unfortunately, this changecame too late to provide Mr. Jackson with adequate funds for his defense.

'The limits that this compensation cap put on the defense counsel was evident at trial: "wehave limited resources in this matter. We tried to use them as best we could.... if I did somethingwrong, I apologize to the Court. But there are a zillion people in this. I can only pay Ron Williama certain amount to go out and see what he can do." (R. 24.)

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"received by the average competent attorney operating on the open market"). "It is wellr

established that the Sixth Amendment guarantees to criminal defendants not only the right

of assistance to counsel, but requires that assistance to be legally effective." Waltho v.

State, 506 So. 2d 273, 275 (Miss. 1987); Strickland v. Washington, 466 U.S. 668 (1984).

16. The failure to provide adequate funding to Mr. Jackson's court-appointed

counsel curtailed this most fundamental right. The limitation on funding was particularly

debilitating in Mr. Jackson' s case , given the ballistics evidence and other evidence presented

and relied upon by the State in obtaining his capital conviction and death sentence.

A. Trial Counsel Was Ineffective During the Guilt Phase of Mr. Jackson'sTrial, and Thereby Deprived Petitioner of his Sixth and FourteenthAmendment Rights.

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17. Mr. Jackson was denied effective legal representation during the guilt phase

of his capital trial. This failure of defense counsel denied Mr. Jackson his rights under the

Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution,

the Alabama Constitution and Alabama law. See Wiggins v. Smith, 123 S. Ct. 2527 (2003);

Williams v. Taylor, 529 U.S. 362 (2000); Strickland v. Washin on, 466 U.S. 668 (1984).

1. Trial Counsel Failed to Adequately Investi ate theState's Capital Murder-Charge against Mr. Jackson

18. Counsel failed to conduct an independent investigation, despite the obvious

weaknesses in the prosecution's case and the ample, and readily available, sources of

exculpatory evidence. In order to effectively prepare for a capital trial, counsel must

investigate every possible avenue of defense, investigate and challenge all assertions by the

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State, and subject the State's case to rigorous examination and testing. See Strickland v.

Washington, 466 U.S. 688 (1984); see. e .g., Code v. Montgomery, 799 F.2d 1481,1483 (11th

Cir. 1986) (finding ineffective assistance of counsel where defense failed to interview all

potential alibi witnesses); Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986) (finding

ineffective assistance of counsel where the defense does "not investigate the prosecution's

case, [and does] not investigate ... defense witnesses"); Neal v. Cabana, 764 F.2d 1173,

1177 (5th Cir. 1985) ("A substantial body of... case law insists... that effective counsel

conduct areeasonable amount of pretrial investigation."); Goodwin v. Balkcom, 684 F.2d 794,

805 (11th Cir. 1982).

19. In this instance, counsel failed to make an independent investigation of the

case, and was thus entirely reliant on the State's version of the events. Counsel only met

with Mr. Jackson on a few occasions prior to trial, and did not adequately establish a

relationship of trust that is essential to adequate representation in a capital case, and is

essential to a full development of a defense theory. Similarly, trial counsel failed to

sufficiently meet with Mr. Jackson's family prior to trial, despite the fact that Mr. Jackson's

mothers and sisters, as well as other family members and friends, possessed information that

would have been helpful to his defense.

20. Trial counsel did not meet or attempt to interview the State's witnesses,

including the officers and investigators charged with investigating Mr. Moore's death, did

not attempt to meet or locate individuals whose testimony would conflict with the testimony

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of the co-defendants in this case, or otherwise undermine the State's presentation of guilt.

These witnesses include but are not limited to: Victoria Moss, Leroy Geary, A.C. Porterfield,

Joe Saloom, Andrew Signore, Latiki Denis Williams and any other witnesses related to Mr.

Moore's death.

21. Critically, trial counsel failed to investigate and interview the "only actual

eyewitness to the shooting," Gerard Burdette . (R. 19.) Mr. Burdette gave a statement on the

night of the crime which identified individuals other than Mr. Jackson as the responsible

parties. His testimony was therefore critical; as defense counsel noted at trial: "[i]f he

testifies to what was in his statement, he could very well exonerate our client." (R. 20.)

Despite the critical importance of this witness, trial counsel did not find or interview him,

and thus was unable to present his testimony. In fact, trial counsel did not even know that

they couldn't find him "until the State told Mr. Bruner that they had issued a subpoena on

him and couldn't find him." (R. 23). As the court acknowledged at trial, "If y'all thought

you needed him - doesn't sound to me like y'all tried to do anything. Coincidentally found

out he was being looked for." (R. 23.)

22. In light of this information, trial counsel filed a motion for a continuance three

days before trial. (C. 83.) This motion was denied by the trial court. See infra issue VII

(incorporated by reference). Mr. Burdette never showed up to trial, (R. 38), and when

defense counsel sought to introduce a tape recording of his statement at trial, counsel learned

that the "tape was never impounded." (R. 38.) By virtue of their failure to find and interview

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this witness, counsel was thus forced to read Mr. Burdette's statement into the record at trial.

(R. 33.)

23. Trial counsel's failure to conduct an independent investigation of Mr. Moore's

death was constitutionally required. Counsel's failure in this regard was particularly

prejudicial in this case, given the circumstantial nature of the evidence. The State relied

primarily on the testimony of the three co-defendants in this case to attempt to prove it's

theory of the case that Mr. Jackson and three other young men were driving around

Montgomery in a stolen car on a Friday night. While driving they passed the victim's car

which one of the co-defendants knew had a good stereo system in it. According to the State,

Mr. Jackson decided that he wanted to steal the stereo system, and a few minutes later,

swerved his car in front of the victim's so that the two cars collided. Shots were fired and

the State's theory is that Mr. Jackson shot and killed the victim.

24. Had counsel conducted a constitutionally adequate investigation of the State's

capital charges against Mr. Jackson, counsel would have been able to present a viable

defense theory as to why Mr. Jackson was not guilty of capital murder because the motive

for the killing was based on the fact that the victim was involved with gang members and was

a drug dealer who was known to sell fake drugs, and thus the killing did not take place during

a robbery.

25. Counsel should have investigated and presented evidence in support of this

theory in response to the State's motion in limine to prevent Mr. Jackson from presenting

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evidence that the killing occurred during a drug deal. This evidence would have included

testimony from witnesses such as Gerard Burdette and the victim's wife, Lacreama Moore.

These witnesses could have established not only that the victim was involved in gang

activity, but that this activity involved selling drugs.'

26. Additionally, had trial counsel investigated and interviewed family members

and friends such as Marilyn Jackson, LaQuanda Jackson, Wanda Jackson, Keisha Young,

Monica Taylor, Julia Taylor, LaTanya Austin and Greg McGee, counsel.would have

uncovered and presented evidence that Shonelle began selling drugs at a very young age as

a "drug gofer" for older men in the neighborhood who were gang members, and that Shonelle

himself was a gang member and was involved in gang activity. Such interviews and

investigation would have also revealed that Mr. Jackson and a co-defendant had previously

been convicted of drug offenses, (R.394, C. 177), and that Mr. Jackson used drugs on the day

of the crime. (C.105, 112, 121, 122.).

27. Had counsel marshaled the evidence of the victim's drug use and gang activity,

as well as Mr. Jackson's history of selling drugs and gang involvement, and alerted the trial

court to this evidence, the trial court would have denied the State's motion in limine, and

allowed counsel to present evidence that the motive for this crime was not robbery, but

instead was a result of a drug deal gone bad. Counsel could then have presented this theory

of defense to the jury both in evidence and argument, and the jury would have not have

'Indeed, counsel was on notice about this as the prosecutor acknowledged that the victim wasa drug dealer. and that his wife could establish his reputation as such. (R. 31.)

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convicted Mr. Jackson of capital murder.

2. Trial Counsel Failed to Procure Necessa Exert Assistance

28. Trial counsel failed to procure the necessary expert assistance needed to

effectively challenge the State' s case . A criminal defendant's right to the benefit of expert

assistance is constitutionally recognized and protected . See Ake v . Oklahoma , 470 U.S. 68

(1985); Griffin v. Illinois, 351 U.S. 12 (1956); Gayle v. State, 591 So. 2d 153 (Ala. Crim.

App. 1991).

29. Counsel was ineffective for failing to procure the assistance of (1) a firearm

and projectile expert ; (2) an expert on identification witnesses ; (3) a mental health expert

and/or social worker ; and (4) an expert on drug and alcohol abuse.

30. A firearm and projectile expert would have assisted trial counsel in

undermining the testimony of the State 's experts that the projectile recovered from Mr.

Moore ' s body was necessarily fired by a .380 gun. (See , e . , R. 502 .) Despite the

conflicting evidence offered by the State , defense counsel , clearly not an expert in the arcane

realm of firearm and projectile examination , endeavored to cross-examine the State ' s expert

without the assistance of a defense expert and failed to present the testimony of its own

expertwitness. An expert would have established that the projectile that caused Mr. Moore's

death could have been fired by either the 9 mm gun or the .357 gun carried by the co-

defendants. (R. 305, 444.) Given that there was no eyewitness testimony as to who was

responsible for the shot that killed Mr. Moore, and the murder weapon was never found, this

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expert testimony then would have allowed counsel to argue that one of the co-defendants was

responsible for Mr. Moore's death and that Mr. Jackson was not the shooter in this case.

31. Such testimony was critical because, as the trial court noted in his sentencing

order, there was evidence that the person with the .357, or Antonio Barnes, was responsible

for the death of Lefrick Moore. (C. 184.) Mr. Jackson was constitutionally entitled to an

expert of firearms and -projectile examination, but trial counsel made no effort to procure

such assistance.'

32. Trial counsel also failed to obtain the assistance of an eyewitness expert. At

Mr. Jackson's trial, the State presented the testimony of Leroy Geary to establish that it was

the person in the driver's side of the silver car - or in the State's version of events, Mr.

Jackson - whose door was open, and who was thus responsible for shooting Mr. Moore. (R.

199.) The State then relied on Mr. Geary's testimony in its closing argument in asking the

jury to convict Mr. Jackson of capital murder. (R. 63.)

33. However, an expert on eyewitness identification would have assisted trial

counsel in establishing that Mr. Geary's testimony was unreliable, and thus showing that Mr.

Jackson was not responsible for Mr. Moore's death. This expert would have explained to the

jury how various factors can alter a witness' perception of the event and make that witness'

account of the event unreliable. The expert would have testified that in this case, various

'Defense counsel did move for additional funds for the "services of a trained scuba diver"to recover the alleged "weapon possessed by the Defendant in this cause." (C. 98.) However,defense counsel never procured the assistance of an expert to assist in this matter.

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factors about the event, such as the short amount of time that Mr. Geary had to view the

event, the fact that the event involved violence, and the circumstances surrounding his

alleged identification, such as the fact that it occurred at 11:00 pm, that the witness was

viewing the incident through a 7 foot chain link fence and across two lanes of traffic (R.

202), and that the street light closest to the event had gone out just prior to this incident (R.

206), in addition to any factors about the witness, such as physical limitations or amount of

stress on the witness, that affected his ability to perceive the event, combined to make the

witness' identification unreliable.

34. Because jurors have a tendency to overestimate the accuracy of eyewitness

identification, an expert could have explained how negative factors impact the accuracy of

the identification, and this would have then aided the jury in assessing the accuracy, and

therefore the credibility, of Mr. Geary's testimony when making their decision.

35. Trial counsel failed to obtain the assistance of an investigator or social worker

to -uncover exculpatory evidence, examine the State's evidence, interview the State's

witnesses and potential defense witnesses, and otherwise assist in the development of a

viable defense. As a result, trial counsel lacked the necessary information to make important

decisions about the defense strategy. This lack of investigation was unreasonable and

prejudiced Mr. Jackson. An investigator and social worker would also have assisted trial

counsel in challenging the admissibility of Mr. Jackson's statements both in front of a judge

and in front of a jury. See paragraphs 56-57.

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3 6. Mr. Jackson's attorneys were also ineffective for failing to obtain a mental

health evaluation of Mr. Jackson, and to also obtain an expert to evaluate Mr. Jackson's

ability to voluntarily waive his rights and give a statement to the police. A mental health

expert could not only assess those aspects of Mr. Jackson's functioning that make him

especially vulnerable to influence by the police, see paragraphs 56-57, but also explain to the

jury how the use of certain interrogation techniques by the police are particularly effective

with people of similar characteristics. Additionally, a mental health expert would have

assisted the court and the jury in evaluating Mr. Jackson's level of understanding by

reporting norms of comprehension of rights of persons of similar age, socioeconomic status

and court experience. This testimony would have been critical to both the judge and the

jury's assessment of the voluntariness of Mr. Jackson's statement in determining how much

weight to give to this statement.

37. In addition, Mr. Jackson's long history of mental, emotional and behavioral

problems, including evidence that he was on drugs on the day of the crime, (C. 105, 112, 121,

122), were more than adequate to serve notice to any reasonably competent counsel that

mental health defects likely played a role in the defense. Counsel's failure to request such

an evaluation was clearly ineffective.

38. But for counsel's failure to procure expert assistance, Mr. Jackson would not

have been convicted of capital murder.

3. Trial Counsel Failed to Effectively Challenge theState's Investigation and Presentation of the Case

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39. Counsel failed to effectively challenge the State's investigation and

presentation of the case. Counsel's ineffectiveness began prior to trial, when counsel failed

to file the Youthful Offender Application ("YOA") in a timely manner. Indeed, it was not

filed until the morning of trial, primarily because counsel was "mistaken as to his age." (R.

33.) Given that Mr. Jackson was just over eighteen at the time of the crime, trial counsel's

failure to timely file a YOA application, which if successful would have prevented him from

being charged capitally, constituted deficient performance, and bespeaks a lack of

constitutionally effective advocacy on behalf of Mr. Jackson.

40. In determining whether youthful offender status is appropriate, the trial court

cannot rely solely on consideration of the nature of the crime charged, but must rely on

additional evidence, including not only prior criminal history, but other relevant factors. In

response to the defense motion in this case, the trial judge merely stated that he would "get

a verbal from the probation officer," because he understood that "he has priors before Judge

Reese, ...." (R. 33.) Counsel should not merely have relied on this minimal investigation,

but should have attempted to present testimony both about the prior crimes, and the

compelling evidence of Mr. Jackson's upbringing, including the lack of a father figure, the

impoverished, violent and unstable environment in which he was brought up, and resulting

gang and drug activity, as well as evidence that Mr. Jackson was immature for his age, and

considered to be a "low achiever," as evidence supporting their motion that Mr. Jackson

would benefit from an informal, confidential and rehabilitative system. Pardue v. State, 566

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So. 2d 502 (Ala. Crim . App. 1990). Had counsel timely filed the YOA application, and

presented relevant evidence to the trial court in support of this motion, the application would

have been granted, and Mr . Jackson would not have been charged with capital murder.

41. Additionally, counsel should have challenged the underlying convictions which

formed the basis for the aggravating circumstance against Mr . Jackson that "the capital

offense was committed by a person under sentence of imprisonment ." (C. 174.) The trial

court found that this aggravating factor was established by the fact that "when Jackson

committed the offense he was on probation on suspended sentences for convictions of

burglary in the second degree and theft of property in the first degree (CC-95-2147-EWR)

and possession of marijuana in the first degree (CC-95-2367-E)NR)." (C. 175.) Counsel

should have challenged the voluntariness of Mr . Jackson ' s guilty pleas in these three cases,

and shown that convictions were unconstitutionally obtained . Had counsel challenged the

underlying convictions , counsel could have then challenged the State's theory that Mr.

Jackson was on parole at the time that he committed this crime . This would have established

that one of the two aggravating factors presented to the jury and relied upon by the trial court

was invalid , and therefore could not form a basis for the sentence of death.

42. Moreover , counsel conceded guilt prior to trial by telling the judge that they

had just had a "come to Jesus with our client yesterday," and thus "we think we know where

the weapon may be located in this case ." (R. 25.) Even the court acknowledged that

counsel's statements would assist Mr. Jackson in getting convicted : "If he wants to start

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helping to convict himself, then that's his prerogative." (R. 26.) After this revelation,

counsel then failed to investigate and present the very exculpatory evidence referred to: "the

weapon that the State alleges committed the crime is not the weapon," which was "not the

weapon that our client had in his possession at the time of the shooting." (R. 26.) Counsel

should not have disclosed to the trial court and sentencing authority evidence that suggests

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that Mr. Jackson was involved in the crime without then providing the court with a theory

or argument as to why Mr. Jackson should not be convicted of capital murder or sentenced

to death based on that information. This constitutes deficient performance that prejudiced

Mr. Jackson.

43. Counsel were ineffective during pretrial proceedings, including during jury

selection. During the voir dire of one of the jury panels, counsel's questioning of the jury

members suggested that it was Mr. Jackson, not the State, who had the burden to prove

innocence beyond a reasonable doubt. (R. 146.) The trial court attempted to caution trial

counsel by alerting counsel to the fact that "You're kind of suggesting that the defendant has

to prove reasonable doubt. I don't think that you meant to say that." (R. 146.)

44. In this case, such a burden shifting instruction to the jury was devastating. The

evidence in this case was entirely circumstantial. The record in this case does not contain

evidence sufficient to establish that a robbery took place during the murder or that Mr.

Jackson was involved in the alleged robbery. Moreover, the absence of any inculpatory

forensic or other physical evidence which connects Mr. Jackson to the crime cases serious

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doubt on the State's prima facie case . (R. 19, 29, 422.)

45. The State's failure to satisfy its burden of proof would have allowed the jury

to acquit Mr. Jackson of capital murder . But for trial counsel ' s burden shifting instruction,

which allowed the jury to believe that it was Mr. Jackson, and not the State, who had the

burden of proof in this case , followed by trial counsel 's failure to present any evidence to

contradict the State's theory of Mr. Jackson's guilt - other than the statement of Gerard

Burdette , which was read into the evidence -- Mr. Jackson would not have been convicted of

capital murder.

46.. Defense counsel's voir dire was desultory and wholly inadequate. In addition,

counsel failed to remove prospective jurors who harbored explicit views that were

antithetical to fairness and impartiality . Counsel failed to secure an expert who could have

helped them conduct an adequate voir dire . Trial counsel 's deficient performance failed to

guarantee Mr. Jackson a fair and impartial jury and therefore , Mr. Jackson should be granted

a new trial.

47. The importance of voir dire in protecting an individual 's constitutional rights

is well established . "[P]art of the guarantee of a defendant 's right to an impartial jury is an

adequate voir dire to identify unqualified jurors." Morgan v. Illinois, 504 U.S. 719, 729

(1992); see also Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) ("Without an

adequate voir dire the trial judge's responsibility to remove prospective jurors who will not

be able impartially to follow the court's instructions and evaluate the evidence, cannot he

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fulfilled."); Dennis v. United States, 339 U.S. 162,171-72 (1950); Morford v. United States,

339 U.S. 258, 259 (1950).

48. Counsel ' s failings during the jury selection continued when counsel failed to

object to the trial court ' s improper decision to grant the State ' s challenges for cause. Counsel

should have marshaled evidence and argued that the record did not adequately demonstrate

that jurors Anderson, Atkins, Coleman, Elsberry and Gray had views which would "prevent

or substantially impair" the performance of their duties as jurors in accordance with

instructions and their oaths. Had counsel appropriately alerted the trial court to this fact, the

trial court would not have granted the State ' s challenges for cause , and Mr . Jackson ' s rights

to a fair and impartial jury would not have been violated . See infra issue XIII (incorporated

by reference).

49. Counsel also failed to adequately object to the prosecutor's use of

discriminatory strikes against the veniremembers. See infra issue X (incorporated by

reference). Mr. Jackson is black. There were 42 prospective jurors on Mr. Jackson's jury

venire, of which 25 were female and 19 were black. The prosecutor had 15 peremptory

strikes, of which he used 8 to remove women and 8 to remove blacks. Counsel should have

more effectively argued that the prosecutor used his peremptory strikes in a discriminatory

manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and challenged the

prosecutor's strikes as a violation of J.E.B. v. Alabama, 511 U.S. 127 (1994). See Eagle v.

Linahan. 279 F.3 d 926 (11 `" Cir. 2001 ) (finding counsel ineffective for failing to adequately

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raise Batson claim). In this case, the trial court refused to find a prima facie case of

discrimination despite the prosecutor 's use of 8 of 15 of his peremptory strikes to remove 8

of the 19 black veniremembers. Additionally, the prosecutor used 8 of 15 peremptory strikes

to remove females.

50. Instead of simply arguing to the judge that the prosecutor struck "six out of

seven [black jurors] in a row," (R. 156), as a basis for a prima facie case , the defense should

have presented evidence and argument to show that, in light of the standards articulated in

Ex Parte Branch, 526 So. 2d 609 (Ala. 1987), the struck jurors were as heterogeneous as the

community as a whole; that there was a lack of meaningful voir dire in this case and that the

District Attorney for Montgomery County has a history of discrimination in jury selection.

See, e .g., Bui v. Haley, 321 F.3d 1304 (11" Cir. 2003) (habeas relief granted where

prosecutor engaged in racially discriminatory jury selection); Ex parte Yelder, 630 So. 2d

107, 109 (Ala. 1992).

51. Based on this evidence, the trial court would have found a prima facie case of

discrimination and forced the prosecution to give race and gender neutral reasons for its

strike. Counsel would then have been able to show that the prosecution was removing jurors

from the venire solely on the basis of race and gender, which is necessarily prejudicial not

only to Mr. Jackson but to the jurors and the entire criminal justice system as well. Trial

counsel's failures during voir dire denied Mr. Jackson the right to a fair trial and impartial

jury.

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52. Mr. Jackson's trial counsel failed to properly challenge the State's investigation

and presentation of its case, failed to adequately cross examine witnesses, failed to object to

irrelevant and prejudicial evidence introduced by the State, and failed to challenge the State's

"expert" testimony. Counsel therefore abdicated its constitutional responsibility to subject

the State's case to adversarial testing, see Strickland v. Washington, 466 U.S. 668 (1984), and

allowed the State to convicted Mr. Jackson solely on the basis of uncorroborated accomplice

testimony. The errors of counsel allowed the State to present considerable evidence that

would otherwise have been suppressed, properly excluded, or discredited by the jury.

53. At Mr. Jackson's trial, the State' s case against Mr. Jackson rested primarily on

the testimony of the three co-defendants: all of whom were themselves indicted for capital

murder, (R. 299, 369, 424), and who all were housed together at the Montgomery County Jail

(R. 17.) Even with the incentive and the opportunity to synchronize their facts, the stories

of these three co-defendants did not match up. Given the circumstantial nature of this case,

the testimony of these witnesses was critical to the State's ability to establish Mr. Jackson's

guilt in this crime. Nonetheless, trial counsel failed to effectively exploit the inconsistencies

in their testimony. (See, e.g. R. 321, 336, 351, 352; 388, 409, 413, 414.)

54. Had trial counsel effectively undermined the testimony of these three co-

defendants, the credibility of this testimony would have been in serious doubt. Without the

testimony of Mr. Barnes, Mr. Williams and Mr. Rudolph, there is no evidence to link Mr.

Jackson to the crime of robbery, and thus no evidence upon which he could have been

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convicted of a capital crime. The other witness testimony and evidence presented by the

State did not corroborate these accomplices or provide the jury with an adequate basis for

finding Mr. Jackson guilty of capital murder. Indeed, the other evidence consisted of

testimony about the victim's death from his wife, a Sylvest Plant worker about the car

collision (though he was unable to identify anyone at the scene of the crime), testimony from

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Ms. Flowers and her daughter about the Buick LeSabre, testimony from members of the

Montgomery Fire Department and Police Department about the crime scene and evidence,

chain of custody testimony and forensic science testimony about the bullets and cause of

death, and finally testimony from the investigating officer about his interviews with the

accomplices and Mr. Jackson. Without this testimony, the jury would not have convicted

Mr. Jackson of capital murder. Trial counsel's failure to adequately cross examine these and

the numerous other witnesses presented by the State constitutes ineffective assistance of

counsel.

55. Counsel was ineffective for failing to conduct an adequate cross-examination

of many State witnesses, including Victoria Moss, Leroy Geary and A.C. Portersfield.

Additionally, counsel failed to effectively cross-examine the State's law enforcement

witnesses about their collection and testing of evidence, as well as their investigation of Mr.

Jackson and other possible suspects. These witnesses include Andrew Signore, Joe Saloom,

James Lauridson, and Stephen Smith. For example, the evidence suggests that there may

have been another individual, a female present, and involved in the death of Mr. Moore.

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However, counsel never spoke with witnesses about this possibility or further investigated

this woman's involvement. Had counsel conducted outside investigation, they would have

established that Mr. Jackson was not guilty of capital murder.

56. Counsel should have challenged the voluntariness of Mr. Jackson's statements

in front of the jury. Although the trial court instructed the jury to consider the voluntariness

of Mr. Jackson 's statement, and furthermore instructed the jury that if the statement was

involuntary , the jurors were to assign no weight to it, (R .75-76), because counsel presented

no evidence or argument as to why the jury should not give the statement much weight, their

performance was defective . Had counsel conducted investigation , counsel could have

evidence about the circumstances of Mr . Jackson ' s interrogation , including the following:

1) Mr. Jackson was questioned alone for four hours by two officers , who visibly displayed

weapons on their duty belts, in an eight by eight windowless room containing several pieces

of furniture , (Supp . R. 22-24); and 2) during this interrogation , Mr. Jackson was seated

approximately one to two feet from one of the officers , (Supp . R. 23-24), he was not

pennitted to eat or smoke , (Supp . R. 24-25 ), he was not told that he could be executed for the

crime with which he was being charged , and a bond was never discussed. (Supp . R. 26, 30.)

57. Additionally , counsel would have clear evidence - as documented in school

records , records from the Department of Corrections, and records from the Department of

Youth Services - that Mr. Jackson suffers from serious mental impairments. As a

consequence of these mental impairments, at the time of the questioning by the police Mr.

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Jackson was an eighteen year old "low achiever," (Supp. C.R.2;, R. 61, 64), who was

susceptible to suggestion, (Supp. R. 62), respectful of his elders, (Supp. R. 67), and eager

to please, (Supp. R. 67). This evidence, if presented to the jury, would have been critical to

both the judge and the jury' s assessment of the voluntariness of Mr. Jackson's statement in

determining how much weight, if any, to give to this statement.

58. Counsel failed to effectively investigate and challenge the testimony of the

state experts with regard to the ballistics evidence. For example, the State's expert could not

conclusively testify that the bullet recovered from Mr. Moore came from the shell casing

found at the scene, or that either of these were necessarily fired from the gun that Mr.

Jackson was alleged to have been carrying, a gun that was never recovered or presented as

evidence. (R.504.) Trial counsel failed to effectively take advantage of this gap in the

State's evidence and use it to show that Mr. Jackson was not responsible for Mr. Moore's

death. Had counsel effectively cross examined the experts with regard to ballistics evidence,

and presented expert testimony establishing not only that the bullet may not have come from

the gun that Mr. Jackson was alleged to have been carrying, but that it could have just as

easily come from the guns carried by the co-defendants on that night, counsel could have

argued that Mr. Jackson was not guilty of capital murder, and on this basis urged the jury to

acquit him of this charge.

59. Counsel was ineffective for failing to object to irrelevant and prejudicial

evidence introduced by the State. This evidence included prejudicial pictures of the victim

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after he was killed. (R. 191.) Additionally, during the testimony of Stephen Smith, the State

introduced a video of the crime scene . (R. 259.) These prejudicial and inflammatory

photographs and videos seriously prejudiced Mr. Jackson, and counsel should have objected

to them on that basis.d See infra issue XII (incorporated by reference). Counsel also failed

to object to the trial court ' s improper admission of evidence that did not have a proper chain

of custody. (R. 499-500.) See infra issue XIV (incorporated by reference). The

presentation of this evidence seriously prejudiced Mr. Jackson as this evidence inflamed and

prejudiced the jury and accordingly undermined the reliability of Mr. Jackson's conviction

and sentence of death. This failure constituted ineffective assistance of counsel.

60. In addition to failing to contest the State's theory of events , trial counsel failed

to present a viable theory of defense. During opening argument , counsel simply referred to

the State's burden of proof, and reminded the jury to consider the bias of the co-defendants

when assessing the reliability of their statements . (R. 168-73.) At no point did trial counsel

set forth a viable theory of defense that would have allowed the jury to acquit Mr. Jackson

of capital murder.

61. After the State had rested , counsel then failed to present any witnesses, save

for the statement of Gerard Burdette, which was read into the transcript by the two defense

attorneys. (R. 33.) Trial counsel presented no other witnesses, and failed to marshal

'Attorney Russell initially objected to the admission of the video "until after we have seenit," but was reminded by his co-counsel attorney Bruner. that he "had seen it." It was then admitted.(R. 259.)

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evidence in support of a conviction of less than capital murder. As articulated earlier, counsel

should have presented evidence, in the form of witnesses including Gerard Burdette,

Lacreama Moore, and family members and friends such as Marilyn Jackson, LaQuanda

Jackson, Wanda Jackson, Keisha Young, Monica Taylor, Julia Taylor, and Greg McGee, that

this crime involved drug and gang activity, and not a robbery. See paragraphs 24-27. Had

counsel presented this evidence and argument , the jury would not have convicted Mr.

Jackson of capital murder.

62. Trial counsel ' s closing statement was similarly inadequate . After the State had

an opportunity to rebut Mr . Burdette 's statement, defense counsel then presented a closing

argument in which counsel once again reminded the jury of the burden of proof, pointed out

the inconsistencies in the co-defendant ' s statements and argued that the facts and the story

"ought to tell you and give you a gut feeling that the State has proven its case beyond a

reasonable doubt ." (R. 88.) Mr . Jackson ' s counsel failed entirely in argument to advocate

on his behalf. See Herring v. New York, 422 U. S. 853 ( 1975) (" ... no aspect of such

advocacy could be more important than the opportunity finally to marshal the evidence for

each side before submission of the case to judgment.").

63. Had counsel appropriately investigated the case , they would have presented

evidence that Mr . Jackson was not guilty of capital murder because there was no robbery

involved, but instead it was a case of a drug deal gone bad. On this basis, counsel could have

then presented argument, both in opening and closing , that, in contrast to the State's tlheonl,

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of events, Mr. Jackson was not guilty of capital murder. Had this evidence and argument

been presented, the jury would not have found Mr. Jackson guilty of capital murder.

64. Counsel should have additionally argued that the evidence showed that the

bullet recovered from Mr. Moore's body did not necessarily come from the gun that Mr.

Jackson was allegedly carrying, and that it was just as likely that it was one of the co-

defendants who was responsible for Mr. Moore's death. Had counsel presented this evidence

and made these arguments, the jury would have likely acquitted him of capital murder and/or

the judge would have not sentenced him to death based on his minor participation in the

crime . This constitutes ineffective assistance of counsel.

65. Counsel failure to ensure a complete appellate record by ensuring that a

transcription of all proceedings in this were accurately transcribed. At numerous points

during the trial, either the State or the trial court requested that the discussions be off the

record. (See e.g R. 250, 368, 530.) It is absolutely essential that capital sentences be

reviewed on a complete record. See Dobbs v. Zant, 506 U.S. 357, 358 (1993) (reversing

capital conviction where the Court of Appeals refused to consider the sentencing hearing

transcript); see also Gardner v. Florida, 430 U.S. 349 (1977) (plurality opinion) (emphasizing

importance of reviewing capital sentences on a complete record); Gregg v. Geor ia, 428 U.S.

153, 167 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (Georgia's capital

sentencing provision requiring transmittal on appeal of complete transcript and record is

important "safeguard against arbitrariness and caprice.") Counsel's failure to ensure an

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accurate and complete record in this case constitutes ineffective assistance of counsel

because it precluded the appellate courts from reviewing the entire record in determining the

validity of Mr. Jackson ' s capital conviction and sentence of death , and was therefore

prejudicial to Mr. Jackson.

4. Trial Counsel Failed to Request and Failed taT__ObJect to the Trial Court's Fa ilure to Instruct the

Ju` on the Lesser Included Offense of Robbe

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66. Although the State's evidence showed that the victim was killed and that the

victim 's car was stolen , the State's evidence also showed that the car was stolen only as an

"afterthought" and that the robbery was thus a separate crime from the murder. The trial

court ' s failure to ensure that the trial courtproperly instructed the jury on the lesser included

offense of robbery, by first requesting and then objecting to the trial court's failure to do so,

constitutes ineffective assistance of counsel that prejudiced Mr. Jackson . See infra issue VI

(incorporated by reference).

5. Trial Counsel Failed to Ob'ect when the TrialCourt Im ro erl Left the Courtroom While theJu Watched Mr. Jackson's VideotapedStatement.

67. During Mr. Jackson' s capital trial , while the jury watched Mr. Jackson's

videotaped statement , the trial judge stopped the video and told the jury that it was "not

important for [his] purposes to see it," and because the trial judge had "some other things to

do," the judge left the courtroom. (R. 524.) Subsequently. the court reporter instructed the

jury before they left for the day. (R. 525.) This was improper, and trial counsel's failure to

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object to this constitutes ineffective assistance of counsel . See infra, issue VIII ( incorporated

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by reference).

6. Trial Counsel Failed to Object to the Trial Court'sImproper Instruction on Reasonable Doubt

68. During the guilt phase of Mr. Jackson's trial, the trial court improperly

instructed the jury on.reasonable doubt , which lowered the State ' s burden of proof, in

violation of Mr . Jackson's state and federal constitutional rights . Trial court ' s failure to

ensure that the jury was properly instructed constitutes ineffective assistance of counsel. See

infra, issue XI (incorporated by reference).

7. Trial Counsel Failed to Ensure that the Jurorswere Properly Instructed about the Accom pliceCorroboration Requirement

69. The most significant weakness in the State 's case against Mr. Jackson was the

failure to adequately prove the element of robbery, the very element which elevated this

crime to capital murder . Critically , the State ' s robbery case rested on the testimony of three

accomplices , individuals who themselves were indicted for the same crime of capital murder,

individuals who all hoped to gain something by testifying, and individuals who were housed

together in the Montgomery County Jail prior to trial. While the contradictions in their

testimony are apparent , what is even more apparent is that this testimony with respect to

robbery remained wholly uncorroborated by any other evidence.

70. Though trial counsel moved for a judgment of acquittal on this basis , the trial

court erroneously pennitted the State to rely on this uncorroborated testimony to gain a

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conviction against Mr. Jackson. Trial counsel did not, however, move the trial court to

properly instruct the inrorc about the accomnlice corroboration reainirenient . Trial counsel's

performance in this regard was deficient. See infra, issue IX (incorporated by reference).

But for counsel's failure, the jury would not have convicted Mr. Jackson of capital murder.

8. The Cumulative Effect of Counsel's PerfonnanceDenied Mr. Jackson his Ri ht to EffectiveAssistance of Counsel at the Guilt Phase of HisCapital Trial

71. These errors denied Mr. Jackson the effective assistance of counsel in violation

of the Alabama Constitution, and the Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution. See United States v. Chronic, 466 U.S. 648, 659 (1984). Daniel

v. Thigpen, 742 F. Supp. 1535, 1561 (M.D. Ala. 1990). But for counsel's deficient

performance, Mr. Jackson would not have been convicted of capital murder and sentenced

to death. Strickland v. Washington, 466 U.S. 668 (1984); Williams v. Tamer, 529 U.S. 362

(2000).

B. Trial Counsel Was Ineffective During the Penalty andSentencing Phases of Mr. Jackson's Trial Thus Resulting inthe Unjust and Unconstitutional Imposition of the DeathPenalty.

72. Mr. Jackson's trial counsel was ineffective during the penalty phase of the trial

and at the judicial sentencing hearing. Though the jury returned a unanimous life verdict in

less than an hour, as a result of trial counsel's ineffectiveness, the trial judge nonetheless

overrode this verdict and sentenced Mr. Jackson to death. Despite numerous mitigating

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factors that exist in this case -- both statutory and non -statutory - trial counsel put forth very

little evidence at the penalty phase of the trial. Sonya Ringstaff , Mr. Jackson's girlfriend,

testified that Mr . Jackson was not violent , truthful, and "an understanding, nice young man."

(R. 564.) The testimony of Marilyn Jackson, Mr. Jackson's mother, covered only two and

a half pages of transcript , and included a plea to the jury to "spare my son's life ," as he was

her "only son." (R. 567-68.) The combined testimony of these witnesses, which only lasted

long enough to fill fifteen pages of transcript, constituted the entirety of Mr. Jackson's

penalty phase evidentiary presentation and did not even begin to explain the complexities of

Mr. Jackson ' s character , his mental and emotional impairments , his troubled upbringing and

his familial history of alcohol and drug abuse. More critically, after this minimal

presentation of evidence to the jury, trial counsel failed to proffer any additional evidence

at the judicial sentencing phase ; indeed counsel barely made an argument as to why Mr.

Jackson should be sentenced to life without the possibility of parole.

73. Trial counsel ' s representation of Mr . Jackson at the penalty phase and judicial

sentencing hearing of his capital trial was inadequate and denied Mr. Jackson a fair

sentencing phase determination as required under the Fifth , Sixth, Eighth , and Fourteenth

Amendments to the United States Constitution, the Alabama Constitution, and Alabama law.

Wiggins v. Smith. 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000); Strickland

v. Washinn, 466 U.S. 668 (1984).

1. Trial Counsel Failed to Investi ate and Present even aPortion of the Available Mitigation Evidence During the

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Penalty Phase and Sentencing ffiâri.n

74. In a capital case , trial counsel has the constitutional duty to fully investigate

and prepare for the penalty phase of the trial. Wiggins, 123 S. Ct. at 2541-42 ("counsel's

investigation into Wiggins ' background did not reflect reasonable professional judgment,"

and constituted ineffective assistance of counsel ); Williams, 529 U.S. at 396 (counsel has an

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obligation to conduct a thorough investigation into defendant ' s background ; failure to do so

constituted ineffective assistance of counsel); Strickland, 466 U.S. at 690-91(counsel has a

duty to investigate at the penalty phase of a capital trial). The trial court and the jury must

consider "any aspect of the defendant's character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a sentence less than death." Lockett v.

Ohio, 438 U.S. 586, 604 (1978). Thus, trial counsel "has a duty to conduct a reasonable

investigation, including an investigation of the defendant's background, for possible

mitigating evidence." Porter v. Sin_letarv, 14 F.3d 554, 557 (11th Cir. 1994).

75. Trial counsel should have obtained complete and accurate information

regarding Mr. Jackson's family and social history, educational history, medical history,

mental health history, employment and training history, prior adult and juvenile correctional

experiences, and any community, religious and cultural influences. See Wi ins, 123 S. Ct.

at 2537 (citing the American Bar Association, Guidelines for the Appointment and

Performance of Counsel in Death Penal Cases, 11.8.6, p.133 (1989), as "guides to

determining what is reasonable" conduct in capital defense work).

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76. Trial counsel in Mr. Jackson' s case failed to meet these minimum

requirements. Thus, it is necessary to find that defense counsel was ineffective in their

penalty phase representation of Mr. Jackson. See Wig gins , 123 S. Ct. at 2542 (counsel

ineffective for failing to investigate and present evidence of client's "troubled history"

including abuse, neglectful parenting and diminished mental capacities); Williams, 529 U.S.

at 395-96 (counsel ineffective for failing to thoroughly investigate and present evidence of

client's "nightmarish childhood," including parental neglect, abuse, and evidence that

defendant was "borderline mentally retarded" and did not advance beyond the sixth grade in

school); Brownlee v. Haley, 306 F.3d 1043, 1070 (11`" Or. 2002) (counsel's failure to

investigate, obtain, or present the "powerful mitigating evidence of [defendant]'s borderline

mental retardation, psychiatric disorders, and history of drug and alcohol abuse"constituted

ineffective assistance of counsel); Harris v. Dugger, 874 F.2d 756 (11th Cir. 1989) (finding

counsel ineffective in penalty phase because of lack of investigation into family background

and other mitigating evidence).

77. Trial counsel in Mr. Jackson's case did not conduct the minimally adequate

investigation needed for effective penalty phase representation. Trial counsel made no effort

to interview Mr. Jackson's family members regarding available mitigating evidence. Mr.

Jackson has numerous family members and friends, including sisters, Laquanda Jackson and

Wanda Jackson; two half-sisters, Dmitri Gaston and Keisha Gaston; a grandmother, Della

Jackson; a grandfather, Tommy Taylor; aunts, Joyce Harvest, and Geraldine Taylor; a great

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aunt. Betty Brawlin; uncles, Freddie Owens, Donald Collins, and Roosevelt Emerson, Jr.; and

cousins, Christopher Harvest, Corey Taylor, Julia Taylor, Monica Taylor, Shantay Taylor,

Chakka Harvest, Decarlos Harvest, Micky Harvest, Michael Harvest, Detrick Collins, and

Gary Collins, who were not interviewed or asked to testify. Most of these individuals were

living in and around Montgomery , Alabama at the time of the trial and were readily available

to be interviewed regarding mitigating evidence . In fact, many of these family members

were present at the trial and were ready to testify regarding mitigating evidence. This

constitutes deficient performance.

78. The fact that trial counsel called some witnesses to the stand during the penalty

phase does not render their performance effective . If trial counsel 's purpose was to bring out

the humanity and character of Mr. Jackson by having these witnesses testify, this intention

"stands in stark contrast to the presentation that actually took place." Collier v._Tur, Din, 177

F.3d 1184 , 1200 (11th Cir. 1999). Trial counsel's examination of these witnesses was

perfunctory, deficient, and prejudicial.

79. Marilyn Jackson, Louis Taylor, Thelma Owens, and Sonya Ringstaff were not

able to present a compelling picture of Mr. Jackson or give the information about Shonelle

Jackson that they wanted to give; nor were they prepared by trial counsel for their testimony.

Trial counsel failed to meet with any of these witnesses prior to the morning their testimony

was delivered. None of them understood the nature of their testimony. Effective trial

counsel would have explained to these witnesses the critical importance of presenting a

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narrative of Mr. Jackson's life to the judge and jury in order to show them Mr. Jackson's

humanity.

80. Moreover, trial counsel failed to elicit any testimony regarding compelling

mitigating evidence in this case , including , inter alia: Mr . Jackson ' s lack of a father figure

or other male role remodel, his religious influences and experiences, his devotion to family

members, and his impoverished childhood characterized by illicit drugs , alcohol, and the

continuous threat of random destructive violence. That counsel failed to talk with these

witnesses and prepare them for their testimony is evident from the witnesses ' testimony at

trial. For example, Marilyn Jackson, Mr. Jackson's mother, was asked by trial counsel to

"tell me about his upbringing and his school life." (R . 567.) In response, Ms. Jackson's

response was simply that "he went to school . He went as far as the ninth grade in school."

(R. 567. ) Trial counsel ' s "minimal questioning of[Ms. Jackson] resulted in the jury ' s being

deprived of substantial mitigating evidence regarding [Mr. Jackson]." Cunningham v. Zant,

928 F.2d 1006, 1017 (11th Cir. 1991). This evidence of Mr. Jackson's childhood could also

have been presented by the numerous family members who had contact with Mr. Jackson

throughout these years, including those individuals listed above.

81. Mr. Jackson also has numerous friends, including James McGee, Keisha

Young, A.C. Williams, Marshal Woods, Samuella McMillian, Sonya Ringstaff, and Latrice

Walker, and other community members, including Rick Cotton, Latanya Austin, and Eddie

Woods, who were available as sources of mitigating evidence related to Mr. Jackson's family

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and social history, employment history , medical history, and mental health history . None of

these people were contacted by trial counsel; had they been contacted, they would have been

willing and able to present testimony about Mr . Jackson's childhood, including testimony

about the violence , poverty, drugs, and alcohol that characterized the household in which Mr.

Jackson was raised.

82. Indeed, communication with Mr. Jackson's family and friends was so lacking,

they were unaware of the trial court's power to override the jury's 12-0 life recommendation.

Family and friends who attended the trial were relieved when they heard the jury's

recommendation for life . Because trial counsel never explained the process through which

Mr. Jackson would be sentenced, family and friends believed the jury's life recommendation

was the final adjudication in Mr. Jackson' s case . They were shocked and horrified when they

learned, not through Mr. Jackson's attorneys, but through a co-worker of Thelma Owens that

Shonelle was actually sentenced to death. Upon hearing this news on the radio , the co-

worker informed Mrs. Owens who then called Marilyn Jackson. Ms. Jackson was left with

the task of circulating this information among Shonelle ' s friends and family. Had trial

counsel met with Mr. Jackson's family and friends, they would have understood that the trial

court had the power to sentence Mr. Jackson to death, and would have been able to provide

compelling testimony to persuade the sentencing authority that a sentence of life without

possibility of parole was appropriate in this case.

83. In addition to defense counsel's failure to contact people who would offer

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useful mitigation evidence, counsel failed to procure necessary records documenting Mr.

Jackson's life. These records include education records, housing records, mental and

physical health records, employment records, correctional records, and religious records of

both Mr. Jackson and his parents and siblings. These records would have been particularly

important, as they would have corroborated the testimony that should have been adduced by

family members and friends regarding Mr. Jackson's childhood.

84. Had trial counsel obtained these records and interviewed even a portion of the

potential witnesses who were willing to testify for Mr. Jackson, trial counsel would have

easily uncovered a vast amount of mitigating evidence. This evidence would have

illuminated Mr. Jackson's childhood for the court, and revealed that he was raised in a house

characterized by neglect, absent or disabled parental figures, poverty, rampant drug and

alcohol abuse, and a constant threat of violence.

85. A reasonable investigation would have uncovered evidence of Mr. Jackson's

unstable homelife. Interviews with family members, including Geraldine Taylor, Julia

Taylor, Monica Taylor, Joyce Harvest, and Thelma Owens, and medical records would have

revealed that Mr. Jackson's parents were heavy drug users, and the fact that Mr. Jackson's

mother was using drugs, including crack and smoking marijuana, both before Mr. Jackson's

birth and during his early childhood. His parents use of crack and marijuana not only created

an unstable homelife, but contributed to Mr. Jackson's impaired mental and emotional

development.

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86. Mr . Jackson ' s parents, Marilyn Jackson and Louis Taylor , had serious drug

addiction problems throughout Mr. Jackson's childhood. Thelma Owens, Geraldine Taylor,

Julia Taylor, Monica Taylor, and Joyce Harvest would have testified that as a consequence

of this drug use, not only was desperately needed family money diverted to purchasing drugs,

but the children were exposed to a host of people continuously coming in and out of their

home to use illicit drugs.

87. Members of the community were well aware of Marilyn and Louis' drug use.

Indeed, the level of their use, and their concomitant disability as parents was so severe that

testimony would have revealed that children at school often teased Shonelle about Marilyn

and Louis ' drug abuse problem.

88. In Mr. Jackson's impoverished household, this drug abuse created further

financial instability . Marilyn Jackson was on welfare and barely able to feed her children,

yet nonetheless diverted much of her money to supporting her drug use. In fact , Marilyn

Jackson often sold the family's food stamps in exchange for cash so she could support her

drug habit.

89. As a result of his parents' drug use, Shonelle's childhood was marked by

extreme instability, absence of a father figure, violence, drugs, and alcohol. The testimony

of family members and friends, including Joyce Harvest, Marilyn Jackson, Laquanda

Jackson, Wanda Jackson, Geraldine Taylor, Monica Taylor, Thelma Owens, and Keisha

Young, as well as court and correctional records, would have established that Mr. Jackson's

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father, Louis Taylor, was chronically imprisoned when Shonelle was young , and even when

not incarcerated , was usually either using drugs and alcohol or was simply absent. Mr.

Jackson ' s father was constantly in legal trouble , in large part because of his drug use and

alcoholism ; family members and friends would have testified that as a result he did not

provide any support for Mr. Jackson.

90. Court records indicate that Louis Taylor was arrested no less than thirteen times

before 1997. In fact, at the time Shonelle Jackson allegedly committed this offense, he was

receiving no guidance or support from his father because, as Louis Taylor would have

testified , he was in jail at the time.

91. His father ' s pervasive absence was exacerbated by a complete lack of rnale

adult role models in Mr. Jackson's childhood and youth. Thelma Owens would have

testified, for example, that Shonelle attempted to fill this void by spending time with his

uncle Freddie Owens, but that Mr. Owens was not able to make up for the absence of stable

male role models within Shonelle 's household.

92. Family and friends, including Joyce Harvest, Thelma Owens, and Geraldine

Taylor would have testified that the only other male relative in Mr. Jackson's life - their

brother, Roosevelt Emerson, Jr. -- was not around much while Mr. Jackson was growing up

because he was either in the military or jail . As a result, as Shonelle got older , he began to

fill the void left by his father and uncles with older peers who engaged in illegal and violent

behavior.

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93. As a consequence of his parents' drug use and his father ' s absence , records and

testimony from family and community members would establish that Mr. Jackson and his

siblings suffered from neglect ; they grew up in an impoverished home and were not properly

cared for. Family members, such as Della Jackson, Geraldine Taylor, Joyce Harvest, and

Thelma Owens would have testified that Shonelle and his siblings were not properly clothed

and fed by their parents ,- and that they attempted to make up for these failings by providing

the children with food and clothing.

94. All of the aforementioned family members would have testified to the

impoverished conditions Mr. Jackson ' s family endured . Because Marilyn Jackson was

unable to provide her children with necessities , Wanda and Laquanda Jackson would have

testified that they were often forced to acquire nourishment from various sources outside the

home, including neighbors, the First Baptist Church and the Trenholm Court Community

Center.

95. Relatives, such as Thelma Owens and Della Jackson, who were aware of

Marilyn Jackson's desperate financial situation, would have testified that they knew the

children were receiving inadequate care and therefore often dropped off basic necessities,

such as food and clothing.

96. Marilyn Jackson would have testified that as a result of Louis Taylor's sporadic

presence she was forced to provide for all three of her children on her own. Despite working

long hours, including double shifts lasting from 6:00 a.m. until 10:00 p.m., Ms. Jackson was

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unable to support adequately her children. Consequently, the Jacksbn family was forced to

live in public housing, which was plagued by violence, drugs, and prostitution.

97. Because his family did not have enough money to eat, Mr. Jackson's mother

often asked him to borrow food, such as sugar , flour, and bread , from neighbors. It was

approximately at this time that Shonelle began to steal things , and eventually became a gofer

for older drug dealers established in the public housing development . His sisters and mother

would have testified that while their father was absent , Shonelle tried his hardest to help

support the family by selling drugs and obtaining money so he could buy clothes and other

necessities.

98. Geraldine Taylor, Monica Taylor, Julia Taylor, Laquanda Jackson, Wanda

Jackson , and Marilyn Jackson also would have testified regarding the Jackson's desperate

financial situation . Each of them would have informed the court and the jury that, at one

point, after Shonelle and his family had been kicked out of their home, they were forced to

live with Shonelle's aunt, Geraldine Taylor. The home was cramped because Ms. Taylor was

not only housing the four members of the Jackson family, but her own family as well. The

Jackson family changed residences on no less than six occasions during Mr . Jackson's

childhood and early teenage years.

99. This unstable life caused great trauma to Mr. Jackson, as is reflected in school

records which, had they been obtained by trial counsel, would have established that in

elementary school. Mr. Jackson was missing school on a regular basis, and that by an early

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age he had begun acting out at school and getting into fights with other kids. Records would

have established that by the time that he was thirteen, Mr. Jackson had been suspended from

school numerous times and had been expelled twice.

100. In addition to a life of instability, and the resulting emotional trauma, Mr.

Jackson has consistently struggled with diminished mental capacity . Education records and

juvenile court records as well as testimony from relatives such as Thelma Owens and

teachers such as Rosalyn Jordan would confirm his borderline intellectual functioning.

101. Indeed, Thelma Owens would have testified that her family has a history of

mental deficiencies , including Marilyn Jackson ' s biological brother who is mentally retarded.

Moreover, Ms. Jackson suffers from her own mental impairments for which she received

specialized training as a youth.

102. Unlike the specialized training received by his mother, Shonelle Jackson

received no meaningful parental supervision and , therefore, he continually struggled in

school. Had counsel acquired Mr. Jackson's school records, they would have learned that

he failed two grades and the only years he consistently received grades in the B range or

above were those in which he was taking courses for the second time. Indeed, Shonelle

severely struggled in school until the ninth grade when he dropped out.

103. Soon thereafter, as documented by Department of Youth Services records, it

was determined that Shonelle was in the lowest twelve percent of sixteen year olds in terms

of intellectual functioning. As a result, he was recommended for special education services.

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104. While average intellectual functioning children also require a certain degree

of attention , family members, such as Della Jackson , Joyce Harvest, Geraldine Taylor,

Monica Taylor, and Thelma Owens, would have testified that between the drugs, lack of

financial support from Louis Taylor, and Marilyn Jackson's brutal work schedule, Shonelle

never received even the minimal amount of academic attention one would devote to an

average functioning child . Consequently , he certainly did not receive the type of specialized

and individual attention needed to compensate for his impaired intellectual capacity.

105. Moreover, Ms. Jackson's own mental impairments prevented her from

providing appropriate and meaningful guidance to Shonelle. In this regard , Mr. Jackson had

no one to whom he could turn. Family members, including Geraldine Taylor and Thelma

Owens, would have testified that along with his already diminished mental capacity , Shonelle

was never required or even encouraged to attend school by his parents.

106. As a consequence of Mr. Jackson ' s mental and emotional impairments,

individuals such as Rosalyn Jordan and Thelma Owens would have testified that he was not

as mature as other kids , that he could be easily swayed by others, and that he was unusually

vulnerable to peer pressure. In addition, his Department of Youth Services records indicated

that he had difficultly with negative peer influence.

107. Despite his susceptibility to peer pressure, testimony from family members,

including Della Jackson, Dmitri Gatson, Monica Harvest, Joyce Harvest, Geraldine Taylor,

and other community members, such as Latanya Austin, Rick Cotton, and his teacher,

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Rosalyn Jordan , would have established that Mr. Jackson has always been eager to please and

incredibly respectful towards members of society.

108. Eddie Woods and other members ofhe Trenholm Court Community, amongst

others, would have testified that Shonelle occasionally performed yard work for them.

Indeed, Shonelle has always been a hard worker who has always done well in structured

environments , such as correctional facilities.

109. As a result of his family's desperate financial situation , Shonelle grew up in

a neighborhood that was plagued by rampant drug use and accompanying violence.

110. Latanya Austin would have testified that during the developmental stage of

Shonelle's life, the neighborhood in which Shonelle grew up was infiltrated by crack-

cocaine . She would have testified that by the mid-1980s Shonelle was living' in a

neighborhood where crack was rampant and by the early - 1990s gun shots were heard on a

regular basis.

111. Indeed, Shonelle's psychological intake report from the Department of Youth

Services reveal that violence deeply touched Shonelle ' s life . At the age of fifteen, Shonelle

had one friend who died after being kidnaped and another who was murdered while being

robbed.

112. Shonelle's exposure to violence did not stop at his front door; rather, he was

continually exposed to violent activity at the hands of family members. At a very early age,

Shonelle's father, Louis Taylor, carried a knife on his person most places he went. Louis

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Taylor, was often involved in violent altercations and court records would have revealed that

on one occasion he was arrested for fighting with a police officer. Louis and Geraldine

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Taylor would have testified that on another occasion, Louis Taylor returned home with a gun

shot wound. A panicked and disturbed Geraldine Taylor began to cry when she recognized

that Louis had been shot.

113. Nor was Louis Taylor the only parent prone to violence. Marilyn Jackson and

Louis Taylor fought physically on a regular basis. Laquanda and Wanda Jackson would have

testified that every few days Marilyn Jackson and Louis Taylor became physically violent

with one another. In one particular incident, Marilyn stomped on Louis as he lay on the

ground . Thelma Owens would have testified that Marilyn often had welts , bruises , and knots

caused by Louis during their frequent fights.

114. Violence and the threat ofviolence was pervasive during Shonelle's childhood.

Often it was promulgated by his parents. For example, Geraldine Taylor, Laquanda Jackson,

Wanda Jackson, Marilyn Jackson, and Julia Taylor would have testified that Shonelle

witnessed his aunt threaten his uncle Louis with being shot when he refused to leave the

apartment on one occasion . It was in this environment of a ready resort to violence or a

threat of violence in which Nlr. Jackson grew up.

115. Nor did Marilyn Jackson and Louis Taylor spare their children violent

treatment. Laquanda and Wanda Jackson would have testified that their mother often gave

them whoopings for engaging in childish activity. Unlike his sisters, Shonelle was rarely if

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ever whooped by his mother; instead, he was thrashed by his father. Roosevelt Emerson, Jr.

would have testified Shonelle was repeatedly beaten by his father with an electric cord,

which resulted in whip marks on his arms and legs.

116. Laquanda and Wanda Jackson would have testified that the discipline affected

the children in such a way that they eventually began to engage in a routine of disciplining

each other when they had engaged in activity they thought was unacceptable.

117. Asa form of discipline, when Shonelle was young, his father and uncles would

wrestle with him as if he was an adult, often causing extreme pain and injury. Shonelle's

father would often come home drunk and physically fight or wrestle with Shonelle. These

confrontations, fueled by alcohol and drugs, were even more violent than usual.

118. Marilyn Jackson, Louis Taylor, Laquanda Jackson, Wanda Jackson, Thelma

Owens, Geraldine Taylor, Della Jackson, Julia Taylor, Monica Taylor, and Joyce Harvest

would have testified that due at least in part to his violent behavior, Louis Taylor was often

absent from the home. His sporadic presence was attributable to periodic arrests resulting

in incarceration and fights with Marilyn that led to short periods of separation.

119. Shonelle tried to fill the void left by his father by protecting his sisters and

buying his family things; however, Mr. Jackson was never able to fill the gap left by his

father's absence in his own life. Due to a confluence of factors, including his father's

absence and violence, Shonelle began socializing with individuals much older than he, and

who were regularly engaged in violent and illegal activity. His family members and friends,

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including Wanda Jackson and Keisha Young, would have testified that Shonelle joined a

gang, which included much older young men than he, when he was a teenager.

120. Eddie Woods would have testified that Shonelle spent a considerable amount

of time at his house, socializing with his children. Mr. Woods' children include Marshall

(Bay-Bay), Tyronne, and Eddie. Latanya Austin, Eddie Woods, Laquanda Jackson, Monica

Taylor, and Wanda Jackson would have testified that Shonelle was also close with Eddie

Woods' grandson, Antwain Rainer ("Cornbread"). At the time Shonelle was fifteen,

Antwain Rainer was eighteen and Marshall Woods was twenty-two.

121. Lacking a responsible male role model, Shonelle instead turned to these

individuals, as well as another individual, Tollie Redmon, who were somewhat older than

Shonelle. Neither Antwain nor Marshall were capable of providing an appropriate role

model; instead, they provided just the opposite. Monica Taylor, Laquanda Jackson, Wanda

Jackson, and Latanya Austin would have shown that Marshall and Antwain consistently

engaged in violent and illegal activity.

122. Given his pervasive exposure to violence and criminal activity, it is not

surprising that by the age of twelve, Shonelle had already acquired a gun. In addition, Mr.

Jackson began using drugs and alcohol at a very young age. Records from the Department

of Youth Services indicate that by the time that he was thirteen, Shonelle had been diagnosed

as alcohol dependent. This substance abuse was consistent throughout his life up to the time

that he was arrested for this crime. In addition to using drugs and alcohol, Dmitri Gaston,

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Laquanda Jackson, Wanda Jackson, Julia Taylor, Monica Taylor, and Keisha Young would

have testified that Shonelle became a gofer for these older gang members , selling crack and

other drugs , to make money for both himself and his family.

123. Much of the money he made selling drugs , he used to provide his sisters and

mother with necessities. Laquanda Jackson, Marilyn Jackson, Wanda Jackson, Keisha

Young, and Monica Taylor would have testified that Shonelle primarily used this money to

provide for his family. In fact, Shonelle never owned a car himself nor did he ever acquire

his own residence , but instead biked around the neighborhood.

124. Mr. Jackson's familial devotion was not limited to his immediate family.-

Dmitri Gaston, Julia Taylor, Monica Harvest, Laquanda Jackson, Wanda Jackson, Della

Jackson, Joyce Harvest, Geraldine Taylor, Betty Brawlin, Freddie Owens, Donald Collins,

Christopher Harvest, Shantay Harvest, Chakka Harvest, Decarlos Harvest, Julia Taylor,

Monica Taylor, Gary Collins, Detrick Collins, and Sonya Ringstaff all would have testified

that Shonelle loved all of them and he was well-loved by them. In addition, Laquanda

Jackson, Marilyn Jackson, Wanda Jackson, and Sonya Ringstaff would have testified that he

loves his daughter, Zekia Jackson.

125. Mr. Jackson spent a great deal of time with his family growing up. Mr.

Jackson's sisters would have testified that three of them spent an exceptional amount of time

together. Marilyn Jackson's trust of her son resulted in Laquanda and Wanda being

prohibited from leaving the house without Shonelle. Despite the age difference, Mr. Jackson

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brought his sisters to church, the community center, and the jubilees.

126. Had counsel acquired Mr. Jackson's records they would have showed that

individuals outside Mr. Jackson's family often detected his desire to provide for loved ones

and members of the community. This was confirmed by Department of Youth Services'

records.

127. Mr. Jackson's familial devotion extended beyond his immediate family to his

half-sister, cousins, aunts, and grandmothers. Growing up, Mr. Jackson spent a great deal

of time with his half-sister, cousins, and grandmothers. Shonelle spent many weekends

playing sports with his cousin, Christoper Harvest, and neighbors at his grandmother's house.

Older relatives, including Betty Brawlin, Joyce Harvest, Geraldine Taylor, and Thelma

Owens, found Shonelle respectful and well-mannered. Moreover, he was willing to lend a

helping hand when chores needed to be done. His half-sister, Dmitri, would have testified

that despite being a few years older than Shonelle, he tried to look out for her by steering her

away from nightly hangouts he knew were unsafe.

128. Such devotion extended beyond Mr. Jackson's family to other significant

persons in his life. Latrice Walker would have testified that Mr. Jackson was different from

most young men who grew up in Trenholm Court. Rather, he was respectful and considerate.

She would have recalled times when Mr. Jackson inquired into her well-being by asking after

a long day whether she had enough to eat.

129. Evidence would have also established that Mr. Jackson is well loved by those

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who know him. He has always played and continues to play an important role in his family,

and make emotional contributions to his family members, including his grandmother, aunts,

parents, siblings and his daughter. Had counsel conducted a reasonable investigation, they

would have presented testimony revealing Mr. Jackson's dedication to his family.

130. Moreover, Mr. Jackson's sense of community and spirit manifested itself

through his religious activities. Had trial counsel spoken with members of Mr. Jackson's

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family, they would have learned that Mr. Jackson attended church regularly when he was

young. Della Jackson would have testified that as a child, she used to bring him and his

sisters to church on a regular basis. Similarly, Mr. Jackson's cousins, Monica Harvest,

Christopher Harvest, Decarlos Harvest, and Chakka Harvest would have testified that

Shonelle was very close with his father's mother and they too attended church together often.

In addition, Thelma Owens would have testified that Shonelle and his sisters att ended church

with her every other weekend.

131. Nor was his religious devotion forced. Laquanda and Wanda Jackson would

have testified that when extended family members could not pick them up to attend services,

Shonelle and his sisters would walk to the local, First Baptist Church. Mr. Jackson's sisters

and members of the First Baptist Church, such as Deacon Beasley, would have testified that

Shonelle and his sisters were baptized during his pre-teen years.

132. Despite the vast amount of readily available mitigating evidence available

related to Mr. Jackson's family history, medical history, criminal history, correctional history,

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educational history and good character , trial counsel failed to adequately prepare and present

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this evidence at either the penalty or judicial sentencing phases of Mr. Jackson's trial. Had

this evidence been presented , Mr. Jackson would have been sentenced to life without

possibility ofparole. Their performance was clearly deficient and prejudicial to Mr. Jackson.

See Wiggins, 123 S. Ct. at 2543 ( Court assessed the totality of the evidence to determine that

"had the jury been confronted with this considerable mitigating evidence , there is a

reasonable probability that it would have returned with a different sentence "); Williams,

529 U.S . at 420 (stating that prejudice determination must rest on assessment of the totality

of omitted and presented evidence rather than on idea that one piece of omitted evidence

must require a new hearing); see also Collier v. Turnip, 177 F.3d 1184 (11th Cir. 1999)

(citing counsel ' s failure to present the available evidence of defendant's upbringing,

compassion , his poverty, and gentle disposition in holding counsel ' s performance

ineffective); Harris v. Duaaer, 874 F.2d 756 (11th Cir. 1989) (finding counsel's performance

ineffective and stating that jury knew little about defendant including the fact that family

members described defendant as a devoted father , husband, and brother).

133. In Mr. Jackson's case, there was a reasonable probability that but for trial

counsel's deficient performance in failing to present all the available mitigating evidence,

the judge would not have imposed a sentence of death. See Williams, 529 U.S. at 419

(stating that fundamental unfairness to the defendant does not need to be found, rather a

reasonable probability of a difference in outcome is sufficient to establish constitutionally

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ineffective assistance of counsel).

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134. The failure to present character evidence and evidence unrelated to

dangerousness was extremely prejudicial . Such evidence "may alter the jury's selection of

penalty, even if it does not undermine or rebut the prosecution ' s death-eligibility case."

Williams, 529 U.S. at 421. If the court does not acknowledge this possibility, the court fails

"to accord appropriate weight to the body of mitigation evidence available to trial counsel."

Td. (stating that even if found mitigating evidence did not overcome finding of future

dangerousness , evidence of mental health and deprived childhood "might well have

influenced the jury ' s appraisal of [defendant 's] moral culpability").

135. As a result of trial counsel's deficient performance, Mr. Jackson was

prejudiced as the judge and the jury failed to consider "the information needed to properly

focus on the particularized characteristics of this petitioner." Armstrong v. Duaer, 833 F.2d

1430, 1433 (1 lth Cir. 1987); see Collier v. Tu in, 177 F.3d 1184 (11th Cir. 1999) (finding

defendant prejudiced despite presence of several aggravating factors due to chance that jury

confronted with contrast between defendant's acts on day of the crime and his history would

not have voted for the death sentence); Harris v. Dug er, 874 F.2d 756 (11th Cir. 1989);

Johnson v. Kemp, 615 F. Supp. 355 (N.D. Ga. 1985).

2. Trial Counsel Failed to Develop and Present aPenal and Sentencin g Phase Strategy toConvince the Sentencing Authority that Lifewithout Parole was the A ro riate Sentence inthis Case.

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136. Because trial counsel had not conducted a constitutionally adequate

investigation of the circumstances of Mr . Jackson 's life, they failed to failed to develop a

defense to the death penalty . Trial counsel ' s lack of penalty phase strategy is apparent from

the record.' At the conclusion of the guilt phase , trial counsel moved for a continuance

because they intended to call probation officer Carolyn Flack as witness , but because "she

wouldn 't come in voluntarily ," and because trial counsel had failed to anticipate the

possibility of a penalty phase trial, she had not been subpoened and so she was not present

in the courtroom . In assessing whether to grant a continuance , the trial court conducted an

exparte hearing with the District Attorney - agreed to by defense counsel - in which the trial

court agreed with the District Attorney's statement that defense counsel had "known all

along , Judge , about this ," and expressed his frustration with trial counsel : "I couldn ' t agree

with you more . I'm so mad I could chew nails ." (R. 530.)8

137. Trial counsel ' s opening and closing arguments at the penalty phase, as well as

counsel's argument at the judicial sentencing hearing, were constitutionally deficient and

prejudicial . See Dobbs v. Turnip, 142 F.3d 1383, 1389 (11th Cir. 1998) (citing Penryy.

'Indeed , counsel did not even know how many jurors were required to impose a sentence oflife without parole . When discussing jury instructions , trial counsel expressed surprise at the numberof jurors needed : "Seven jurors , your honor? I always thought it was ten." (R. 578.)

'Only part of this hearing is on the record . At some point, the trial court states , "[l]et's gooff the record," and nothing else about their conversation is recorded . (R. 532.) Because defensecounsel declined to be involved in this hearing, and failed to ensure the presence of his client at allof these hearings , defense counsel did not have the opportunity to object to any improper decisions,or to effectively advocate on his client ' s behalf.

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L nau h, 492 U.S. 302, 316 (1989)). At the judicial sentencing hearing, trial counsel's

argument covered less than three pages in the transcript and consisted primarily of defense

counsel's explanation that the jury's recommendation should be given "great weight." (R.

58.)

138. Trial counsel then failed to present any additional evidence to the judge, instead

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informing the trial court that "most of the other argument that we would have on this case

has been included either in our proposed findings on what the court has heard at the penalty

phase hearing and I don't think there is any use in my going over that." (R. 11.)

139. Given that the sentencing authority --under Alabama law - was authorized to

reject the jury's verdict, trial counsel needed to marshal and present the mitigating evidence

of Mr. Jackson's violent upbringing, impoverished community, lack of a father figure or

other male remodel , mental impairments , religious influences and experiences , and familial

devotion in order to persuade the sentencing authority that the jury had reached the correct

decision when they unanimously sentenced Mr. Jackson to life without the possibility of

parole. Counsel should have then argued to both the jury and the judge that these compelling

mitigating circumstances constituted a basis for the imposition of a sentence of life without

the possibility of parole. Counsel's failure in this regard constitutes ineffective assistance

of counsel.

3. Trial Counsel Failed to Obtain and PresentIndependent Exert Witnesses at the Sentencinand Penal Phases of Mr. Jackson's Trial

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140. Trial counsel also failed to obtain and present independent expert witnesses at

the sentencing phase of Mr. Jackson's trial. Expert witnesses such as a social worker, an

investigator, and a mental health expert would have explained the likely causes of Mr.

Jackson's mental and emotional problems and how those problems were relevant both to Mr.

Jackson's defense and to his moral culpability.

141. An investigator "who has received specialized training [would have been]

indispensible [in] discovering and developing the facts [that would have been] unearthed at

trial. . . ." American Bar Association, Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases, Commentary to Guideline 4.1 (2003). As an attorney's

expertise does not extend to the area of investigation and his time is more wisely used when

focusing on the legal research, this expert would have devoted the due amount of time to

thoroughly researching and discovering all relevant mitigating evidence relating to Mr.

Jackson's life. Id.

142. A social worker or mitigation specialist would have synthesized and evaluated

the significance of the information obtained by the investigator. By compiling a psycho-

social history of Mr. Jackson, such an expert would have "analyzed the significance of the

information in terms of impact on development, including effect on [Mr. Jackson's]

personality and behavior." Id. Had a social worker or mitigation specialist been called, he

or she would have explained to the judge and the jury the multiple risk factors present in

Shonelle's life and how they affected his actions and development.

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143. A mental health expert would have gathered information relating to Mr.

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Jackson ' s familial history of mental impairments and his stunted mental and academic

development. Such an expert would then have explained the significance of Mr. Jackson's

mental impairments and the multiple ways in which they affected his life, including,

particularly, how these limitations would have rendered Mr. Jackson particularly ill-equipped

to overcome the milieu of poverty, drugs, alcohol, neglect, and violence in which Mr.

Jackson grew up.

144. An expert on drug and alcohol abuse would have testified about Mr. Jackson's

lifelong battle with alcohol and substance abuse and how his use of drugs and alcohol

impaired his mental state . This expert would have also assisted counsel in recognizing the

importance of finding , developing , and presenting evidence regarding Mr. Jackson's drug

use and alcohol abuse , as well as that of his parents and other role models . This expert could

then have synthesized this evidence for the jury and the court, and would have elucidated

how these factors resulted in an impaired and suggestible individual.

145. Trial counsel ' s failure to obtain and present independent expert witnesses at

the sentencing phase constituted deficient perfonnance that prejudiced Mr. Jackson. Such

evidence would have made it clear to both the jury and judge and that appropriate

punishment for Mr. Jackson was life without the possibility of parole. But for counsel's

deficient performance, the outcome of Mr. Jackson's trial would have been different and he

would not have been sentenced to death.

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146. Trial counsel's failure to investigate and present a compelling empathetic

portrait of Mr. Jackson to the jury and judge constitutes ineffectiveness. This performance

cannot be characterized as strategic. By failing to present a full picture of Mr. Jackson to the

jury and trial court, trial counsel "precipitated a breakdown in the adversarial process" and

violated Mr. Jackson's constitutional rights under state and federal law. Collier, 177 F.3d

at 1204. Mr. Jackson has a right, "indeed a constitutionally protected right to provide the

jury with the mitigating evidence that his trial counsel either failed to discover or failed to

offer." Williams, 529 U.S. at 420. Therefore, Mr. Jackson ' s death sentence must be

reversed.

4. Trial Counsel were Ineffective for Failing to Object tothe Method of Execution in Alabama as Cruel andUnusual Punishment

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147. Trial counsel was ineffective for failing to challenge the method of execution

used by the State of Alabama. Trial counsel failed to marshal evidence which reveals that

under the evolving standard of decency, Alabama's method of execution constitutes cruel and

unusual punishment. See, infra, issue XVII (incorporated by reference).

5. Trial Counsel Were Ineffective for Failin toObject to the Double Counting, of Robbery as anElement of the Ca ital Offense and as anAggravating Circumstance

148. Trial counsel failed to object to the double counting of robbery as both an

element of the capital offense and as an aggravating circumstance used to sentence Mr.

Jackson to death. See Gregg v. Georgia, 428 U.S. 153 (1976). Such error failed to narrow

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the class of cases eligible for the death penalty and exposed Mr . Jackson to two punishments

as a result of being convicted of a single charge . Counsel's failure to object constitutes

ineffective assistance of counsel . See, infra, issue XXIX (incorporated by reference).

6. Trial Counsel Failed to Ob'ect to the DeathSentence in this Case as Disproportionate,,- inViolation of Mr. Jackson's State and FederalRights

149.. Mr. Jackson has been convicted of a capital crime and sentenced to death.

Alabama appellate courts are required to independently review each sentence of death to

determine whether it is a disproportionate penalty based on the crime , the defendant and in

comparison to other crimes. See Pulley v. Harris, 465 U.S. 37 (1984). Based on the facts

of this case , the death penalty is disproportionate , and trial counsel ' s failure to object to the

imposition of the death penalty on this basis constitutes ineffective assistance of counsel.

See infra, issue V (incorporated by reference).

7. The Cumulative Errors of Mr . Jackson ' s TrialCounsel Denied Mr . Jackson EffectiveRepresentation at the Penal and SentencingPhases of His Capital Trial

150. The errors of counsel during the penalty and sentencing phase, as enunciated

above, denied Mr. Jackson his right to a fair trial and accurate sentence determination. The

failure of counsel to adequately investigate, prepare, and present evidence in support of a

sentence of life without parole resulted in the sentencing authorities' override of the jury's

life sentence, and resulted in Mr. Jackson's sentence of death. But for trial counsel's

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ineffective representation during the penalty and sentencing phases , Mr. Jackson would be

sentenced to life in prison without parole . See Kyles v . Whitley, 514 U. S. 419 (1995) (errors

considered cumulatively); Derden v . McNeel , 978 F .2d 1453 (5th Cir. 1992) (same). These

errors constitute a violation of Mr . Jackson 's rights under the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution , the Alabama Constitution and

Alabama law. Wig, ig ns v . Smith , 123 S. Ct . 2527 (2003 ); Williams v. Taylor, 120 S. Ct.

1495 (2000 ); Strickland v. Washin gton , 466 U.S . 668 (1984 ). This Court must reverse Mr.

Jackson ' s sentence of death , and grant a new penalty and sentencing phase of Mr. Jackson's

capital trial.

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II. JUROR MISCONDUCT DURING THE TRIAL DEPRIVED MR.JACKSON OF HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS, ANDA RELIABLE SENTENCE DETERMINATION

151. Mr. Jackson's rights to a fair trial, due process and a reliable sentencing

determination were violated by the juror misconduct that occurred in this case . See Irwin v.

Dowd, 366 U.S. 717, 722 (1961) ( criminal defendant guaranteed right to fair trial by panel

of impartial , indifferent jurors). The fact that this is a capital case underscores the need for

a trial with a fair and impartial jury. As the Supreme Court stated in Woodson v. North

Carolina, 428 U.S. 280 ( 1976), "the penalty of death is qualitatively different from a sentence

of imprisonment , however long.... Because of that qualitative difference , there is a

corresponding difference in the need for reliability in the determination that death is the

appropriate punishment in a specific case ." Id. at 305.

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152. Mr . Jackson ' s right to a fair and impartial jury was violated due to several

jurors' failure to respond truthfully to multiple questions on voir dire. When a juror fails to

truthfully answer questions on voir dire , the defendant is deprived of his right to wisely

exercise peremptory strikes. Ex parteO'Leary , 438 So. 2d 1372 , 1373 (Ala. 1983); Ex pane

Ledbetter, 404 So . 2d 731 , 733 (Ala . 1981); Tomlin v. State, 695 So . 2d 157 (Ala. Crim.

App. 1996); see also United States v. Perkins, 748 F.2d 1519 , 1529 (111" Cir. 1984).

153. When asked on voir dire , several jurors failed to disclose that they were

familiar with the Smiley Court area , where the crime took place or the area where Mr.

Jackson ' s mother lived . These jurors, including jurors David Davis, Ashley Dickey Walden,

William Davis, Bernice Ethridge , James Garner , Monroe Clark and Coatest Carter , were all

familiar with these areas prior to the trial, but did not disclose this during voir dire. In fact,

Monroe Clark is a retired postal worker who, prior to trial, delivered mail to the Smiley Court

area and to the area where the accomplices lived . He did not disclose this information when

asked during voir dire.

154. Additionally, several jurors failed to disclose that they knew prosecutors, the 1

judge, or other individuals associated with Mr. Jackson's case. Jurors David Davis, William

Davis and Robert Hodgson all knew Judge Gordon but did not disclose this information on

avoir dire . Also, juror Jan Burkes did not reveal to the court that her cousin is Judge Gillis. 2,

Additionally , Robert Hodgson failed to disclose , when asked on voir dire , that he knewDi

Montgomery County District Attorney , Ellen Brooks . Had these jurors disclosed this

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information, these jurors would likely have been removed from Mr. Jackson's jury venire.

Additionally, juror Ashley Dickey Walden failed to disclose that she has several friends in

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the Montgomery County Police Department when asked during voir dire.

155. One of the critical issues at Mr . Jackson ' s trial was who fired the shot that

killed Mr. Moore . Several of the jurors failed to disclose that they owned guns in response

to a question about this. Juror Robert Hodgson failed to report that he owned a gun at the

time of trial. " Additionally, juror Mary Jackson owns a .380 , but did not disclose this 7

information on voir dire. This information was critical to counsel ' s ability to select a fair and

impartial jury to try Mr. Jackson ' s case , and without it, Mr . Jackson ' s rights were violated.

156. The jurors were instructed that their function during the guilt phase was only

Juror Barbara Endsley had made up her mind that Mr. Jackson should be sentenced to death

at the close of the guilt phase, in violation of these instructions and Mr. Jackson's rights to

a fair and impartial jury at sentencing.

to determine whether or not Mr. Jackson was guilty of capital murder. (R. 41.) Nonetheless,

157. Additionally , jurors William Davis and Mary Jackson did not reveal that they CA

each have relatives or close friends in law enforcement . Juror Monroe Clark did not reveaa 1 Q

that he had heard about the case before trial . Jurors Coatest Carter, Jan Burkes and Jarej \ t

Garner did not reveal that they had previously sat on a jury . Jan Burkes and Robert Hodgson \ ^.

had been or had family members who had been prior victims of crime , but failed to disclos6

this information on voir dire . Finally, juror Mary Jackson also failed to reveal that she had \3

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158. The failure of these jurors to respond to critical questions posed by defense

counsel on voir dire violated Mr . Jackson ' s right to due process and a fair and impartial jury

under the Fifth, Sixth, Eighth, and Fourteenth Amendments ofthe United States Constitution,

the Alabama Constitution, and Alabama State law. See Tomlin v. State, 695 So. 2d 157, 169

(Ala. Crim. App. 1996); McDonough Power Equipment v. Greenwood, 464 U.S. 548, 556

(1984) (constitutional violation when jurors deliberately deceive court about matter which

would constitute valid basis for challenge of juror).

159. Additionally, Mr. Jackson's right to a fair and impartial jury was violated by

the jury's consideration of extraneous evidence during deliberations . A criminal defendant

has the right to a fair and impartial jury. Jurors , in order to remain impartial, must be

guarded in their deliberations from outside influences that may unlawfully affect the verdict.

Ex arte Reed, 547 So. 2d 596, 597 (Ala. 1989); Miles v. State, 75 So. 2d 479, 672 (Ala.

1954). Federal and state law require that the verdict and sentence be based on the evidence

developed at trial, and only upon such evidence. Turner v. Louisiana, 379 U.S. 466, 472

(1965); Remmer v. United States, 347 U.S. 227, 229 (1954); Ex arte Troha, 462 So. 2d

953, 954 (Ala. 1984).

160. Mr . Jackson's right to a fair and impartial trial was violated when one or more

jurors , including juror JanBurkkees, did investigation outside the scope of the jury room and

visited the crime scene and then shared these findings with other members of the jury,

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including Cathy Bullock, Catrina Buggs, David Davis, William Davis, Barbara Endsley,

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Bernice Ethridge, James Garner, Mary Jackson , Monroe Clark, Coatest Carter, and Ashley

Dickey Walden . This crime scene investigation constituted unauthorized independent

investigation and was impermissible . ee United States v . Martinez, 14 F.3d 543 (11th Cir.

1994); Ex parte Potter, 661 So. 2d 260, 262 (Ala. 1994) (juror's visit to crime scene to view

the width of a street in a criminally negligent homicide case might have affected the jury's

verdict and warranted reversal of conviction).

161. Additionally, one or more jurors, including William Davis, David Davis, James

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Garner, Monroe Clark, performed outside experimentation by testing the bullets to discover

if the type of gun in Mr. Jackson' s possession at the time of his arrest could have fired the

bullet that killed the victim . These discoveries were then passed along to the jury members,

including Cathy Bullock , Jan Burkes , Catrina Buggs, David Davis , William Davis , Barbara

Endsley, Bernice Ethridge, James Garner, Mary Jackson, Monroe Clark, Coatest Carter, and

Ashley Dickey Walden, tainting the jury's determination by exposing them to extraneous

information. Ex parte Thomas, 666 So. 2d 855 (Ala. 1995) (juror putting on pants defendant

had been wearing at the time of arrest , having another juror bind his hands and attempt to

reach into his pockets to determine whether it was possible for handcuffed defendant to

remove cocaine from his pocket was reversible error); Reed v. State, 547 So. 2d 596 (Ala.

1988) (juror conducting home experiment was juror misconduct); Ex parte Lasle , 505 So.

2d 1263 (Ala. 1987) (several jurors conducting home experiment warranted reversal.); see

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also United States_v. Castello, 526 F. Supp. 847 (W.D. Tex. 1981) (court reversed where

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prejudice resulted when juror fired weapon into an object over weekend and informed other

jurors of results).

162. "When it cannot be absolutely proven that extraneous information obtained

through juror misconduct [] in no way affected the appellant, then a new trial is mandated."

Williams v. State, 570 So.2d 884, 887 (Ala. Crim. App. 1990). The extraneous information

obtained by these jurors most certainly influenced the jurors' guilt decision, and thus Mr.

Jackson is entitled to a new trial.

163. The conduct of the jurors in this case deprived Mr. Jackson of his right to be

tried by an impartial jury, his right to have questions answered by prospective jurors to enable

his counsel to exercise their peremptory strikes and to challenge jurors for cause, and his

rights to due process, a fair trial, an impartial jury, equal protection, and a reliable sentencing

protoected by the Fifth. Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution, the Alabama Constitution, and Alabama law.

III. THE STATE WITHHELD FAVORABLE EVIDENCE FOR THEDEFENSE THUS VIOLATING MR. JACKSON'S FEDERAL ANDSTATE RIGHTS.

164. The State withheld exculpatory information and information favorable to the

defense, despite defense counsel's request for such information. (C. 20, 33, 50.) The State's

suppression of this material violated Mr. Jackson's rights under the Fifth, Sixth, Eighth, and

Fourteenth Amendments of the United States Constitution, the Alabama Constitution. and

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Alabama State law.

165. In Brady v. Maryland , 373 U.S. 83 (1963 ), the United States Supreme Court

stated that "the suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution ." Id. at 87.

166. In this case , the State failed to turn over to defense counsel the evidence of -

among other things - deals or agreements that had been entered into between the prosecution

and the co-defendants who testified for the State . Evidence favorable to the defense includes

evidence that would affect the jury ' s determination of the credibility ofthe witnesses. Gi lio

v. United States, 405 U.S. 150 (1972 ). The mandate to turn over favorable evidence extends

to both the determination of guilt or innocence and the sentencing proceeding . Brady, 373

U. S. 83, Ex parte Monk , 557 So. 2d 832 (Ala. 1989). The withholding of favorable evidence

is grounds for the reversal of a death sentence . See Brady, 373 U. S. 83; Ex parte Womack,

541 So . 2d 47 (Ala. 1988).

167. Additionally , the evidence introduced at trial and in the records that Mr.

^'1 Psi = NOT c C )7L-Jackson has received strongly indicates that additional discoverable material exists:

(a) In Gerard Burdette's April 26, 1997 statement to Corporal D. Cunningham, hestated that he thought an individual named P.J. was responsible for the victim'sdeath. Notably, Mr. Burdette did not reference P.J.'s real name nor did hemention the name Jay. However, while interviewing witness Lacrema Mooreon April 26, 1997 , Detective A.J. Signore suggested that P.J.' s real name isPatrick Stinson. He also suggested that someone named Jay hung around withan individual named "Big Leon." None of the offense reports or statementsprovided by the District Attorney's office explain how Detective Signore

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learned P .J.'s real name or obtained information referring to an individualnamed Jay . This suggests that some investigation occurred which was notdisclosed to Mr. Jackson.

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(b) In her April 27, 1996 statement, Victoria Moss, one of the few witnesses at thescene of this incident , drew a map of the crime scene for Detective Signore.Mr. Jackson' s trial counsel was never provided with a copy of the map drawnby Ms. Moss for Detective Signore., QKt,)l

(c) As indicated in a April 28 , 1997 offense report , after witnessing three African-American men on his property, A.C. Porterfield contacted Deputy Smithy atthe Montgomery County Sheriffs Department. Mr. Jackson's trial counselnever received any information from the Montgomery County SheriffsDepartment relating to this complaint. Wes'?

(d) In his statement to law enforcement officials , Antonio Barnes recalledreturning with Shonelle Jackson , and an individual named Roderick Crawford(a.k.a. Fido), to Old Hayneville Road the day after the incident. Lawenforcement officials interviewed many individuals named by the co-defendants as people they came in contact with after the alleged incident.However, no offense reports relating to Roderick Crawford or interviews withMr. Crawford were given to Mr. Jackson's trial counsel.y.'*-,,^.

(e) Members of law enforcement impounded both cars involved in this incident.These cars were examined by officials ; however , Mr. Jackson never receivedthe results of any tests or examinations that were performed on the inside ofthese automobiles . It is unreasonable to believe that the State would not haveconducted any tests of the interior of either car in order to ascertain whetheror not the seats or upholstery contained evidence of blood , hair , or other fibers,especially because Shonelle Jackson was initially charged with shooting intothe car. 1Jvk

(f) Other gaps in the evidence indicate that the State has not provided all of therequired evidence to Mr. Jackson . f"r. Jackson ' s co-defendants understoodthere to be a verbal agreement by which they would receive lesser sentencesin exchange for their testimony against Shonelle Jackson . Nonetheless,statements to at least one co -defendant's trial judge and statements made bythat court indicate that the co-defendants ' sentencing was deeply intertwinedwith the State ' s having already secured a conviction and sentence againstShonelle Jackson . Evidence of these deals between the co-defendants and the

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-,r,,QA ^r`' E4prosecution were not disclosed to Mr . Jackson ' s trial counsel. 1>

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(g) Sometime after this crime occurred, law enforcement officials questioned Mr.Jackson ' s girlfriend at the time , Latrice Walker . Not only did they speak withher, they asked her to accompany them to her former residence . No evidenceor information obtained during these meetings were provided to Mr. Jackson'strial counsel. cep

168. Due to the State ' s withholding of the above evidence , as well as other evidence

material to Mr. Jackson' s case , defense counsel did not have the ability to fairly challenge

the State 's evidence at both the guilt and penalty phase of Mr. Jackson' s trial . The State's

violation of Mr. Jackson ' s right to due process necessitates a reversal of Mr . Jackson's

conviction and death sentence.

IV. THE IMPOSITION OF THE DEATH PENALTY ON ONE WHO ISMENTALLY RETARDED VIOLATES THE EIGHTH ANDFOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION.

169. Application of the death penalty to, and execution of, a mentally retarded

person violates the Eighth and Fourteenth Amendments to the United States Constitution, the

Alabama Constitution and Alabama law. Atkins v. Virrginia, 536 U.S. 304 (2002). In Atkins,

the United States Supreme Court specifically held:

We are not persuaded that the execution of mentally retardedcriminals will measurably advance the deterrent or theretributive purpose of the death penalty . Construing andapplying the Eighth Amendment in the light of our "evolvingstandards of decency ," we therefore conclude that suchpunishment is excessive and that the Constitution "places asubstantive restriction on the State 's power to take the life" of amentally retarded offender.

Atkins, 536 U.S. at 321. The Court emphasized that while mentally retarded persons

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"frequently know the different between right from wrong and are competent to stand trial,"

because of their impairments , "by definition they have diminished capacities to understand

and process information , to communicate , to abstract from mistakes and learn from

experience , to engage in logical reasoning , to control impulses, and to understand the

reactions of others." Id.

170. In determining whether an individual is mentally retarded the Court looked to

the following as a generally accepted definition of mental retardation : "significantly

subaverage intellectual functioning (Criterion A) that is accompanied by significant

limitations in adaptive functioning in at least two of the following skill areas:

communication , self-care , home living, social/interpersonal skills, use of community

resources , self-direction , functional academic skills, work , leisure , health, and safety

(Criterion B). The onset must occur before age 18 years. (Criterion C)." Atkins, 536 U.S.

304 n .3 (citing American Psychiatric Association, Diagnostic and Statistical Manual of

Mental Disorders 41 (0 Ed. 2000)).

171. As documented in records from the Department of Youth Services, Mr. Jackson

was diagnosed with borderline intellectual functioning at the age of fifteen . School records

- introduced into evidence at the suppression hearing held in 2001 - support this diagnosis.

Mr. Jackson failed both the first and third grade, and repeatedly made D's and F's throughout

his school career, which ended in the ninth grade. (Supp. C.R. 60.) Additionally, the

testimony at the suppression hearing revealed that Mr. Jackson was a "low achiever," (Supp.

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R. 67), and eager to please, (Supp . R. 67). All of these descriptions are consistent with an

individual who is mentally retarded.

172. Moreover, records of the Alabama Department of Corrections in 1997 DO*)QWI

establishes that Mr. Jackson received an Full Scale IQ score of 75 on a Beta II Test.

173. Additionally, investigation reveals that Mr. Jackson's mother, Marilyn Jackson,

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is mentally impaired and at some point in her youth resided at the Elks Memorial Center in

Chisholm, Alabama, through the State Department of Mental Health and/or the State

Department of Rehabilitation. A family history of mental retardation has been identified as

a possible predisposing factor to mental retardation in a particular individual. See Mental

Retardation: Definition, Classification, and Systems of Supports, American Association on

Mental Retardation, 10` ed. 2002, at 123-41.

174. This evidence establishes that Mr. Jackson meets the definition of mental

retardation identified by the Atkins Court and as such, his death sentence violates the Eighth

and Fourteenth Amendments.

V. THE DEATH SENTENCE IN THIS CASE IS DISPROPORTIONATE,IN VIOLATION OF MR. JACKSON'S STATE AND FEDERALRIGHTS

The American Association of Mental Retardation and the American Psychiatric Associationboth define subaverage intellectual functioning to include individuals with IQ's of between 70 and75 and below. See American Association on Mental Retardation, Mental Retardation: DefinitionClassification and Systems of Supports, 58-59 (10" ed. 2002); American Psychiatric Association,Diagnostic and Statistical Manual of Mental Disorders Text Revision 41 (4" ed. 2001).

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175. Mr . Jackson has been convicted of a capital crime and sentenced to death.

Alabama appellate courts are required to independently review each sentence of death to

determine whether it is a disproportionate penalty based on the crime, the defendant and in

comparison to other crimes . See Pulley v. Harris, 465 U . S. 37 (1984 ). Based on the facts

of this case , the death penalty is disproportionate.

176. Mr . Jackson was just over 18 years old at the time of the crime. See Eddinas

v. Oklahoma, 455 U.S. 104, 115 n.l 1 (1982)("crimes committed by youths may be just as

harmful to victims as those committed by older persons , but they deserve less punishment

because adolescents may have less capacity to control their conduct and to thing in long-

range terms than adults ."). Moreover, because none of the other codefendants received the

death penalty, the death penalty in this case is disproportionate to others who participated in

the crime . The application of the death penalty must be narrowed to an ascertainable and

distinct class of offenses.

If a State has determined that death should be an availablepenalty for certain crimes, then it must administer that penaltyin a way that can rationally distinguish between those indi-viduals for whom death is an appropriate sanction and those forwhom it is not.

Spaziano v. Florida, 468 U.S. 447, 460 (1984). There were three other people involved in

the crime for which Mr. Jackson was sentenced to die. All three of these codefendants were

given the opportunity and did plead to lesser offenses than capital murder. Antonio Barnes,

who was involved in the robbery and as the trial court acknowledged in its sentencing order,

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may actually be responsible for shooting and killing Mr. Moore, was sentenced to twenty-five

years. Eric Williams, another co-defendant who was also involved in the robbery, and as

established by his own testimony, shot a gun at the crime scene, was sentenced to life with

the possibility of parole. A third person, Christopher Rudolph, who was also involved in the

crime was sentenced to twenty years.

177. There is no adequate explanation for such a disparity in sentencing that meets

the Eighth Amendment's requirement that the death penalty be applied with some rationality

and review ability. Luck of the draw does not and cannot explain why Mr. Jackson is facing

death while three other people involved intricately involved in the crime are not. Spaziano

v. Florida, 468 U.S. 447, 460 (1984). Mr. Jackson's sentence violates his rights to due

process, a fair trial and a proportionate sentence protected by the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution, the Alabama Constitution and

Alabama law.

VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BYFAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDEDOFFENSE OF ROBBERY.

178. Mr. Jackson's jury convicted him of murder "during a robbery." The trial court

precluded Mr. Jackson from presenting evidence which supported his theory ofthe case: that

the motive for the killing was retaliation for a drug deal and that the killing did not occur

"during a robbery." Although the State's evidence showed that the victim was killed and that

the victim's car was stolen, the State's evidence also showed that the car was stolen only as

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an "afterthought" and that the robbery was thus a separate crime from the murder.

179. Under Alabama law, to obtain a conviction of capital murder, the state had the

burden of proving that the murder in this case took place "during" a robbery. It is well

established that a defendant is entitled to a charge on a lesser included offense if there is any

reasonable theory from the evidence that would support the position. Fletcher v. State, 621

So. 2d 1010, 1018 (Ala. Crir. App. 1993) ( citing Exparte Oliver, 518 So. 2d 705, 706 (Ala.

1987)); see also Ex parte McCall, 594 So. 2d 628, 628 (Ala. 1991); Fulghum v. State, 277

So. 2d 886 (Ala. 1973); Starks v. State , 594 So. 2d 187, 195 (Ala. Crim. App. 1991);

Connolly v. State, 500 So. 2d 57, 65 (Ala. Crim. App. 1985).

180. In the death penalty context, the United States Supreme Court has mandated

that capital juries be given the option of convicting defendants of lesser included offenses

because the failure to do so removes the "third option" from the jury, and thus increases the

risk of unwarranted convictions. Beck v. Alabama, 447 U.S. 625, 638 (1980). The Court

of Criminal Appeals has reiterated the importance of lesser included offenses in capital cases

in Connolly, 500 So. 2d at 66 (citing Spaziano v. Florida, 468 U.S. 447, 455 (1984)). The

trial court in this case never gave the jury the third option of convicting Mr. Jackson of

murder and robbery as separate crimes.

181. Alabama law is clear: a robbery committed as a "mere afterthought" and

unrelated to the murder will not sustain a conviction under Alabama Code § 13A-5-40(a)(2)

for the capital offense of murder-robbery. Ex 12arte Johnson, 620 So. 2d 709, 712 (Ala. 1993)

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("under Alabama law, a robbery committed as a `mere afterthought' and unrelated to the

murder will not sustain a conviction for the capital offense of robbery murder").

109. The trial court's failure to allow the jury the choice of the lesser included

offense of robbery resulted in an improper conviction that violated Mr. Jackson's rights

under the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution,

the Alabama Constitution and Alabama law.

VII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BYDENYING MR. JACKSON A CONTINUANCE TO SECURE ACRITICAL WITNESS.

182. Prior to trial, Mr. Jackson moved the trial court for a continuance to secure a

material witness. The witness was material because, according to the state, he was the only

eyewitness to the crime other than the defendant and co-defendants. (R. 19-20) Moreover,

the witness gave a statement to the police which supported Mr. Jackson's defense in this case

that the motive for the killing was retaliation for a bad drug deal and that the killing did not

occur during a robbery. (C. 87-96) The court denied Mr. Jackson's motion for continuance,

(C. 100), and in doing so, committed reversible error under Alabama law. Ex parte

Saranthus, 501 So. 2d 1256 (Ala. 1986). Moreover, the trial court's failure to grant a

continuance contravened the United States Supreme Court's warning that the swift

administration of justice should never override a defendant's right to due process and a fair

trial. See Powell v. Alabama, 287 U.S. 45, 59 (1932).

183. In this case the trial court abused its discretion in denying Mr. Jackson's

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pretrial motion for a continuance to secure a material witness as all three Saranthus factors

were met. The expected witness was unquestionably material and competent. The witness,

Gerard Burdette, was an eyewitness to the shooting, (R. 19), and gave a statement to the

police which supported Mr. Jackson's defense theory. Jackson made "a good-cause

showing" as to the probability that Burdette would testify if the case were continued. See

Pilley v. State, 789 So. 2d 870 (Ala. Crim. App. 1998) (overruled on other grounds) (moving

party must make a "good-cause showing" of the three grounds that support the granting of

a motion of continuance).

184. By denying Mr. Jackson's motion for a continuance, the trial court erroneously

excluded potentially exculpatory evidence. Brady v. M land, 373 U.S. 83 (1963). Mr.

Burdette's testimony would have supported a finding by the trial court that the victim was

a participant in the crime, which would have constituted a statutory mitigating circumstance

under Alabama law. ALA. CODE § 13A-5-51 (3) (1975).

185. Mr. Jackson met all three of this Court's requirements for obtaining a

continuance in order to secure a missing witness. The trial court's failure to grant a

continuance deprived Mr. Jackson of his rights to due process, to present a defense, a fair

trial, and a reliable sentence protected by the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution, the Alabama Constitution, and Alabama law.

VIII. THE TRIAL COURT IMPROPERLY LEFT THE COURTROOMWHILE THE JURY WATCHED MR. JACKSON'S VIDEOTAPEDSTATEMENT.

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186. "There can be no court without a judge, and his presence, as the presiding

genius of the trial , is as essential at one time as another." Smith v. State , 158 So . 808, 811

(Ala. 1935) (citation and quotation omitted). Mr. Jackson had a fundamental right to have

the trial judge be present during his capital trial. See Heflin v. United States, 125 F. 2d 700

(5`h Cir. 1942) ("Neither the stage of the proceeding, the length of or reason for the departure,

nor the judge's proximity to the courtroom has been viewed as a factor which mitigates the

harm created by the judge's absence.") Yet, during Mr. Jackson's capital trial, the judge left

the courtroom while the jury watched a videotaped statement of Mr. Jackson. (R. 524-25.)

187. The trial judge, essential to the proceedings, relinquished judicial control and

refused to "see that the trial proceed[ed] in an orderly manner and in accordance with law"

solely because he had seen the evidence before. Smith,158 So. at 8 10-11. This, in and of

itself, constitutes reversible error. See Brown v. State, 1538 So. 2d 833, 836 (Fla. 1989)

(holding that the absence of the judge when a jury communication is received and answered

is reversible error despite appellant's failure to ol?ject).Moreover, the court forced Mr.

Jackson to rely upon a court reporter to ensure that the trial proceeded in accordance with

law. Smith, 158 So. at 811. The trial judge's absence during Mr. Jackson's capital trial

violated Mr. Jackson's right to due process, a fair trial and reliable sentencing protected by

the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the

Alabama Constitution and Alabama law.

IX. THE STATE IMPROPERLY OBTAINED MR. JACKSON'SCONVICTION BY UNCORROBORATED ACCOMPLICE

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TESTIMONY.

188. The state 's robbery case rested on the testimony of three accomplices,

individuals who themselves were indicted for the same crime of capital murder , individuals

who all hoped to gain something by testifying, and individuals who were housed together in

the Montgomery County Jail prior to the trial. This testimony with respect to robbery

remained wholly uncorroborated by any other evidence.

189. Under Alabama law, such uncorroborated testimony is insufficient to convict

Mr. Jackson of capital murder . See Ala . Code § 12-21-222 (1975). Because no question

exists as to whether these individuals were accomplices in the alleged robbery of Mr.

Moore ' s car, Alabama law requires that their testimony be corroborated . See Leitner v. State,

672 So. 2d 1371 (Ala. Crim. App. 1995) (state must present other evidence tending to

connect defendant with offense to allow consideration of accomplice ' s testimony).

190. Under Alabama law, one accomplice cannot corroborate another accomplice's

testimony to support a felony conviction. Knowles v. _State, 204 So. 2d 506 (Ala. 1967).

Accordingly, the testimony of Antonio Barnes, Eric Williams and Christopher Rudolph

cannot be used to implicate Mr. Jackson in the crime , instead corroborating evidence must

be provided by other sources.

191. Moreover, the trial court failed to instruct the jury about the accomplice

corroboration requirement. This was a question of fact for the jury, and without such

instructions, the jury could not have reliably determined whether the accomplice testimony

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of these witnesses was in fact corroborated by outside evidence . See Gurley v. State , 639 So.

2d 557, 561 (Ala. Crim. App. 1993); In re Winship, 397 U.S. 358 (1970) ("Proof beyond

reasonable doubt is required to establish guilt of criminal charge .") Mr. Jackson 's conviction

and death sentence were thus achieved in violation of his rights to due process, a fair trial and

a reliable sentencing protected by the Fifth , Sixth , Eighth and Fourteenth Amendments to the

United States Constitution, the Alabama Constitution and Alabama law.

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X. THE STATE ' S USE OF ITS PEREMPTORY CHALLENGESDISCRIMINATED ON THE BASIS OF RACE AND GENDER.

192. This Court must remand Mr. Jackson 's case to the trial court for a hearing to

determine whether the State discriminated on the basis of gender and race in its use of

peremptory strikes. At Mr. Jackson's trial, there was a prima facie case of discrimination in

violation of Batson v. Kentucky, 476 U.S. 79 (1986), and J .E.B. v. Alabama, 511 U.S. 127

(1994). Mr. Jackson is black. There were 42 prospective jurors on Mr . Jackson 's jury venire,

of which 25 were female and 19 were black . The prosecutor had 15 peremptory strikes, of

which he used 8 to remove women and 8 to remove blacks. In overruling defense counsel's

timely objection under Batson and J.E.B. (by reference to Batson 's progeny), the trial court

committed reversible error . (R. 156.)

193. In Ex parte Thomas, 659 So. 2d 3 (Ala. 1994), the Alabama Supreme Court

held that a prima facie case of discrimination can be made by showing that the prosecution

used a large number of its strikes to remove blacks, notwithstanding the fact that a larger

percentage of blacks sat on the jury than sat on the venire. Id. at 8; see also Alexander v.

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State, 673 So. 2d 791 (Ala. Crim. App. 1995) (principles of Batson and its progeny extended

to gender discrimination). In addition, there was a lack of meaningful voir dire and the

district attorney for Montgomery County has a history of racial discrimination in jury

selection. See,a e.g., Ex parte Yelder, 630 So. 2d 107, 109 (Ala. 1992); Ex pane Bird, 594 So.

2d 676, 681 (Ala. 1991); Parker v. State, 568 So. 2d 335 (Ala. Crim. App. 1990); Powell v.

State, 548 So. 2d 590 (Ala. Crim. App. 1988); Williams v. State, 548 So. 2d 501 (Ala. Cr.

App. 1988); Acres v. State, 548 So. 2d 459 (Ala. Crim. App. 1987).

194. The trial court erred by not requiring the state to articulate its reasons for

striking women and blacks from Mr. Jackson's jury and thus violated his rights to due

process, a fair trial, equal protection and a reliable sentencing protected by the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama

Constitution and Alabama law.

XI. THE TRIAL COURT'S REASONABLE DOUBT INSTRUCTION WASUNCONSTITUTIONAL.

195. In Cage v. Louisiana, 498 U.S. 39 (1990), the United States Supreme Court

reversed a conviction because the trial court gave an improper reasonable doubt instruction.

The trial court in Cage erroneously defined "reasonable doubt" as "an actual substantial

doubt" and "such doubt as would give rise to a grave uncertainty," and indicated that in order

to convict the jury need not find guilt to "an absolute or mathematical certainty," but only to

a "moral certainty." Id. at 364. Since Cage, courts must reverse convictions "where there is

a reasonable likelihood that the jury understood the instruction to allow conviction based on

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proof insufficient to meet the Winship standard ." Victor v . Nebraska, 511 U. S. 1 , 6 (1994).

196. In Mr . Jackson ' s case, the court instructed that "proof beyond a reasonable

doubt is proof of such a convincing character that you will be willing to rely and act upon it

without hesitation in the most important ofyour personal affairs ." (R. 85.) Similar to the trial

this court also told the jury that the State need not prove Mr. Jackson ' s guiltcourt in Ca

"to a mathematical certiant[y]." (R. 85 .) These instructions, in addition to the other

instructions , lowered the burden of proof.

197. The problem was exacerbated by the court ' s instruction that "a reasonable

doubt is a doubt for which you can give a reason ." (R. 84.) Such an instruction improperly

suggests that even if the state 's proof had not persuaded a juror , the resulting doubt would not

be regarded as "reasonable " unless the juror were able to assign a reason to it.

198. In its entirety , the trial court 's reasonable doubt instruction created a reasonable

likelihood that the jury would convict on proof insufficient to meet the Winship standard.

It therefore violated Mr . Jackson ' s right to due process , a fair trial and a reliable sentencing

determination protected by the Fifth, Sixth, Eighth , and Fourteenth Amendments to the

United States Constitution , the Alabama Constitution , and Alabama state law.

XII. THE TRIAL COURT IMPROPERLY ADMITTED PHOTOGRAPHSTHAT SERVED ONLY TO INFLAME AND PREJUDICE THE JURY.

199. Photographs or videotapes that "serve little or no purpose except to arouse the

passion, prejudice, or sympathy ofthejury" should be excluded from evidence. Qtt v. Smith,

413 So. 2d 1129, 1132 (Ala. 1982). The introduction of cumulative and prejudicial

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photographs is not only a violation of state law, but also infringes on Mr. Jackson's rights to

due process and a fair trial. Futch v. Dugger, 874 F.2d 1483, 1487 (11th Cir. 1989); Osborne

v. Wainwright, 720 F.2d 1237, 1238 (11th Cir. 1983); Dickson v. Wainwright, 683 F.2d 348,

350 (11th Cir. 1982). At Mr. Jackson' s trial , the state introduced pictures of the victim after

he was killed. (R. 191.) Showing the jury these slides and pictures seriously prejudiced Mr.

Jackson.

200. In admitting such evidence, the trial court violated Mr. Jackson's rights to due

process, a fair trial and a reliable sentencing guaranteed by the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and

Alabama state law.

XIII. THE TRIAL COURT IMPROPERLY GRANTED THE STATE'SCHALLENGES OF JURORS FOR CAUSE

201. In Witherspoon v. Illinois, 391 U.S. 510 (1968), the United States Supreme

Court held that it was unconstitutional to exclude venire members for cause when they

expressed general objections to the death penalty. Id. at 522. The standard for determining

whether a prospective juror may be excluded for cause because of his or her views on capital

punishment is whether the juror's views would "prevent or substantially impair" the

performance of his or her duties as a juror in accordance with instructions and his or her oath.

Wainwright v. Witt 469 U.S. 412, 424 (1985); see also Brownlee v. State, 545 So. 2d 151,

155-56 (Ala. Crim. App. 1988). At Mr. Jackson's trial, jurors that were struck indicated they

could follow the law even though they had opinions about the death penalty. Because they

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could follow the law, the trial court erred in granting the state's challenge for cause as to

these jurors . Wainwright v. Witt, 469 U.S. 412, 424 ( 1985).

202. Moreover, the use of strikes for cause or the use of peremptory strikes to

exclude jurors with reservations about the death penalty is unconstitutional because jurors

with reservations about the death penalty possess a commonality that makes them a

cognizable group . Although in Lockhart v. McCree , 476 U.S. 162 (1986 ), the Court did not

find that such jurors are a cognizable group under the Sixth Amendment , the Court has

embraced a broader definition of cognizability under the Equal Protection Clause of the

Fourteenth Amendment in the Batson context . See, ems, Powers v. Ohio, 499 U.S. 400

(1991); J.E.B. v. Alabama, 511 U.S. 127 (1994).

203. The exclusion of these jurors violated their rights to equal protection as well

as Mr . Jackson's rights to due process , equal protection , a jury comprised of a fair cross

section of the community , an impartial jury , a fair trial and a reliable sentencing guaranteed

by the Fifth , Sixth, Eighth , and Fourteenth Amendments to the United States Constitution,

the Alabama Constitution , and Alabama law.

XIV. THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE THATDID NOT HAVE A PROPER CHAIN OF CUSTODY.

204. The trial court erred when it admitted evidence without establishing a proper

chain of custody. As this Court is well aware , evidence is not admissible at trial when there

is a "missing link" in the chain of people who handle an evidentiary item. Exparte Holton,

590 So. 2d 918 (Ala. 1991); Russaw v. State, 624 So. 2d 234 (Ala. Crim. App. 1993); see

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also Rochin v. California, 342 U.S. 165 (1952) ("Under the Due Process Clause of the

Fourteenth Amendment , a state's convictions cannot be brought about by methods that offend

a sense of justice .") In this case , the state attempted to introduce evidence of a bullet that

allegedly relevant to the crime . However , the state did not establish a proper chain of

custody of the bullet , thus rendering the evidence inadmissible at trial . In admitting this

evidence , the trial court committed reversible error and violated Mr. Jackson ' s rights to due

process, a fair trial and a reliable sentencing protected by the Fifth , Sixth , Eighth and

Fourteenth Amendments to the United States Constitution, the Alabama Constitution and

Alabama law. Ex parte Cook, 624 So. 2d 511 (Ala. 1993); Laws v. State, 562 So. 2d 305


XV. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT MR.JACKSON OF CAPITAL MURDER.

205. Due process requires that no person shall lose his liberty unless the state has

proven every element of the criminal charge beyond a reasonable doubt. In re Winship, 397

U.S. 358, 364 (1974); see also Montana v. Egeihoff, 518 U.S. 37, 46 (1996) ("the Due

Process Clause requires the government to prove the existence of every element of the

offense beyond a reasonable doubt."); Beard v . State, 612 So. 2d 1335, 1345 (Ala. Crim.

App. 1992) (state must prove every element beyond reasonable doubt). The state's failure to

meet its burden of proof requires reversal . See Ex parte Edwards, 452 So. 2d 503 (Ala.

1983) (capital case reversed where evidence insufficient to establish malice aforethought to

sustain conviction of murder of police officer); Banks v. State, 575 So. 2d 1244 (Ala. Crim.

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App. 1991) (state's failure to sufficiently prove one element of charged offenses requires

reversal); see also Ex2arte Woodall, 730 So. 2d 652 (Ala. 1998) ("[the role of the appellate

courts] is to judge whether the evidence is legally sufficient to allow submission of an issue

for decision by the jury").

206. In order to sustain a conviction for robbery-murder, both the intentional killing

and the robbery must be proven. See Coleman v. Jones, 909 F.2d 447 (11 `" Cir. 1990), cert.

denied, 499 U.S. 911 (1991). In this case, the state failed to prove the element of robbery.

The state's failure to satisfy its burden of proof to establish that Mr. Jackson was guilty of

all of the elements of the capital crime of murder during a robbery violated his rights to due

process, a fair trial and a reliable sentencing under the Fifth, Sixth, Eighth and Fourteenth

Amendments of the United States Constitution, the Alabama Constitution and Alabama law.

XVI. DOUBLE COUNTING ROBBERY AS AN ELEMENT OF THECAPITAL OFFENSE AND AS AN AGGRAVATING CIRCUMSTANCEWAS IMPROPER.

207. An aggravating circumstance the state presented at the penalty-phase of the

trial was that Mr. Jackson been found guilty of committing an intentional murder during the

course of a robbery. This conviction rendered him eligible for the death penalty under

Alabama law. The trial court gave weight to this conviction in sentencing Mr. Jackson to

death. The "double counting" of Mr. Jackson's robbery conviction in this case was improper

and unconstitutional.

208. The Alabama Supreme Court has held that double counting does not offend the

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state Constitution generally. See Ex 12arte Kennedy, 472 So. 2d 1106, 1108 (Ala. 1985). In

this case, however, the use of robbery both as an elevator in the guilt-phase and as an

aggravator in the penalty-phase failed to narrow the class of cases eligible for the death

penalty, resulting in the arbitrary imposition of the death penalty. Se e.g., Gregg v.

Georgia, 428 U.S. 153, 197 (1976); Zant v. Stephens, 462 U.S. 862, 877 (1983).

209. Further, double counting robbery subjected Mr. Jackson to two punishments

as a result of being convicted of a single criminal charge . See North Carolina X. Pearce, 395

U.S. 711, 717 (1969); Meyer v. State, 575 So. 2d 1212 (Ala. Crim. App. 1990). The double

counting of robbery both as an elevator in the guilt-phase and as an aggravator in the penalty-

phase violated Mr. Jackson's rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution, the Alabama Constitution, and state law.

XVII. ALABAMA'S MANNER OF EXECUTIONCONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

210. The Eighth Amendment requires states to take all feasible measures to

minimize the risk of cruelty in administering capital punishment. See Zant v. Stephens, 462

U. S. 862 (1983). Electrocutions in Alabama are characterized by the use of faulty equipment,

unqualified personnel, and inadequate procedures which result in body charring and electrical

burns to the backs, thighs, arms, and abdomens of condemned prisoners. If Mr. Jackson is

executed in Alabama's electric chair, his death likely will be slow and excruciating, his body

burned and mutilated. The Eighth Amendment cannot be construed to uphold the kind of

error that has attended electrocutions in Alabama.

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211. Mr. Jackson also contends that the undeveloped procedures for administering

lethal injection , and the cruelty of lethal injection violate the Eighth Amendment . Evolving

standards of decency have rendered Alabama ' s method of execution unconstitutional. Mr.

Jackson ' s death sentence constitutes cruel and unusual punishment in violation of the Eighth

and Fourteenth Amendments to the United States Constitution.

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XVIII. THE CUMULATIVE EFFECT OF ALL OF THEABOVE ERRORS ENTITLES MR. JACKSON TORELIEF

212. The cumulative effect of the errors of state and federal law alleged in this Rule

32 petition violate Mr . Jackson ' s rights to due process and a fair trial protected by the Fourth,

Fifth , Sixth, Eighth , and Fourteenth Amendments to the United States Constitution, the

Alabama Constitution, and Alabama law.

PRAYER FOR RELIEF

For all the above stated reasons and other such reasons as may be made upon

amendment of this petition and a full evidentiary hearing, Petitioner Shonelle Jackson

respectfully asks this Honorable Court to grant him the following relief:

(a) conduct a full evidentiary hearing at which proof may be offered concerning

the allegations in this petition;

(b) provide Petitioner , who is indigent, with funds sufficient to present witnesses,

experts , and other evidence in support of the allegations contained in this

petition;

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(c) issue an order relieving petitioner of his unconstitutionally obtained conviction

and death sentence following a full and complete hearing; and

(d) grant Petitioner any such additional relief as is just, equitable , and proper

under federal and state law.


11

A. Stevensonela L. Setzer

Equal Justice Initiative of Alabama122 Commerce StreetMontgomery, AL 3 6104334-269-1803

Counselfor Mr. Jackson

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Dated : March 31, 2004

ATTORNEY 'S VERIFICATION

I swear under penalty of perjury that, upon in

true and correct . Signed on March 31, 2004.

nnation aj belief, the foregoing is

er

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Counselfor Mr. Jackson

SWORN AND SUBSCRIBED before me this the '3 ^ day of /14 L 1-+ , 2004.

'^ r A L / 1Notary Public

My cominissi •pires: ZOO

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I hereby certify that on March 31, 2004, I served a copy of the attached petition by

first class mail, postage prepaid and properly addressed to:

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Jeremy McIntireOffice of the Attorney GeneralAlabama State House11 South Union StreetMontgomery, AL 3 613 0

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NO.




(In re: Shonelle Andre Jackson,Petitioner

v.

1 State of Alabama,Respondent))

Alabama Court of CriminalAppeals No . CR-04-0096

Montgomery County CircuitCourt No. CC-97-2300.60

FILED

APR - 1 2005

CLERKALA COURT CRIMINAL APPEALS

PETITIONER ' S APPENDIX TOPETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OFCRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY,


VOLUME II OF III

1I

Bryan A . Stevenson

Angela L. SetzerEqual Justice Initiative ofAlabama122 Commerce StreetMontgomery , AL 36104Ph: (334) 269-1803Fax: (334 ) 269-1806


April 1, 2005

1 NO.





Petitioner

v.

State of Alabama,

Respondent))

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Montgomery County CircuitCourt No . CC-97-2300.60

PETITIONER'S APPENDIX TO

PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OFCRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY,


VOLUME II OF III

I

Bryan A. StevensonAngola L. Setzer

Equal Justice Initiative ofAlabama122 commerce StreetMontgomery, AL 36104Ph: (334) 269-1803Fax: (334) 269-1806


April 1, 2005

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INDEX TO APPENDIX OF EXHIBITS

TAB 1 Opinion of the Alabama Court of Criminal Appealsdated March 18, 2005

TAB 2 Order of Honorable Judge Tracy S. McCooey dated

March 23, 2005

TAB 3 State of Alabama's Petition for Writ of Mandamus toHonorable Tracy S. McCooey, Circuit Judge, FifteenthJudicial Circuit; Volumes I, II of Exhibits

Exhibit A

Exhibit B

Exhibit C

Exhibi t D

Exhibit E

Exhibit F

Exhibi t G

Shonelle Jackson's Amended Rule 32

Petition

State 's Answer to Shonelle Jackson'sAmended Rule 32 Petition

State's Motion to Dismiss ProcedurallyBarred Claims

State's Motion to DismissInsufficiently Plead Claims

State's Motion to Dismiss ClaimsPursuant to Rule 32.7(d)

Mr. Jackson 's Motion for Discovery ofInstitutional Records , Files, andInformation Necessary to a Fair Rule32 Evidentiary Hearing

Mr. Jackson's Motion for Discovery ofProsecution Files, Records and

Information Necessary to a Fair Rule32 Evidentiary Hearing

Exhibit H State's Response to Mr. Jackson'sMotion for Discovery of InstitutionalRecords, Files, and InformationNecessary to a Fair Rule 32Evidentiary Hearing

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Exhibit I State's Response to Mr. Jackson'sMotion for Discovery of ProsecutionFiles, Records, and InformationNecessary to a Fair Rule 32Evidentiary Hearing

Exhibit J Mr. Jackson's Response to the State's

Opposition to his Discovery Requests

Exhibit K Transcript of the Hearing Held onOctober 13 , 2004 in the MontgomeryCounty Circuit Court on the Parties'Motions

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Exhibit L Circuit Court's Order of October 13,2004

TAB 4 Shonelle Jackson's Answer in Opposition to the Stateof Alabama's Petition for Writ of Mandamus toHonorable Tracy S. McCooey, Circuit Judge, FifteenthJudicial Circuit

Exhibit A Petitioner's Response to the State'sMotions to Dismiss

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TAB 5 Brief of Amicus Curiae of the Alabama Department toHuman Resources

TAB 6 Petitioner's Objection to this Court's Signing ofthe State's Proposed Orders Without Modification


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IN THE CIRCUIT COURT OF MONTGOMERY COUNTY , ALABAMA


Petitioner,

v. ) CC-1997-2300.60

STATE OF ALABAMA,

Respondent.

STATE OF ALABAMA ' S ANSWER TO JACKSON ' S AMENDED PETITIONFOR RELIEF FROM CONVICTION AND DEATH SENTENCE

Comes now Respondent, the State of Alabama, and

files an answer to Jackson's amended petition for

relief from conviction and death sentence. The State

answers the petition for relief from conviction and

sentence of death, filed pursuant to Rule 32 of the

Alabama Rules of Criminal Procedure, as follows:

RESPONSE TO PROCEDURAL HISTORY

1. In the unnumbered introductory paragraph to his

Rule 32 petition, Jackson claims that his conviction

and death sentence were unconstitutionally obtained.

That claim is denied. It is admitted that Shonelle

Andre Jackson is now incarcerated at Holman State

Prison in Atmore, Alabama.

2. Paragraph one of the petition is admitted.

Jackson was indicted on two counts of capital murder,

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in violation of Alabama Code Sections 13A-5-40(a)(2)

and 13A-5-40(a) (17), on one count of theft, in

violation of Alabama Code Section 13A-8-3, and on one

count of receiving stolen property, in violation of

Alabama Code Section 13A-8-17. (CR. 7-11)

3. Paragraph two of the petition is admitted.

4. Paragraph three of the petition is admitted to

the extent that the jury's recommendation of life

without parole was not a "verdict" but was a

recommendation. In addition, this court found the

existence of the following aggravating circumstances:

the §13A-5-49(4), Code of Alabama (1975) aggravating

circumstance that the capital offense was committed

while Jackson was engaged in the commission of, or an

accomplice in the commission of, a robbery; and the

§13A-5--49(1), Code of Alabama (1975) aggravating

circumstance that the capital offense was committed by

one under a sentence of imprisonment. (CR. 174-175)

This court also found the following mitigating

circumstance: the §13A-5-51(7), Code of Alabama (1975)

mitigating circumstance that Jackson was 18 years old

at the time the offense was committed. (CR. 177-178)

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This Court also considered numerous non-statutory

mitigating circumstances. (CR. 178-179)

5. Paragraphs 4-5 of the petition are admitted.

6. Paragraph 6 is admitted. A hearing was

conducted on October 24, 2001, as ordered by the

Supreme Court of Alabama. This Court subsequently

determined, after examining the totality of the

circumstances surrounding Jackson's statement, that

Jackson's statement was voluntary and therefore

properly admissible. (Supp. R. 8-12) On return from

remand, the Supreme Court of Alabama affirmed Jackson's

conviction and death sentence and denied his

application for rehearing. Ex parte Jackson, 836 So. 2d

979 (Ala. 2002). In addition, the Alabama Court of

Criminal Appeals issued the Certificate of Judgment in

this case on May 31, 2002..

7. Paragraphs 7-8 of the petition are admitted.

RESPONSE TO GROUNDS FOR RELIEF

I

1. THE CLAIM THAT COUNSEL WAS INEFFECTIVE AT BOTH THE

GUILT AND PENALTY PHASES OF JACKSON ' S TRIAL

8. Paragraphs 9-11 fail to state an independent

claim for relief in accordance with Alabama Rule of

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Criminal Procedure 32.7(d) because they do not allege

specific acts or omissions of counsel and, instead, are

merely introductory paragraphs for the particular

allegations within Ground I of the petition. As such,

these paragraphs are due to.be dismissed pursuant to

Rule 32.7(d). See Thomas v. State, 766 So. 2d 860, 892

(Ala. Crim. App. 1998) ("... a review of a claim of

ineffective counsel is not triggered until the

petitioner has identified specific acts or

omissions."). Alternatively, any arguments contained

in paragraphs 9-11 are denied. The ineffective

assistance of counsel claims are answered as follows:

The Claim That Jackson Was Denied The Effective

Assistance Of Counsel In Part Because Of The

Insufficient Funds Provided For Court -AppointedAttorneys In Capital Cases'

9. This claim is contained in paragraphs 12-16

and is answered as follows:

a) This claim is due to be dismissed because it

is procedurally barred as it could have been but was

not raised at trial or on direct appeal. Ala. R. Crim.

P. 32.2(a)(3) and (5). As noted by Alabama Court of

(This claim is unnumbered in Jackson's amended Rule 32petition.

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Criminal Appeals in Bui v. State, 717 So. 2d 6, 16 n. 9

(Ala. Crim. App. 1997):

[T]here is a sound legal basis for applying

the procedural bars found in Rule 32.2(a)

to the appellant's claim. Most of the usual

factors disinclining an attorney fromalleging his or her own ineffectiveness are

not present in a claim of this nature,

because an attorney claiming that he or she

was deprived of funds sufficient to mount

an adequate defense is not necessarily

admitting to having made poor strategic

choices or unprofessional mistakes, but is

instead asserting that despite the best

intentions to act in the client's behalf,the attorney's performance has been

improperly hampered by forces beyond theattorney's control. It might be argued,

then, that the appellant's attorneys at

trial and on appeal had little

disincentive, and ample opportunity, to

present a claim that the compensation

scheme in § 15-12-21(d) prevented them fromrendering legally effective assistance, ifthey believed this to be the case.

Accordingly, the claim that Alabama's compensatory

scheme caused counsel to render ineffective

assistance should be deemed procedurally barred

because Jackson's counsel could have raised this

issue both at trial and on appeal.

b) This claim is due to be dismissed for failing

to meet the requirements of Rules 32.3 and 32.6(b),

Ala.R.Crim.P. Jackson does not fully disclose the

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factual basis of his claim that he was denied effective

assistance of counsel. Jackson has not made a full

disclosure of the facts upon which he is relying to

entitle himself to relief. His pleading does not

include any facts which, if presented by trial counsel,

would have resulted in a different finding by the trial

court. Under Rule 32.7(d), Ala.R.Crim.P., this claim

of ineffective assistance of counsel that is not

sufficiently pleaded is due to be dismissed. ("If the

court determines that the petition is not sufficiently

specific, or is precluded, or fails to state a claim,

or that no material issue of fact or law exists which

would entitle the petitioner to relief under this rule

and that no purpose would be served by any further

proceedings, the court may either dismiss the petition

or grant leave to file an amended petition").

c) Moreover, this claim should be dismissed as a

matter of law because the underlying issue was raised

on direct appeal and held to be without merit. Jackson

v. State, 836 So. 2d 915, 959-960 (Ala. Crim. App.

1999). Jackson cannot prevail on a claim of

ineffective assistance of counsel when the Court of

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Criminal Appeals ruled that the ground for the claim

was without merit. See Dobyne v. State, 805 So. 2d

733, 744 (Ala. Crim. App. 2000)("A finding of no

manifest injustice under the `plain error' standard on

direct appeal serves to establish a finding of no

prejudice under the test for ineffective assistance of

counsel provided in Strickland v. Washington");

Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.

1999)("Counsel can not be said to be ineffective for

not raising a claim this court has already found to be

without merit"). The ground which underlies Jackson's

claim of ineffective assistance of counsel has been

held to be without merit and, as a result, this claim

should be dismissed as a matter of law.

d) Alternatively, this claim is denied.

A. The Claim That Jackson Was Denied Effective

Assistance Of Counsel During The Guilt PhaseOf His Trial.


and contains numerous sub-claims. These claims are

answered as follows:

11. Paragraph 17 fails to state an independent

claim. for relief in accordance with Alabama Rule of

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Criminal Procedure 32.7(d) because it does not allege

specific acts or omissions of counsel and, instead, is

merely an introductory paragraph for the particular

allegations within Ground I.A of the petition,. As such,

this paragraph is due to be dismissed pursuant to Rule

32.7(d). See Thomas v. State, 766 So. 2d 860, 892

(Ala. Crim. App. 1998) ("... a review of a claim of

ineffective counsel is not triggered until the

petitioner has identified specific acts or omissions").

1. The Claim That Counsel Was Ineffective

For Failing To Adequately Investigate TheState's Capital Murder Charge AgainstJackson.


and contains separate sub-claims. Specifically,

Jackson alleges that trial counsel was ineffective for

failing to adequately meet with or interview himself,

his family, or other witnesses. Jackson argues that

had trial counsel adequately met with and interviewed

those individuals, trial counsel would have been able

to present evidence that the crime was the result of a

"drug deal gone bad". Jackson asserts that had trial

counsel presented such evidence, the trial court would

not have granted the State's motion in limine to

8

prevent the defense from introducing evidence that the

victim was a drug dealer.2 These claims are answered

as follows:

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a) The claim that trial counsel was

ineffective for failing to adequately

meet with Jackson and establish arelationship of trust.

a) Based on the trial record, this claim is due

to be summarily dismissed pursuant Ala. R. Crim. P.

32.7(d) because no material issue of law or fact exists

which would entitle Jackson to relief and no purpose

2 This claim is due to be dismissed as insufficientlyplead to the extent that Jackson is alleging thattrial counsel's failure to investigate would haveresulted in the discovery of evidence or testimony

separate and distinct from evidence concerning a

"drug deal gone bad". In Thomas v. State, 766 So. 2d860, 892 (Ala. Crim. App. 1998), the Alabama Court of

Criminal Appeals, citing Nelson v. Hargett, 989 F. 2d

847, 850 (5th Cir. 1993), held that "claims of

failure to investigate must show with specificitywhat information would have been obtained with

investigation, and whether, assuming the evidence isadmissible, its admission would have produced a

different result." Jackson fails to specify to theCourt any information or evidence that would have

been discovered or why such evidence would have been

so compelling that it might have had an impact on theguilt-phase or penalty phase of trial. As such,

Jackson's claim fails to comply with the specificity

and full factual pleading requirements of Rule

32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is dueto be summarily dismissed by the Court. Ala. R.Crim. P. 32.7(d).

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would be served by any further proceedings. In his

amended Rule 32 petition, Jackson argues that had trial

counsel not failed to investigate, they would have

found evidence indicating that the murder was the

result of a drug deal and not a robbery. Jackson

argues that had counsel presented such evidence, the

trial court would have denied the State's motion in

limine. However, the record demonstrates that in

objecting to the State's motion in limine, counsel did

present the same evidence that Jackson asserts should

have been presented in response to the State's motion

in limine. Prior to trial, Jackson's counsel argued

that the victim and defendant were drug dealers and the

murder was the result of a drug deal and not a robbery.

Trial counsel further explained to the trial court that

there was evidence that the victim was also known to

sell fake crack. (R. 26-31, 37-38)

Jackson has not presented any new facts that were

not already heard and rejected by this Court in

granting the State's motion in limine. As such, this

claim is due to be summarily dismissed pursuant Ala. R.

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Crim. P. 32.7(d) because no material issue of law or

fact exists which would entitle Jackson to relief and

no purpose would be served by any further proceedings.

b) Alternatively, this claim is denied.

b) The claim that trial counsel was

ineffective for failing to adequatelymeet with Jackson ' s family.


to be summarily dismissed pursuant to Ala. R. Crim. P.












present the same evidence that Jackson now asserts

should have been presented in response to the State's

motion in limine. In response to the State's motion

11

Iin limine, Jackson's counsel argued that the victim and

defendant were drug dealers and the murder was the

result of a drug deal and not a robbery. Trial counsel

further explained to the trial court that there was

evidence that the victim was also known to sell fake

crack. (R. 26-31, 37-38)


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c) The claim that trial counsel was

ineffective for failing to adequatelymeet with or interview the State' switnesses or other individuals whosetestimony would have undermined theState' s case.




which would entitle. Jackson to relief and no purpose


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d) The claim that trial counsel was

ineffective for failing to locate andinterview Gerard Burdette.


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b) Moreover, this claim should be dismissed as a

matter of law because the underlying issue was raised

on direct appeal and held to be without merit. Jackson


1999). The Court of Criminal Appeals held that Jackson

was not entitled to a continuance to locate Mr.

Burdette and that reading of his statement into

evidence was satisfactory. Jackson cannot prevail on a

claim of ineffective assistance of counsel when the

Court of Criminal Appeals ruled that the ground for the

claim. was without merit. See Dobyne v. State, 805 So.

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2d 733, 744 (Ala. Crim. App. 2000)("A finding of no












c) Alternatively, this claim is denied.


For Failing To "Procure Necessary Expert

Assistance".


and contains separate sub-claims. These claims are


a)The claim that trial counsel was

ineffective for failing to procure the

assistance of a firearm and projectileexpert.

a) Based on the trial record, this claim is due to

I be summarily dismissed pursuant Ala. R. Crim. P.

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amended Rule 32 petition, Jackson argues that,a firearm

expert could have testified that it was possible that

the "projectile that caused Mr. Moore's death could

have been fired by either the 9 mm gun or the .357

carried by the co-defendants." However, the record

demonstrates that such testimony was introduced and

presented to the jury. On cross-examination of State's

witness Joe Saloom, Jackson's trial counsel brought out

the fact that the bullet recovered from Mr. Moore's

body could have been fired from either a 9 mm pistol or

.357 pistol.

Q. Let me get back to my question. Could it have

come from a nine-millimeter?

A. Yes, sir, it could.

(R. 506)

* * * * * * * * * * *

Q. Dr. Saloom, are you saying that there is no

ninety grain .357 cartridges or nine-millimeter

cartridges on the market? .

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A. No,, sir, I'm not.

(R. 508)

Because testimony was introduced by a firearms

expert that the bullet could have come from a,nine-

millimeter or .357 pistol, Jackson cannot establish

deficient performance or prejudice under Strickland v.

Washington. As such, this claim is due to be dismissed

pursuant to Ala. R. Crirn. P. 32.7(d) because no

material issue of law or fact exists which would

entitle Jackson to relief and no purpose would be

served by any further proceedings.


b) The claim that trial counsel was

ineffective for failing to secure the

assistance of an expert on eyewitness

identifications.


be summarily dismissed pursuant Ala. R. Crim. P.




amended Rule 32 petition, Jackson argues that the State

relied on Leroy Geary to establish that it was the

18

person in the driver's seat who shot the victim.

(Jackson's Amnd. Pet. at 12) Jackson asserts. that an

expert on eyewitness identification would have

testified that under the conditions at the time, any

such identification would have been unreliable.

However, Leroy Geary never identified Jackson as the

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shooter. Moreover , all three co-defendants testified

that it was Jackson who was driving the car at the time

of the murder and who jumped out of the car from the

driver's seat after the crash. (R. 317, 386, 438).

Furthermore, Eric Williams and Christopher Rudolph both

identified Jackson as the driver and shooter in this

case. (R. 386, 438). Far from relying on Leroy Geary's

testimony to establish that the person in the driver's

side of the vehicle that was responsible for murdering

the victim, the State presented multiple eyewitnesses

who testified that Jackson was the shooter.

As such,-even if trial counsel had procured an

expert to testify that Leroy Geary's testimony was

unreliable, other overwhelming evidence existed that

Jackson was the shooter. Therefore, Jackson cannot

establish deficient performance or prejudice under

19

1 Strickland v. Washington. As such, this claim is due

to be dismissed pursuant to Ala. R. Crim. P. 32.7(d)

because no material issue of law or fact exists which




c.)-The claim that trial counsel was


assistance of an investigator and/orsocial worker.

1

1

I

a) This claim is due to be dismissed for failing




assistance of counsel because trial counsel failed to

procure the services of an investigator and/or social

worker. His pleading does not include any facts which

an investigator or social worker would have uncovered

that, if presented by trial counsel, would have

resulted in a different outcome during the guilt phase.

Under Rule 32.7(d), Ala.R.Crim.P., any claim of

ineffective assistance of counsel that is not

sufficiently pleaded is due to be dismissed. ("If the

court- determines that the petition is not sufficiently

20

1

1








and full factual pleading requirements of Rule 32.6(b),

32.3, Ala. R. Crim. P.; therefore, it is due to be

summarily dismissed by the Court. Ala. R. Crim. P.

32.7(d).

b) Additionally, Jackson also asserts that an

investigator or social worker would have also assisted

trial counsel in challenging the admissibility of his

statements. This claim should be dismissed as a matter

of law because the underlying issue was raised on

direct appeal and held to be without merit. Ex parte

Jackson, 836 So. 2d 979, 982-985 (Ala. 2002). The

Supreme Court of Alabama found that Jackson's

statements were voluntary and admissible. Jackson

cannot prevail on a claim of ineffective assistance of

counsel when the Supreme Court has ruled that the

21

El

1

1

ground for the claim was without merit. See Dobyne v.

State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A

finding of no manifest injustice under the `plain

error' standard on direct appeal serves to establish a

finding of no prejudice under the test for ineffective

assistance of counsel provided in Strickland v.

Washington"); Callahan v. State, 767 So. 2d 380, 388

(Ala. Crim. App. 1999)("Counsel can not be said to be

ineffective for not raising a claim this court has

already found to be without merit"). The ground which

underlies Jackson's claim of ineffective assistance of

counsel has been held to be without merit and, as a

result, this claim should be dismissed as a matter of

law.


1

11

d) The claim that trial counsel was


assistance of a mental health expert.






22

procure the services of a mental health expert. His

pleading does not include any facts which a mental

health expert would have uncovered that, if presented

by trial counsel, would have resulted in a different

outcome during the guilt phase. Nor does Jackson

specifically identify any mental impairments he

11

111I

allegedly suffers from . Under Rule 32.7(d),

Ala.R.Crim.P., any claim of ineffective assistance of

counsel that is not sufficiently pleaded is due to be

dismissed. ("If the court determines that the petition

is not sufficiently specific, or is precluded, or fails

to state a claim, or that no material issue of fact or

law exists which would entitle the petitioner to relief

under this rule and that no purpose would be served by

any further proceedings, the court may either dismiss

the petition or grant leave to file an amended

petition"). Jackson's claim fails to comply with the

specificity and full factual pleading requirements of

Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is

due to be summarily dismissed by the Court. Ala. R.

Crim. P. 32.7(d).


23

1

1

1

t

e)The claim that trial counsel was

ineffective for failing to procure theassistance of an expert on drug andalcohol abuse.

a) Jackson has failed to allege any facts in

support of this claim in his petition, nor has he

demonstrated or indicated how he was prejudiced by

trial counsel's failure to procure a drug and alcohol

expert. As such, Jackson's claim fails to comply with

the specificity and full factual pleading requirements

...of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it

is due to be summarily dismissed by the Court. Ala. R.

Crim. P. 32.7(d). See, Bracknell v. State, 2003 WL

1949823, *3 (Ala. Crim. App. 2003)("Although Bracknell

specifically identified the acts or omissions on the

part of his trial counsel that he believed constituted

deficient performance, he failed to include in his

petition any facts tending to indicate how those acts

or omissions prejudiced his defense."). Under Rule

32.7(d), Ala.R.Crim.P., any claim of ineffective

assistance of counsel that is not sufficiently pleaded

is due to be dismissed. ("If the court determines that

the petition is not sufficiently specific, or is

24

1

t11

precluded, or fails to state a claim, or that no

material issue of fact or law exists which would

entitle the petitioner to relief under this rule and

that no purpose would be served by any further







32.7(d).


1t

t


For Failing To Effectively Challenge The

State's investigation And Presentation Of

The Case.




a. The claim that trial counsel wasineffective for failing to timelyfile a Youthful Offender Application.

1 a) Based on the trial record, this claim is due to


25


1

1

tt

11


would be served by any further proceedings. Even if

trial counsel had presented evidence of Jackson's

upbringing and drug use, his Youthful Offender

Application would have been turned down. As documented

in the pre-sentence investigation report, Jackson had

an extensive criminal record. (C. 12-18) Jackson had

previously been arrested for such felonies as robbery,

burglary, theft, and assault multiple times. (C. 16-17)

Due to the seriousness of Jackson's previous

convictions and the failure of boot camp and other

punishments. to reform his conduct, his Youthful

Offender Application would have been denied even if

counsel had presented evidence cited by Jackson in his

petition.

b) Additionally, this claim is due to be

dismissed for failing to meet the requirements of Rules

32.3 and 32.6(b), Ala.R.Crim.P. Jackson does not

fully disclose the factual basis of his claim that he

was denied effective assistance of counsel because

trial counsel failed to timely file and adequately

26

11t1

1t

argue his Youthful Offender Application. His pleading

does not include any facts which, if presented by trial

counsel, would have resulted in a different outcome

during the guilt phase. ("If the court determines that

the petition is not sufficiently specific, or is

precluded, or fails to state a claim, or that no

material issue of fact or law exists which would

entitle the petitioner to relief under this rule and

that no purpose would be served by any further







32.7(d).


b. The claim that trial counsel was

ineffective for failing to challengeJackson ' s underlying convictions.

II



Ala.R.Crim.P. Jackson does not disclose the factual

27

11

1

11111

basis of his claim that he was denied effective


challenge his underlying convictions. Jackson does not

explain why guilty pleas to the underlying convictions

were not voluntary. ("If the court determines that the

petition is not sufficiently specific, or is precluded,

or fails to state a claim, or that no material issue of

fact or law exists which would entitle the petitioner

to relief under this rule and that no purpose would be

s,_erved by any further proceedings, the court may either

dismiss the petition or grant leave to file an amended





Crim. P. 32.7(d).


c. The claim that trial counsel was

ineffective for conceding guiltbefore the trial court.

tI

a) This claim is due to be dismissed pursuant to

Ala. R. Crim. P. 32.7(d). Jackson cannot demonstrate

prejudice or that the outcome of the trial would have

28

1It11tt

been different had trial counsel not told the trial

court that they may know where the murder weapon was

located. This information was never related to the

jury, who was charged with deciding Jackson's guilt or

innocence. As such, Jackson cannot satisfy the

prejudice prong as required by Strickland v.

Washington. Therefore, this claim is due to be


32.7(d).


d. The claim that trial counsel was

ineffective for shifting the burden

of proof during jury selection.

1

1


be summarily dismissed pursuant to Ala. R. Crim. P.



would be served by any further proceedings. The

record indicates that at the close of testimony during

the guilt phase, the trial court instructed the jury as

to the law:

We are that point in the proceedings where it is

my duty to tell you what the law of this case is

29

and how you will go about arriving at a verdict inthis phase of the case.

11

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1I

(R. 69-70) The trial court went on to explain that it

was the State's burden to prove Jackson's guilt beyond

a reasonable doubt.

And that plea of not guilty places the burden

entirely on the State of Alabama to prove his

guilt beyond a reasonable doubt before you find

him guilty. Because the burden rests entirely on

the State, we say he starts his trial -- Mr.

Jackson starts his trial with a clean slate

presumed not to be guilty because Mr. Jackson doesnot have any burden.

(R. 77-78) Jurors are presumed to follow the trial

court's-instructions. Harrison v. State, 2002 WL

1137708, (Ala. Crim. App. 2002). The trial court's

instructions were thorough and accurate. Therefore,

those instructions eliminated any possible prejudice to

the appellant. Because Jackson cannot demonstrate

prejudice as required by Strickland, this claim is due


for failing to state a claim upon which relief may be

granted.


e. The claim that trial counsel wasineffective for failing to remove

30

1

11

1

1

1t

certain jurors and for failing tosecure a jury expert.




basis of his claim. Jackson does not identify any

jurors that trial counsel should have removed nor does

Jackson explain how a jury expert would have assisted

in voir dire. ("If the court determines that the

petition is not sufficiently specific, or is precluded,

or fails to state a claim, or that no material issue of

fact or law exists which would entitle the petitioner

to relief under this rule and that no purpose would be

served by any further proceedings, the court may either

dismiss the petition or grant leave to file an amended





Crim. P. 32.7(d).


31

I

1

1I1I1

11I

f. The claim that trial counsel wasineffective for failing to,object tothe State' s challenges for cause.

a) This claim should be dismissed as a matter of

law because the underlying issue was raised on direct

appeal and held to be without merit. Jackson v. State,

836 So. 2d 915, 951-953 (Ala. Crim. App. 1999). The

Court of Criminal Appeals concluded that State's

challenges for cause were properly granted. Jackson


counsel when the Court of Criminal Appeals has ruled

that the ground for the claim was without merit. See

Dobyne v. State, 805 So. 2d 733, 744 (Ala. Crim. App.

2000)("A finding of no manifest injustice under the

`plain error' standard on direct appeal serves to

establish a finding of no prejudice under the test for

ineffective assistance of counsel provided in

Strickland v. Washington"); Callahan v. State, 767 So.

2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be

said to be ineffective for not raising a claim this

court has already found to be without merit"). The

ground which underlies Jackson's claim of ineffective

assistance of counsel has been held to be without merit

32

1

1111

11

I1

1

and, as a result, this claim should be dismissed as a

matter of law.


9- The claim that trial counsel was


raise and argue Batson and J.E.B.

objections.





Court of Criminal Appeals held that no Batson or J.E.B.

violations occurred. Jackson cannot prevail on a claim

of ineffective assistance of counsel when the Court of

Criminal Appeals has ruled that the ground for the

claim was without merit. See Dobyne v. State, 805 So.









33

E

1111111

1

1I



held to be without merit and , as a result , this claim



h. The claim that trial counsel wasineffective for failing to adequatelyinvestigate and cross-examine certainwitnesses.




basis of his claim. Jackson does not identify

testimony, evidence, or questions that trial counsel

should have elicited in their investigation or on

cross-examination. Instead, Jackson only makes bare

allegations that trial counsel's investigation and

cross-examination of witnesses was insufficient. ("If

the court determines that the petition is not

sufficiently specific, or is precluded, or fails to

state a claim, or that no material issue of fact or law

exists which would entitle the petitioner to relief

under this rule and that no purpose would be served by

any further proceedings, the court may either dismiss

34

I

1

the petition or grant leave to file an amended





Crim. P. 32.7(d).


i. The claim that trial counsel was

ineffective for failing to challenge

the voluntariness of Jackson's

statements in front of the jury.

1

a) This claim should be summarily dismissed

because this Court is without jurisdiction to consider

this claim. This claim does not relate back to any

claim in the original Rule 32 petition and was only

alleged after the limitation's period set forth in Rule

32.2(c) had expired. Because his certificate of

judgement was issued on May 31, 2002, Jackson only had

until July 31, 2003, to file his Rule 32 petition.

Jackson timely filed his original Rule 32 petition on

July 31, 2003. Jackson did not file his amended Rule

32 petition until March 31, 2004. As such,. any claims

in his amended petition that are new and different

35

claims, and, thus, do not relate back, are time-barred.

Charest v. State, 2002 WL 734306, *2 (Ala. Crim. App.

Apr. 26, 2002). Jackson's claim that trial counsel

should have challenged the voluntariness of his

statements before the jury is a new claim that does not

relate back to his original and timely filed petition.

1I

1

Therefore, this claim is due to be dismissed as time-

barred by Rule 32,2(c).

b) Alternatively, this claim should be dismissed

as a matter of law because the underlying issue was

raised on direct appeal and held to be without merit.

Ex parte Jackson, 836 So. 2d 979, 982-985 (Ala. 2002).

The Supreme Court of Alabama found that Jackson's

statements were voluntary and admissible. Jackson


counsel when the Supreme Court has ruled that the

ground for the claim was without merit. See Dob rie v.

State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000) ("A





36







1

1

1


law.


The claim that trial counsel wasineffective for failing to challengethe State's expert ballisticevidence.


be summarily dismissed pursuant to Ala. R. Crim. P.




amended Rule 32 petition, Jackson argues that counsel

was ineffective in its cross-examination of the State's

expert on ballistics evidence. Jackson alleges that

trial counsel should have established that the bullet

that killed the victim could have come from a different

gun. However, the record demonstrates that such

37

1

11

11I

.testimony was introduced and presented to the jury. On

cross-examination of State's witness Joe Saloom,

Jackson's trial counsel brought out the fact that the

bullet recovered from Mr. Moore's body could have been

fired from either a 9 mm pistol or .357 pistol.

Q. Let me get back to my question. Could it have

come from a nine-millimeter?

A. Yes, sir, it could.

(R. 506)

Q. Dr. Saloom, are you saying that there is no

ninety grain .357 cartridges or nine-millimeter

cartridges on the market?

A. No, sir, I'm not.

(R. 508)

Because testimony was introduced by a firearms

expert that the bullet could have come from a nine-

millimeter or .357 pistol, Jackson cannot establish

deficient performance or prejudice under Strickland v.

Washington. As such, this claim is due to be dismissed

pursuant to Ala. R. Crim. P. 32.7(d) because no


38


iI

11

11

1I

I

r


b) Alternatively, this claim is due to be

dismissed for failing to meet the requirements of Rules

32.3 and 32.6(b), Ala.R.Crim.P. Jackson does not

disclose the factual basis of his claim. Jackson does

not specify what further testimony, or questions on

cross-examination that trial counsel should have

elicited. Instead, Jackson only makes bare allegations

that trial counsel's investigation and cross-

examination were insufficient. ("If the court

determines that the petition is not sufficiently










39

1 summarily dismissed by the Court. Ala. R. Crim. P.

32.7 (d) .

t) Alternatively, this claim is denied.

k. The claim that trial counsel wasineffective for failing to object toirrelevant and prejudicial evidence.

11

1I1

11





Court of Criminal Appeals held that photos and video

were properly admitted. Jackson cannot prevail on a


Court of Criminal Appeals has ruled that the ground for

the claim was without merit. See Dobyne v. State, 805

So. 2d 733, 744 (Ala. Crirn. App. 2000)("A finding of no








40

1

1

1

1I

1I






1. The claim that trial counsel was

ineffective for failing to object to

evidence without the proper chain ofcustody.





Court of Criminal Appeals held that the bullet was

properly admitted into evidence. Jackson cannot

prevail on a claim of ineffective assistance of counsel

when the Court of Criminal Appeals has ruled that the

ground for the claim was without merit. See Dobyne v.

State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A






41

1

1







law.


111t1

1

tI

M. The claim that trial counsel was

ineffective for failing to present a

viable defense theory.



32.7(d) because Jackson cannot demonstrate deficient

performance or prejudice as required by Strickland v.

Washington. As a result, no material issue of law or



The trial record clearly demonstrates that trial

counsel did have a viable theory of defense.

Specifically, trial counsel's theory of defense was

that Jackson did not fire the fatal shot. On cross-

examination of State's witness Joe Saloom, Jackson's

42

I

I1

1

11111t

11t

trial counsel brought out the fact that the bullet

recovered from Mr. Moore's body could have been fired

from either a 9 mm pistol or .357 pistol. (R. 508)

During closing argument, Jackson's trial counsel re-

iterated that someone else may have fired the fatal

shot. (R. 56-57) Clearly, trial counsel presented a

viable theory of defense.

Furthermore, Jackson's assertions that trial

counsel should have presented evidence that the murder

was the result of a drug deal is without merit. Prior

to trial, Jackson's counsel argued that the victim and





crack. (R. 26-31, 37-38) The trial court rejected

trial counsel's arguments and granted the State's

motion in limine preventing trial counsel from

presenting any such evidence. The trial court's

granting of the motion in limine was upheld on appeal.

Jackson v. State, 836 So. 2d 915, 929-931 (Ala. Crim.

App.-1999). Jackson has not presented any new facts

43

11

111t11

1I

concerning the "drug deal gone bad" theory that was not

already heard and rejected by this Court and by the

Court of Criminal Appeals. As such, this claim is due


because no material issue of law or fact exists which




n. The claim that trial counsel was

ineffective for failing to give an

adequate closing statement.



32.7(d) because Jackson cannot demonstrate deficient

performance or prejudice as required by Strickland v.

Washington. As a result, no material issue of law or



Jackson argues that trial counsel should have argued

during closing that someone else may have fired the

fatal shots and that the murder was not the result of a

robbery, but a drug deal. In fact, during closing

argument, Jackson's trial counsel did argue that

44

someone else may have fired the fatal shot. (R. 56-57)

Furthermore, Jackson's assertions that trial

counsel should have presented evidence that the murder

was the result of a drug deal is without merit. Prior

to trial, Jackson's counsel argued that the victim and


1

111

1

1




crack. (R. 26-31, 37-38) The trial court rejected

trial counsel's arguments and granted the State's

motion in limine preventing trial counsel from

presenting any such evidence. The trial court's

granting of the motion in limine was upheld on appeal.

Jackson v. State, 836 So. 2d 915, 929-931 (Ala. Crim.

App. 1999). Jackson has not presented any new facts

concerning the "drug deal gone bad" theory that was not

already heard and rejected by this Court and by the

Court of Criminal Appeals. Therefore, Jackson.'s trial

counsel was prevented from arguing any such theory. As

such, this claim is due to be dismissed pursuant to

Ala. R. Crim. P. 32.7(d) Jackson cannot demonstrate

45

1

111

11

1t

1I

deficient performance or prejudice based on counsel's

alleged failure to argue that someone else fired the

fatal shot or that the murder was the result of a drug

deal.

'b) Alternatively, this claim is denied.

o. The claim that trial counsel was

ineffective for failing to ensure acomplete record.



.Ala.R.Crim.P. Jackson fails to state how he was

prejudiced by trial counsel's failure to ensure a

complete record. As a result, Jackson has not provided

any information that would show that the outcome of the

trial would have been different had trial counsel

ensured a complete record. As such, Jackson's claim

fails to comply with the specificity and full factual

pleading requirements of Rule 32.6(b), 32.3, Ala. R.

Crim. P.; therefore, it is due to be summarily

dismissed by the Court. Ala. R. Crim. P. 32.7(d). See,

Bracknell v. State, 2003 WL 1949823, *3 (Ala. Crim.

App. 2003)("Although Bracknell specifically identified

the acts or omissions on the part of his trial counsel

46

1111

111

I1

1

that he believed constituted deficient performance, he

failed to include in his petition any facts tending to

indicate how those acts or omissions prejudiced his

defense.").


4. The Claim That Counsel Was Ineffective For

Failing To Request A Jury Instruction On

The Lesser Included Offense Of Robbery,

And For Failing To Object To The Trial

Court ' s Failure To Give An Instruction On

Robbery Sua Sponte.

15. This claim is contained in paragraph 66 and is


(a) This claim is without merit and should be

dismissed as a matter of law because the underlying

issue was raised on direct appeal and held to be

without merit. Jackson v. State, 836 So. 2d 915, 938-

939 (Ala. Crim. App. 1999): Jackson cannot prevail on

a claim of ineffective assistance of counsel when the






47

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tt11

I


counsel provided in Strickland v. Washington")








Fb) -Alternatively, this claim is denied.


Failing To Object To The Trial Court's

Leaving The Courtroom While The Jury

Watched Jackson ' s Videotaped Statement To

Police.







943 (Ala. Crim. App. 1999). Jackson cannot prevail on



48


1

1

tt111

111t

1

2d 733, 744 (Ala. Crim. App. 2000) ("A finding of no












(b) Alternatively, this claim is denied.


Failing To Object To The Trial Court's

Instruction On Reasonable Doubt.

17. This claim is contained in paragraph 68 and

is answered as follows:





49

I

1

tt11111

1

950.(Ala. Crim. App. 1999). Jackson cannot prevail on




claim was without merit. See Dob yne v. State,.805 S





Callahan v..St.ate, 767 So. 2d 380, 388 (Ala. Crim. App.









Failing To Insure That The Jury Was

Instructed About The Accomplice

Corroboration Requirement.


Iand is answered as follows:

50

1

1

111

111

I




without merit. Jackson v. State, 836 So. 2d 9.15, 946

(Ala. Crim. App. 1999). Jackson cannot prevail on a





manifest injustice under the `plain error' standar.d.on.









held to be without. merit and, as a result, this claim



8. The Claim That The Cumulative Effect OfCounsel ' s Ineffective Performance At The

51

Guilt Phase Denied Jackson The Right To TheEffective Assistance Of Counsel.,

1

1111

11

I



(a) This claim should be dismissed because, as a

matter of law, this claim cannot be evaluated under

Strickland v. Washington, 466 U.S. 668, 690 (1984).

Strickland requires the petition to identify specific

acts or omissions on the part of trial counsel. The

United States Supreme Court states in Strickland:

A convicted defendant making a claim

of ineffective assistance of counselmust identify the acts or omissionsof counsel that are alleged not tohave been the result of reasonableprofessional judgment. The courtmust then determine whether, in

light of all the circumstances, theidentified acts or omissions wereoutside the wide range of

professionally competent assistance.

Strickland, 466 U.S. at 690 (emphasis added). This

passage from Strickland supports the proposition that

the United States Supreme Court has required that

specific instances of ineffective assistance of counsel

be alleged, and a claim that the cumulative effect of

alleged errors equals ineffective assistance of counsel

is insufficient.

52

1

1

11

1111

1

Moreover, Rule 32.7(d) states:

If the court determines that the

petition is not sufficiently

specific, or is precluded, or failsto state a claim, that no materialissue of fact or law exists whichwould entitle the petitioner to

relief under this rule and that no

purpose would be served by any

further proceedings, the court may

either dismiss the petition or grantleave to file an amended petition.

Ala. R. Crim. P. 32.7(d). (emphasis added). Thus,

this claim should be dismissed because it does not

assert a specific claim of ineffective assistance of

counsel as required by Strickland and, accordingly,

fails to present a material issue of law or fact under

Rule 32.7(d).


B. The Claim That Jackson Was Denied EffectiveAssistance Of Counsel During The Penalty AndSentencing Phases of His Trial.



answered as follows3:

3To the extent that paragraphs 72-73 are meant as an

independent claim for relief, they do not sufficiently

state a claim upon which relief may be granted pursuantto Ala. R. Crim. P. 32.3, 32.6(b). Jackson fails to

identify any evidence or information that would have

53

i.The Claim That Counsel Was Ineffective For

Failing To Investigate And Present "Even APortion Of The Available Mitigating

Evidence " At Both The Penalty AndSentencing Phases.



a) This claim is denied.


For Failing To Develop And Present A

Penalty And Sentencing Phase Strategy

That Would Convince The Trial Court That

Life Without Parole Was The Appropriate

Sentence.

11



a) This claim is denied.


For Failing To Obtain And Present

Independent Expert Testimony At The

Penalty And Sentencing Phases.

been discovered that would have changed the outcome ofthe trial. As such, Jackson's claim fails to complywith the specificity and full factual pleading

requirements of Rule 32.6(b), 32.3, Ala. R. Cram. P.;

therefore, it is due to be summarily dismissed by theCourt. Ala. R. Crim. P. 32.7(d). See, Bracknell v.

State, 2003 WL 1949823, *3 (Ala. Crim. App.

2003)("Although Bracknell specifically identified the

acts or omissions on the part of his trial counsel thathe believed constituted deficient performance, he

failed to include in his petition any facts tending toindicate how those acts or omissions prejudiced hisdefense.").

54

1

1

1

11

I

23. This claim is contained in paragraphs 140-146.

Jackson alleges that counsel was ineffective for

failing to procure the services of an investigator,

social worker or mitigation specialist, mental health

expert, and an expert on drug and alcohol abuse. This

claim is answered as follows:

a) Jackson fails to state how he was prejudiced

by trial counsel's failure to procure an investigator,

social worker or mitigation specialist, mental health

expert, and an expert on drug and alcohol abuse.

Jackson has not specified what these experts would have

testified to or how their testimony would have altered

the outcome of the penalty phase. Jackson fails to

identify any evidence or information that would have

been discovered that would have changed the outcome of

the trial. As such, Jackson's claim fails to comply

with the specificity and full factual pleading

requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.;

therefore, it is due to be summarily dismissed by the

Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v.

State, 2003 WL 1949823, *3 (Ala. Crim. App.

2003).("Although Bracknell specifically identified the

55

1

acts or omissions on the part of his trial counsel that

he believed constituted deficient performance, he

failed to include in his petition any facts tending to


defense.").



For Failing To Object To Alabama ' s Method

Of Execution As Cruel And Unusual

Punishment.

11

1E



a) This claim is due to be dismissed because

there is no material issue of fact or law. Ala. R.

Crim. P. 32.7(d). On July 1, 2002, the Alabama

Legislature modified Alabama law to provide for

execution by lethal injection unless the person elects

to be executed by electrocution. Furthermore, this

claim should also be dismissed pursuant to Ala. R.

Crim. P. 32.7(d) for failure to state a claim upon

which relief can be granted because lethal injection

has never been found to be cruel and unusual

punishment. See Poland v. Stewart, 117 F. 3d 1094,

1105 (9th Cir. 1997)(Lethal injection not found to be

56

1cruel and unusual punishment). Rather, offering lethal

injection as a method of execution has been deemed to

correct any possibility of cruel and unusual punishment

in regards to other methods of execution. See Stewart

v. LeGrand, 526 U.S. 115, 119 (1999). Thus, this claim

is due to be dismissed.



For Failing To Object To Double Counting

Robbery As An Element Of The Capital

Offense And As An Aggravating

Circumstance.

1



a) This claim is without merit and should be




959 (Ala. Crim. App. 1999). Jackson cannot prevail on






57


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I









should be dismissed as a matter of law pursuant to Rule

32.7(d) of the Ala. R. Crim. F.


6. The Claim That Counsel Was. Ineffective

For Failing To Object To The Death

Penalty In This Case As Disproportionate.



a) This claim is without merit and should be



without merit. Jackson v. State, 836 So. 2d 915, 965

(Ala. Crim. App. 1999). Jackson cannot prevail on a


58

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should be dismissed as a matter of law pursuant to Rule

32.7(d) of the Ala. R. Crim. P.


7. The Claim That The Cumulative Effect Of

Counsels ' Ineffective Performance At The

Penalty And Sentencing Phases Denied

Jackson The Right To The EffectiveAssistance Of Counsel.



59

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a) This claim should be dismissed pursuant to

Ala. R. Crim. P. 32.7(d) as a matter of law because

this claim cannot be evaluated under Strickland v.

Washington, 466 U.S. 668, 690 (1984). Strickland

requires the petition to identify specific acts or

omissions on the part of trial counsel. The United

States Supreme Court states in Strickland:

A convicted defendant making a claim

of ineffective assistance of counselmust identify the acts or omissionsof counsel that are alleged not tohave been the result of reasonableprofessional judgment. The courtmust then determine whether, in

light of all the circumstances, the

identified acts or omissions wereoutside the wide range of

professionally competent assistance.

Strickland, 466 U.S. at 690 (emphasis added). This

passage from Strickland supports the proposition that

the United States Supreme Court has required that

specific instances of ineffective assistance of counsel

be alleged, and a claim that the cumulative effect of

alleged errors equals ineffective assistance of counsel

is insufficient.

Moreover, Rule 32.7(d) states:

If the court determines that thepetition is not sufficiently

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specific, or is precluded, or failsto state a claim, that no materialissue of fact or law exists whichwould entitle the petitioner torelief under this rule and that nopurpose would be served by anyfurther proceedings, the court mayeither dismiss the petition or grantleave to file an amended petition.

Ala. R. Crim. P. 32.7(d). (emphasis added). Thus,

this claim should be dismissed because it does not

assert a specific claim of ineffective assistance of

counsel as required by Strickland and, accordingly,

fails to present a material issue of law or fact under

Rule 32.7(d).


II. THE CLAIM THAT JUROR MISCONDUCT DURING THE TRIAL

DEPRIVED JACKSON OF HIS RIGHTS TO A FAIR TRIAL,

DUE PROCESS , AND A RELIABLE SENTENCE

DETERMINATION.


and contains numerous allegations of juror misconduct.

These claims are answered collectively as follows:

a) These claims are procedurally barred from

review because they could have been but were not raised

at trial. Rule 32.2(a)(3), Ala.R.Crim.P. and Alabama

caselaw provide that relief cannot be given on a claim

which could have been raised or addressed at trial but

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was not. See e.g., Daniels v. State, 650 So. 2d 544,

551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 So.

2d 167, 171 (Ala. 1989).

b) These claims are procedurally barred.from


on appeal. Rule 32.2(a)(5), Ala.R.Crim.P. and Alabama


that could have been raised or addressed on appeal but

was not. See e.g., Daniels v. State, supra; Ma wood v.

State, 791 F. 3d 1428, 1444 (11th Cir. 1986); Coulter

v. State, 494 So. 2d 895, 898, 907-08 (Ala. Crim.

App.), cert. denied, 494 So. 2d 895 (Ala. 1996).

c) Additionally, in paragraph 156, Jackson

alleges that Juror Barbara Endsley determined that

Jackson should be sentenced to death prior to the

penalty phase of the trial. This claim is without

merit and is due to dismissed based on the record

pursuant to Rule 32.7(d). The jury unanimously

recommended that Jackson be sentenced to life without

the possibility of parole. (R. 599) As such, Jackson's

allegation regarding Juror Endsley is obviously without

merit-and due to be dismissed based on the record.

62

d) Alternatively, these claims are denied.

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III. THE CLAIM THAT THE STATE WITHHELD FAVORABLE

EVIDENCE FROM THE DEFENSE THUS VIOLATING JACKSON'S

FEDERAL AND STATE RIGHTS.

29. This claim is contained in paragraphs 164-168,

and contains several allegations of Brady violations by

the State. Specifically, Jackson alleges that the

State:

1) entered into deals or agreements with co-

defendants, in which in exchange for their

testimony, they would receive lesser

sentences;

2) withheld evidence involving an individual by

the name of Patrick Stinson;

3) withheld a copy of a crime scene diagram drawn

by Victoria Moss;

4) withheld a complaint filed by A.C. Porterfield

concerning three men on his property;

5) withheld offense reports or interviews with

Roderick Crawford;

6) withheld test or examination results performed

on both cars involved in this case;

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7) withheld-information provided by Latrice

Walker.

These claims are answered collectively as follows:

a) Jackson's claims are procedurally barred from


at trial. Rule 32.2(a)(3), Ala.R.Crim.P. and Alabama


which could have been raised or addressed at trial but

was not. See e.2., Daniels v. State, 650 So. 2d 544,

551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 S

2d 167, 171 (Ala. 1989).

b) These claims are also procedurally barred

from review because they could have been but were not

raised on appeal. Rule 32.2(a)(5), Ala.R.Crim.P. and

Alabama caselaw provide that relief cannot be given on

a claim that could have been raised or addressed on

appeal but was not. See e.g., Daniels v. State, supra;

Ma wood v. State, 791 F. 3d 1428, 1444 (11th Cir.

1986); Coulter v. State, 494 So. 2d 895, 898, 907-08

(Ala. Crim. App.), cert. denied, 494 So. 2d 895 (Ala.

1996).

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c) Additionally, the Brady allegations are due to

be dismissed as insufficiently plead. Jackson states

that "evidence introduced at trial and in the records

that Mr. Jackson has received strongly indicates that

additional discoverable material exists". (Jackson's

Amd. Pet. at 65) Far from actually asserting that such

violations took place, Jackson has only alleged that

they may exist. Furthermore, Jackson has not

specifically explained how any of the evidence

allegedly withheld from the defense was either

favorable or exculpatory to his defense. For example,

Jackson alleges that a witness drew a diagram of the

crime scene and that it was not disclosed to the

defense. However, Jackson does not explain in the

petition how this diagram is either favorable or

exculpatory. Another example involves Jackson's claim

that law enforcement impounded both the cars involved

in the murder. Jackson argues that testing may have

been done on the vehicles which was never disclosed to

the defense. Again, Jackson fails to explain how or

why such testing, if it even exists, is favorable or

exculpatory. All of Jackson's Brady claims lack any

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statement as to why the allegedly suppressed evidence

is either favorable, exculpatory, or even discoverable.

As such, Jackson's claim fails to comply with the




Crim. P. 32.7(d). Ala. R. Crim. P. 32.7(d).

d) Jackson's claim that the State suppressed

deals or agreements with the co-defendants in this case

is due to be dismissed pursuant to Rule 32.7(d) based

on the record at trial. Jackson's three co-defendants-

- Antonio Barnes, Eric Williams, and Christopher

Rudolph -- all testified at trial against Jackson. On

direct examination and under oath, all three stated

that they were offered nothing by the State in exchange

for their testimony, no deal or agreements were made in

exchange for their testimony, no promises were made and

that they were only asked to tell the truth. (R. 300,

369-370, R. 424) In his amended petition, Jackson has

offered no facts to support his bare allegation that

the State suppressed deals or agreements with the co-

defendants. As such, this claim is due to be summarily

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dismissed pursuant Ala. R. Crim. P. 32.7(d) because no




e) Alternatively, these allegations fail to state

claims upon which relief may be granted even if plead

as newly discovered evidence. These claims fail to

satisfy the elements for newly discovered material.

Ala. R. Crim. P. 32.1(e) requires the following

elements to be met in a.claim of newly discovered

evidence:

(1) The facts relied upon were not known by thepetitioner or the petitioner's counsel at the timeof trial or sentencing or in time to file a

posttrial motion pursuant to Rule 24, or in timeto be included in any previous collateral

proceeding and could not have been discovered by

any of those times through the exercise ofreasonable diligence;

(2) The facts are not merely cumulative to otherfacts that were known;

(3) The facts do not merely amount to impeachmentevidence;

(4) If the facts had been known at the time of

trial or of sentencing, the result probably wouldhave been different; and

1

I

(5) The facts establish that the petitioner isinnocent of the crime for which the petitioner was

convicted or should not-have received the sentence

67

that the petitioner received.

Ala. R. Crim. P. 32.1(e). Jackson cannot satisfy

the third or fifth element of 32.1(e). Even if the

allegations in this claim were true, they would not

establish that Jackson is innocent of the crime for

which he was convicted, but would rather amount to mere

1

impeachment evidence. As such, this claim fails to

state a claim upon which relief may granted or that

would entitle Jackson to relief. Thus, this claim is

due to be summarily dismissed pursuant to Ala. R. Crim.

P. 32.7(d).

f) Alternatively, this claim is denied.

IV. THE CLAIM THAT THE IMPOSITION OF THE DEATH PENALTY

ON ONE WHO IS MENTALLY RETARDED VIOLATES THE

EIGHTH AND FOURTEENTH AMENDMENTS AND THE STATE

CONSTITUTION.



a) This claim is without merit and is denied.

V. THE CLAIM THAT THE DEATH SENTENCE IN THIS CASE ISDISPROPORTIONATE IN VIOLATION OF JACKSON'S STATEAND FEDERAL RIGHTS.


Iand is answered as follows:

68

ia) This claim is procedurally barred from review

because it could have been but was not raised or

addressed at trial. Rule 32.2(a-)(3) Ala.R.Crim.P. and

Alabama caselaw provide that relief cannot be. given on

a claim which could have been raised or addressed at

trial but was not. See e.g., Daniels v. State, 650 So.

2d 544, 551 (Ala. Crim. App. 1994); Ex arte Sin leton,

548 So. 2d 167, 171 (Ala. 1989).

b) This claim is procedurally barred from review

because it was raised and addressed on appeal. Jackson

v. State, 836 So-2d 915, 965 (Ala. Crim. App. 1999).

Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw

provide that relief cannot be given on a claim that was

raised or addressed on appeal. See e.g., Ex parte

Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114

S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103,

1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d

1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989);

Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988),

cert. denied, 486 U.S. 1036 (1988).


69

VI. THE CLAIM THAT THE TRIAL COURT COMMITTED

REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY

ON THE LESSER INCLUDED OFFENSE OF ROBBERY.

1I

1



a) This claim is procedurally barred from review


addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and



trial._.but.was not. See e.g., Daniels V. State, 650 So.

2d 544, 551 (Ala. Crim. App. 1994); Ex arte Sin leton,

548 So. 2d 167, 171 (Ala. 1989).




1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama


that was raised or addressed on appeal. See e.g., Ex

carte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,

114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d

1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539

So. 2.d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206

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(1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App.

1988), cert. denied, 486 U.S. 1036 (1988).


VII. THE CLAIM THAT THE TRIAL COURT COMMITTED .

REVERSIBLE ERROR BY DENYING JACKSON A CONTINUANCE

TO SECURE A CRITICAL WITNESS.

32. This claim is contained paragraphs 182-185 and



because it was raised or addressed at trial. (R. 30)

Rule 32.2(a)(2), Ala.R.Crim.P. and Alabama case:law.

provides that relief cannot be given on a claim which

was raised or addressed at trial. See e.g., Daniels v.

State, supra; Holladay v. State, 629 So. 2d 673, 678

(Ala. Crim. App. 1992), cert. denied, 510 U.S. 1171

(1994).







arte.Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,

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114.S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d


So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206

(1989); Bell v. State, 518 So. 2d 840 (Ala. Grim. App.

1988), cert. denied, 486 U.S. 1036 (1988).


VIII . THE CLAIM THAT THE TRIAL COURT IMPROPERLY LEFT

THE COURTROOM WHILE THE JURY WATCHED JACKSON'S

VIDEOTAPED STATEMENT.


and. is answered. as follows:







2d 544, 551 (Ala. Crim. App. 1994); Ex parteSingleton,

548 So. 2d 167, 171 (Ala. 1989).



v. State, 836 So. 2d 915, 941-943(Ala. Crim. App.


72

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1

caselaw provide that relief cannot be given on a claimr


arte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,





1988), cert. denied, 486 U.S. 1036 (1988).


IX. THE CLAIM THAT THE STATE IMPROPERLY OBTAINED

JACKSON ' S CONVICTION BY UNCORROBORATED ACCOMPLICETESTIMONY.


and contains two distinct allegations. First, Jackson

alleges that the he was convicted solely on the basis

of uncorroborated accomplice testimony. Second, Jackson

alleges that the trial court erred in failing to

instruct the jury on the accomplice corroboration

requirement. These claim are answered as follows:

A. The Claim That The State Improperly ObtainedJackson ' s Conviction By Uncorroborated

Accomplice Testimony.

This claim is procedurally barred from review

because it was raised or addressed at trial. (R. 26-

73

30).. Rule 32.2(a)(2), Ala.R.Crim.P. and Alabama

1

1

1

caselaw provides that relief cannot be given on a claim

which was raised or addressed at trial. See e•g.,

Daniels v. State, supra; Hollada v. State, 629 So. 2d

673, 678 (Ala. Cram. App. 1992), cert. denied, 510 U.S.

1171 (1994).






that was raised or addressed on appeal. See Ex

parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,



So. 2d 1103 (Ala. 1989), cert. denied , 110 S.Ct. 206


1988), cert. denied, 486 U.S. 1036 (1988).


B. The Claim That The Trial Court Erred In

Failing To Instruct The Jury About The

Accomplice Corroboration Requirement.

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trial but was not. See e., Daniels v. State, 650 So.

2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton,

548 So. 2d 167, 171 (Ala. 1989).



v. State, 836 So. 2d 915, 946 (Ala. Crim. App. 1999).







1103 (Ala. 1989), cert. denied, 110 S.Ct..206 (1989);

.Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988),

cert.. denied, 486 U.S. 1036. (1988).

75

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I

C) Alternatively, this claim is denied.

X. THE CLAIM THAT THE STATE ' S USE OF ITS PEREMPTORYCHALLENGES DISCRIMINATED ON THE BASIS OF RACE ANDGENDER.



a) The Batson claim is procedurally barred from

review because it was raised or addressed at trial. (R.

156) Rule 32.2(a)(2), Ala.R.Crim.P. and Alabama

caselaw provides that relief cannot be given on a claim

which was raised or. addressed at trial. See egg.,

Daniels v. State, supra; Holladay v. State, 629 So. 2d

673, 678 (Ala.

1171 ( 1994).

Crim. App. 1992), cert. denied, 510 U.S.

b) The J.E.B. claim is procedurally barred from

review because it could have been but was not raised or






548 So. 2d 167, 171 (Ala. 1989).

76

c) This claim is procedurally barred from review

11

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I

because both the Batson and J.E.B. claims were raised

and addressed on appeal. Jackson v. State, 836 So. 2d

915, 946-948 (Ala. Crim. App. 1999). Rule 32.2(a)(4),

Ala.R.Crim.P. and Alabama caselaw provide that relief

cannot be given on a claim that was raised or addressed

on appeal. See e.g., Ex arte Ford, 630 So. 2d 115

(Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994);

Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim.

App. 1988), cert. denied, 539 So. 2d 1103 (Ala. 1989),

cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518

So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486

U.S. 1036 (1988).

d) Alternatively, this claim is denied.

XI. THE CLAIM THAT THE TRIAL COURT ' S REASONABLE DOUBTINSTRUCTION WAS UNCONSTITUTIONAL.








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trial but was not. See e.q., Daniels v. State, 650 So.


548 So. 2d 167, 171 (Ala. 1989).







parte Ford, 630 So. 2d 115 (Ala.. 1993), cert. denied,





1988), cert. denied, 486 U.S. 1036 (1988).


XII. THE CLAIM THAT THE TRIAL COURT IMPROPERLY

ADMITTED PHOTOGRAPHS THAT SERVED ONLY TO INFLAME

AND PREJUDICE THE JURY.





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Alabama caselaw provide that relief-cannot be given on




548 So. 2d 167, 171 (Ala. 1989).






that was raised or addressed on appeal. See e•g., Ex

parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied/.




(1989); Bell v. State, 518 So. 2d 840 (Ala. Crirn. App.

1988), cert. denied, 486 U.S. 1036 (1988).

XIII.

Alternatively, this claim is denied.

THE CLAIM THAT THE TRIAL COURT IMPROPERLY

GRANTED THE STATE ' S CHALLENGES OF JURORS FORCAUSE.

79




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because it could have been but was not raised. or





2d 544, 551 (Ala. Crim. App. 1994); Ex parteSingleton,

548 So. 2d 167, 171 (Ala. 1989)..



v.-State, 836 So. 2d 915, 951-953 (Ala. Crim. App.








(1989); Bell v. State, 518 So. 2d 840 (Ala. Cram. App.

1988)., cert. denied, 486 U.S. 1036 (1988).

80

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XIV. THE CLAIM THAT THE TRIAL COURT IMPROPERLY ADMITTED

EVIDENCE THAT DID NOT HAVE A PROPER CHAIN OF

CUSTODY.




because it was raised or addressed at trial. (R. 499-

500) Rule 32 . 2(a)(2), Ala.R.Crim . P. and Alabama

caselaw . provides that relief cannot be given on a claim

which was raised or addressed at trial. See e . g.,

Daniels v . State, supra ; Holladay v. State, 629 So. 2d

673, 678 (Ala. Crim. App . 1992 ), cert. denied , 510 U.S.

1171 (1994).


because it was raised and addressed on appeal . Jackson

v. State, 836 So. 2d 915, 953 - 955 (Ala. Crim. App.

1999 ). Rule 32.2(a )( 4), Ala.R.Crim . P. and Alabama


that was raised .. or addressed on. appeal . See e.g., Ex

arte Ford , 630 So . 2d 115 (Ala. 1993 ), cert. denied,

114 S.Ct. 1664 ( 1994 ); Baldwin v . State, 539 So. 2d

1103, . 1105 ( Ala. Crim. App ., 1988 ), cert. denied, 539

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1988), cert. denied, 486 U.S. 1036 (1988).


XV. THE CLAIM THAT THERE WAS INSUFFICIENT EVIDENCE TO

CONVICT JACKSON OF CAPITAL MURDER.








trial but was not. See e.g_, Daniels v. State, 650 So.

2d 544, 551 (Ala. Crim. App. 1994); Ex ante Singleton,

548 So. 2d 167, 171 (Ala. 1989).








82

114.S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d

1I

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1103, 1105 (Ala. Crim. App. 1988 ), cert. denied, 539



1988), cert. denied, 486 U.S. 1036 (1988).


XVI. THE CLAIM'THAT DOUBLE COUNTING ROBBERY AS AN

ELEMENT OF THE CAPITAL OFFENSE AND AS AN

AGGRAVATING CIRCUMSTANCE WAS IMPROPER.








trial but was not. See e.2., Daniels v. State, 650 So.


548 So. 2d 167, 171 (Ala. 1989).




1999).. Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama

83

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(1989); Bell v.' State, 518 So. 2d 840 (Ala. Crim. App.

1988), cert. denied, 486 U.S. 1036 (1988).


XVII. THE CLAIM THAT ALABAMA' S MANNER OF EXECUTION

CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.



a) The claim regarding electrocution is

procedurally barred from review because it could have

been but was not raised or addressed at trial. Rule

32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide

that relief cannot be given on a claim which could have

been raised or addressed at trial but was not. See

e.2., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim.

App. 1994); Ex parte Singleton, 548 So. 2d 167, 171

(Ala. 1989).

84

b) The claim regarding electrocution is

I

procedurally barred from review because it was raised

and addressed on appeal. Jackson v. State, 836 So. 2d

915, 960-962 (Ala. Crim. App. 1999). Rule 32.2(a) (4) ,

Ala.R.Crim.P. and Alabama caselaw provide that relief

cannot be given on a claim that was raised or addressed

on appeal. Seee.g., Ex parte Ford, 630 So. 2d 115

(Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994);

Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim.

App. 1988)..,-cert. denied, 539 So. 2d 1103 (Ala. 1989),

cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518

So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486

U.S. 1036 (1988).

c) The claim regarding electrocution is moot

because the State has changed to lethal injection as

its means of execution.

d) The claim regarding lethal injection must be

dismissed, or in the alternative, amended for failing


Ala.R.Crim.P.

e) This claim should also be dismissed pursuant

to Ala. R. Crim. P. 32.7(d) for failure to state a

85

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claim upon which relief can be granted because lethal

injection has never been found to be cruel and unusual

punishment . See Poland v. Stewart , 117 F. 3d 1094,

1105 ( 9th Cir. 1997) ( Lethal injection not found to be

cruel and unusual punishment ). Rather , offering lethal

injection as a method of execution has been deemed to

correct any possibility of cruel and unusual punishment

in regards to other methods of execution. See Stewart

v. LeGrand, 526 U.S. 115, 119 (1999). Thus, this claim

is due to be dismissed.

f) Alternatively, this claim is denied.

XVIII: THE CLAIM THAT THE CUMULATIVE EFFECT OF ALL OF

THE ABOVE ERRORS ENTITLE JACKSON TO RELIEF.








trial but was not. See Boyd v. State, 2003 WL

22220330, at *23 (Ala. Crim. App. Sept. 26,

2003)(holding that a claim regarding the cumulative

86

effect of alleged trial court errors could have been

11111

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raised at trial and, therefore , is subject to

preclusion by Rule 32.2(a)(3), Ala.R.Crim.P.). See

e.g , Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim.

App. 1994); Ex parte Singleton, 548 So. 2d 167, 171

(Ala. 1989).


because it was raised or addressed on appeal. Jackson

v. State, 836 So. 2d 915, 964 (Ala. Crim. App. 1999).







1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989);

Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988),

cert. denied, 486 U.S. 1036 (1988).


87

MISCELLANEOUS MATTERS

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45. The responses herein are based on the

undersigned counsel's understanding of the grounds for

relief alleged in the petition. If Jackson is

attempting to state any other claims, Respondent

requests a more definite statement of the issues and

that it be given an opportunity to respond if the

claims are amended in any way.

46. All averments in Jackson's petition that are

not expressly admitted are denied.

47. The responses set out herein are pleaded

separately and severally.

RESPONSE TO PRAYER FOR RELIEF

48. Jackson is not entitled to an evidentiary

hearing, or relief, on those claims in the petition

that are procedurally barred from review or due to be

summarily dismissed.

49. Jackson is not entitled to an evidentiary

hearing, or relief, on those claims in the petition

which are not supported by a "full disclosure of the

88

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factual basis" for such claims as required by Rule

32.6(b), Ala.R.Crim.P.

50. Jackson is not entitled to funds to present

witnesses, experts, or other evidence. The fact that

Jackson may be indigent is not relevant to this issue.

See, Williams v. State, 783 So. 2d 108, 113 (Ala. Crim.

App. 2000)(holding that "indigent defendants are not

entitled to funds to hire experts to assist in

postconviction litigation").

51. Jackson was properly convicted and sentenced

to death. He is not entitled to any relief from that

conviction and death sentence.

May 31, 2004


Troy King

Attorney General

eremf W. McIntire

Assistant Attorney GeneralCounsel of Record *

74

State of AlabamaOffice of the Attorney General

11 South Union Street

Montgomery, AL 36130-0152

(334) 353-4014 *

89


I hereby certify that on this nth day of May,

2004, I served a copy of the foregoing on counsel for

Petitioner, by placing said copy in the United States

Mail, first class, postage prepaid and addressed as

follows:


Equal Justice Initiative of Alabama122 Commerce StreetMontgomery, AL 36104

111

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"" YVere W. McIntireAssistant Attorney GeneralCounsel of Record *

ADDRESS OF COUNSEL:

Office of the Attorney GeneralCapital Litigation DivisionAlabama State House11 South Union StreetMontgomery, AL 36130(334) 353-4014 *

90

Page 2 of 48

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We sdaw.

836 So.2d 915(Cite as: 836 So-2d 915)

PCourt of Criminal Appeals of Alabama.

Shonelle Andre JACKSON

STATE.

CR-97-2050.

May 28, 1999.Rehearing Denied July'9, 1999.

Defendant was convicted in the MontgomeryCircuit Court, No. CC-97-2300, William R. Gordonand Tracy S. McCooey, JJ., of capital murder and

first-degree theft of property. He appealed. TheCourt of Criminal Appeals, Baschab , J., held that:(1) defendant voluntarily gave inculpatory statement

to police; (2) trial court properly used defendant'sjuvenile record to assess weight it would assign tostatutory mitigating circumstance of defendant's ageat time of offense; (3) failure to instruct jury onlesser included offense of robbery did not constituteplain error; (4) denying motion for continuance toallow defendant time to secure attendance ofallegedly critical witness was not an abuse ofdiscretion; (5) admission of photographs andvideotapes did not constitute plain error, (6)granting state 's challenges for cause as toprospective jurors did not constitute plain error; (7)evidence was sufficient to support conviction forcapital offense of murder committed during first-degree robbery; (8) using robbery as both elementof capital offense and as aggravating circumstancedid not violate double jeopardy; (9) trial court didnot improperly override jury's unanimoussentencing recommendation; and (10) deathsentence was proper.

Affirmed.

Remanded, Ala., 836 So.2d 973, remanded,Ala.Cr.App., 836 So.2d 978, opinion after remand,Ala., 836 So.2d 979.

West Headnotes

11] Criminal Law €1030(1)110kl030(l) Most Cited Cases

Page I

Although the lack of an objection at trial will notbar appellate review of an issue in a death penaltycase, the lack of an objection will weigh against anyclaim of prejudice. Rules App.Proc., Rule 45A.

121 Criminal Law 01030(1)I10k1030(1) Most Cited Cases

The plain error exception to the contemporaneousobjection rule is to be used sparingly , solely inthose circumstances in which a miscarriage ofjustice would otherwise result . Rules App.Proc.,Rule 45A.

131 Criminal Law 01035(2)I I0k1035(2) Most Cited Cases(Formerly 110k1036.1(3.1), 203k325)

Capital murder defendant failed to preserve forappellate review claim that trial court improperlygranted state's motion in limine preventing defensefrom presenting evidence that victim was drugdealer, and, thus , claim was subject to plain errorreview , where trial court indicated willingness toreconsider ruling on motion and defendant did notraise issue again . Rules App.Proc., Rule 45A.

14] Criminal Law 01044.2(1)110k1044 . 2(l) Most Cited Cases

When a party seeking to introduce evidence suffersan adverse ruling on the opposing party's motion inlimine , the adverse ruling alone , unless absolute orunconditional , does not preserve the issue forappellate review.

151 Criminal Law 01035(2)110k1035(2) Most Cited Cases

Grant of state 's motion in limine preventing defensefrom presenting evidence that capital murder victimwas drug dealer did not constitute plain error, whereallegation that murder was committed in retaliationfor bad drug deal was not presented until after statefiled motion , defendant failed to mention bad drug

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deal in statements to police, and trial court indicatedwillingness to reconsider ruling on motion ifdefendant informed court that he intended to testify,but defendant failed to so inform court and failed to,raise issue again . Rules App.Proc., Rule 45A.

[61 Criminal Law €1044.2(1)110k1044.2(1) Most Cited Cases

Capital murder defendant's claim that circumstancessurrounding his interrogation were coercive wassubject to plain error review, where defendant failedto allege specific facts in motion to suppress tosupport claim. Rules App.Proc., Rule 45A.

17] Criminal Law €412.1(4)I10k412.1(4) Most Cited Cases

Detective's misrepresentation that capital murderdefendant's fingerprints were found on soda cuprecovered from stolen vehicle involved in murderdid not render defendant's inculpatory statementinvoluntary, where defendant initiated contact withpolice, defendant was not subjected to lengthyinterrogation, by making misrepresentationdetective was attempting to inform defendant thathe had already been connected with vehicle so thatdefendant would be truthful in making statement,defendant had previously been arrested on othercharges, and there was no evidence that defendantwas threatened or coerced or that officers promiseddefendant anything in exchange for statement.

181 Criminal Law €414110k414 Most Cited Cases

181 Criminal Law €531(1)I10k531(1) Most Cited Cases

Confessions and inculpatory statements arepresumed to be involuntary and inadmissible.

191 Criminal Law €517.1(2)110k517.1(2) Most Cited Cases

[9J Criminal Law €518(1)II Ok518(1) Most Cited Cases

For a confession to be properly admitted intoevidence , the state must prove that the defendantwas informed of his Miranda rights and that theconfession was voluntarily given. U.S.C.A.Const.Amend. 5.

[10] Criminal Law €1158(4)110k1158(4) Most Cited Cases

Page 2

Trial court's finding of voluntariness of confessionneed only be supported by a preponderance of theevidence.

[111 Criminal Law €1158(4)1 lOk1158(4) Most Cited Cases

A trial court's determination as to whether aconfession is voluntary will not be disturbed onappeal unless it is manifestly contrary to the greatweight of the evidence.

1121 Criminal Law €1144.12110k1144.12 Most Cited Cases

In reviewing the correctness of a trial court's rulingon a motion to suppress, the Court of CriminalAppeals makes all the reasonable inferences andcredibility choices supportive of the decision of thetrial court.

113] Criminal Law € 1158(4)11 Ok1158(4) Most Cited Cases

A trial court's ruling on a motion to suppress willnot be disturbed unless it is palpably contrary to thegreat weight of the evidence.

1141 Criminal Law €412.1(1)I I0k412.1(1) Most Cited Cases

1141 Criminal Law €519(1)I I Ok519(1) Most Cited Cases

The test for determining whether a confession oranother inculpatory statement is involuntary is notwhether the defendant bargained with the police,but whether in his discussions with the police,which may have included bargaining, thedefendant's will was overborne by apprehension ofharm or hope of favor.

1151 Criminal Law €412.1(1)110k412. I (I) Most Cited Cases

[ 15J Criminal Law €519(1)I IOk519(1) Most Cited Cases

To determine if a defendant's will was overbornewhen he made a confession or another inculpatory

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statement, the court must assess the conduct of thelaw enforcement officials in creating pressure andthe defendant's capacity to resist that pressure; thedefendant's personal characteristics as well as hisprior experience with the criminal justice system arefactors to be considered in determining thedefendant's susceptibility to police pressures.

1161 Criminal Law X412.1(1)110k412.1(l) Most Cited Cases

[161 Criminal Law X521110021 Most Cited Cases

Subtle forms of psychological manipulation, such astrickery or deception by the police, have not beenconsidered sufficiently coercive, standing alone, torender a confession or incriminating statementinvoluntary; instead, the trial judge must examinethe totality of the circumstances surrounding thestatement to determine its voluntariness.

1171 Criminal Law 0=1035(10)110k1035(10) Most Cited Cases

[171 Criminal Law X1044.2(1)110kI044.2(1) Most Cited Cases

Capital murder defendant's claim that trial courterred in admitting inculpatory statement withoutfirst conducting suppression hearing outside jury'spresence was subject to plain error review;although defendant requested hearing in writtenmotion, he did not subsequently object when trialcourt denied motion. Rules App.Proc., Rule 45A.

1181 Criminal Law X1035(10)110k1035(l0) Most Cited Cases

Error, if any, in trial court's decision to deny motionto suppress capital murder defendant's inculpatorystatement without conducting hearing outsidepresence of jury did not constitute plain error, giventhat statement was voluntarily made. RulesApp.Proc., Rule 45.

[191 Sentencing and Punishment X1706350Hk1706 Most Cited Cases

1191 Sentencing and Punishment c'1714350Hkl7l4 Most Cited Cases

Trial court properly used capital murder defendant's

Page 3

juvenile record to assess weight it would assign tostatutory mitigating circumstance of defendant's ageat time of offense, rather than improperly treatingjuvenile record as nonstatutory aggravatingcircumstance to override jury's recommendation oflife sentence and impose death sentence.

1201 Sentencing and Punishment X1714350Hk1714 Most Cited Cases

(201 Sentencing and Punishment €1721350Hk1721 Most Cited Cases

Trial court properly considered capital murderdefendant's height and weight, in addition to otherfactors, including defendant's physical maturity,defendant's juvenile record, fact that defendant wasfather, fact that defendant used marijuana dailysince age 14, and fact that defendant consumedalcohol on regular basis, in concluding thatdefendant was physically mature adult at time ofoffense, for purpose of determining weight to assignmitigating circumstance of age at time of offense.

1211 Sentencing and Punishment X1777350Hkl777 Most Cited Cases

The decision as to whether a particular mitigatingcircumstance in a capital murder prosecution issufficiently proven by the evidence and the weightto be accorded to it rests with the trial court.

(221 Sentencin g and Punishment X1785(3)35OHkl 785(3) Most Cited Cases

Trial court made individualized sentencingdetermination in capital murder proceeding;although court analyzed mitigating circumstance ofage at time of offense in form similar to that used byFlorida court, trial court incorporated facts andevidence presented in defendant's case.

[23] Sentencing and Punishment X1784(3)350Hk1784(3) Most Cited Cases

Trial court did not base its sentencing determinationon speculation about jurors' residual doubt, butinstead carefully considered jury's recommendationin overriding that recommendation and sentencingcapital murder defendant to death; although whentrying to test reliability of advisory verdict trialcourt speculated that jury may have maderecommendation based on belief that codefendant


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fired fatal shot, trial court ultimately concluded thatassigning weight to advisory verdict based ontesting reliability of advisory verdict wasinappropriate.

(241 Sentencing and Punishment 0:^329350Hk329 Most Cited Cases

Trial court is the sentencing authority.

[251 Sentencing and Punishment X1784(3)350Hk1784(3) Most Cited Cases

Before overriding a jury's sentencingrecommendation of life imprisonment and imposingthe death penalty, a trial court must determine thatthe aggravating circumstances outweighed themitigating circumstances.

1 26) Sentencing and Punishment X308350Hk308 Most Cited Cases

By necessity, when sentencing , a trial court mayrely on information the jury did not hear.

1271 Sentencing and Punishment X1784(3)350Hkl784(3) Most Cited Cases

Trial court made adequate determination ofculpability for capital murder, in overriding juryverdict, where trial court stated that evidenceshowed that defendant shot victim and thatdefendant was ringleader in offense.

1281 Criminal Law X1038.2I lOk1038.2 Most Cited Cases

]28] Criminal Law X1038.3110ki038.3 Most Cited Cases

Claim that trial court should have instructed jury onlesser included offense of robbery was subject toplain error review, where capital murder defendantdid not request robbery instruction and did notobject when instruction was not given. RulesApp.Proc., Rule 45A.

(291 Criminal Law '795(2.50)I10k795(2.50) Most Cited Cases

Failure in prosecution for capital offense of murdercommitted during commission of first-degreerobbery to instruct jury on lesser included offense

Page 4

of robbery did not constitute plain error, wheredefendant contended that robbery was mereafterthought to murder and defendant was at least anaccomplice to murder such that there was norational basis on which jury could find defendantguilty of robbery but not of murder. Code 1975,13A-I- 9(b); Rules App.Proc., Rule 45A.

[30J Criminal Law X594(3)I I Ok594(3) Most Cited Cases

Denying motion for continuance to allow defendanttime to secure attendance of allegedly criticalwitness was not an abuse of discretion, wheredefendant failed to present any evidence thatwitness could be located and would testify, andmoreover, witness's statement was admitted intoevidence by stipulation of prosecution and defense.

1311 Criminal Law X586110k586 Most Cited Cases

1311 Criminal Law X11511 l Oki 151 Most Cited Cases

A motion for a continuance is addressed to thediscretion of the trial court, and the trial court'sruling on the motion will not be disturbed unlessthere is an abuse of discretion.

1321 Criminal Law X594(1)110k594(l) Most Cited Cases

A trial court should grant a motion for continuanceon the ground that a witness or evidence is absent ifthe following principles are established: (1) theexpected evidence must be material and competent;(2) there must be a probability that the evidence willbe forthcoming if the case is continued; and (3) themoving party must have exercised due diligence tosecure the evidence.

(331 Criminal Law X1035(3)I10k1035(3) Most Cited Cases

(331 Criminal Law X1039I I Oki 039 Most Cited Cases

Claims that trial judge improperly left courtroomwhile jurors viewed capital murder defendant'svideotaped statement and that trial judge improperlyallowed court reporter to admonish jurors to avoidmedia exposure, not to discuss case, and to be back

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at 9:30 next morning were subject to plain errorreview , where defendant failed to present claims totrial court. Rules App.Proc., Rule 45A.

134] Criminal Law €1035(3)11Oki 035(3) Most Cited Cases

134] Criminal Law €1039I I Oki 039 Most Cited Cases

Trial judge's actions of leaving courtroom whilejurors viewed capital murder defendant's videotapedstatement and of allowing court reporter toadmonish jurors to avoid media exposure, not todiscuss case , and to be back at 9:30 next morningdid not constitute plain error , where judge was notabsent during counsels ' arguments , examination ofwitnesses, or handing down of verdict, judge statedthat he had previously viewed videotape andinstructed jurors about videotape before leaving,court adjourned for day immediately after videotapewas played, court reporter made same comments tojurors that judge had made when court previouslyadjourned for day , and defendant failed to allegethat error occurred during judge's absence. RulesApp.Proc., Rule 45A.

1351 Criminal Law €1166.2111Oki166.21 Most Cited Cases

The rule that it is the presiding judge's duty to bevisibly present during every moment in a trial sothat he can always see and hear all that is being saidand done does not mandate a reversal in everyinstance of his absence.

1361 Criminal Law €511.1(7)I10k511.1(7) Most Cited Cases

Evidence was sufficient to corroborate accomplices'testimony concerning robbery element of capitalmurder; in addition to defendant 's conduct andinculpatory statements to law enforcement officials,state introduced eyewitness testimony and physicalevidence connecting defendant with offense. Code1975, § 12-21-222.

1371 Criminal Law €511.1(2.1)I IOk5l l.1(2.l) Most Cited Cases

1371 Criminal Law €511.1(3)I lOk5l 1.1(3) Most Cited Cases

Page 5

While evidence corroborating an accomplice'stestimony need not be strong , it must be ofsubstantive character, be inconsistent withdefendant 's innocence, and do more than raise asuspicion of guilt. Code 1975, § 12-21-222.

1381 Criminal Law €511.2I IOk5 l l.2 Most Cited Cases

The means for determining if there is sufficientevidence to corroborate an accomplice 's testimonyis to set aside the accomplice 's testimony anddetermine whether the remaining evidence tends toconnect the defendant with the commission of theoffense . Code 1975, § 12-21-222.

1391 Criminal Law €741(5)110k741(5) Most Cited Cases

Whether evidence corroborating an accomplice'stestimony exists is a question of law to be resolvedby the trial court; the evidence's probative forceand sufficiency are jury questions. Code 1975, §12-21-222.

1401 Criminal Law €511.3110k511.3 Most Cited Cases

Circumstantial evidence is sufficient to showcorroboration of an accomplice's testimony. Code1975, § 12-21-222.

1411 Criminal Law €511.1(1)I I0k511.1(1) Most Cited Cases

A combination of facts may be sufficient tocorroborate an accomplice 's testimony even thougheach single fact, standing by itself, is insufficient.Code 1975, § 12-21-222.

1421 Criminal Law €511.1(1)110k5 l 1.1 (1) Most Cited Cases

Corroborative evidence need not directly confirmany particular fact nor go to every material factstated by an accomplice . Code 1975, § 12-21-222.

1431 Criminal Law €511.1(7)I IOk511.1(7) Most Cited Cases

Even assuming codefendants were accomplices tocapital murder, the state was not required to presentcorroborative evidence as to each element of the

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offense or as to each fact about which accomplicestestified; rather, state was simply required topresent other evidence that tended to connectdefendant to commission of the offense. Code1975, § 12-21-222.

[44] Criminal Law €1038.2I10k1038.2 Most Cited Cases

1441 Criminal Law X1038.3110k1038.3 Most Cited Cases

Claim that trial court erred by failing to instruct jurythat accomplice testimony must be corroborated byother evidence was subject to plain error review,where capital murder defendant failed to requestsuch instruction and did not object when instructionwas not given. Rules App.Proc., Rule 45A.


Failing to instruct jury in capital murder prosecutionthat accomplice testimony must be corroborated byother evidence did not constitute plain error, wherestate presented sufficient evidence to corroborateaccomplice testimony. Rules App.Proc., Rule 45A.

1461 Criminal Law X1035(5)110kl035(5) Most Cited Cases

Claim that state improperly used its peremptorychallenges to discriminate on basis of gender wassubject to plain error review, where capital murderdefendant failed to raise claim in trial court. RulesApp.Proc., Rule 45A.

1471 Criminal Law €1115(2)1 1Ok1115(2) Most Cited Cases

Trial court's finding that capital murder defendantfailed to establish prima facie case of race andgender discrimination in state's exercise ofperemptory challenges did not constitute reversibleerror , where record failed to include documentsshowing race or gender of prospective jurors orcopies of questionnaires completed by jurors.

1481 Criminal Law €1038.1(5)110k1038.1(5) Most Cited Cases

Claim that trial court's reasonable doubt instructionimproperly lowered state's burden of proof was

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subject to plain error review, where capital murderdefendant failed to present claim to trial court.Rules App.Proc_, Rule 45A.

1491 Criminal Law X1038.1(5)110k1038.1(5) Most Cited Cases

Reasonable doubt instruction , providing in part thatreasonable doubt may arise from all , part of, or lackof evidence , that state does not have to provedefendant guilty beyond all doubt , beyond shadowof doubt , or to mathematical certainty , and thatproof beyond a reasonable doubt is proof of suchconvincing character that you will be willing to relyand act upon it without hesitation in most importantof your affairs , did not improperly lower state'sburden of proof and did not constitute plain error,where there was no reasonable likelihood that juryapplied instruction in manner that would violatedefendant 's constitutional rights . U.S.C.A.Const .Amend. 14; Rules App.Proc ., Rule 45A.

1501 Criminal Law. 1036.1(6)110k1036. 1(6) Most Cited Cases

Clain that trial court improperly admitted in capitalmurder prosecution photographs and videotapeswas subject to plain error review, where defendantfailed to object to their admission at trial. RulesApp.Proc., Rule 45A.


Admission of photographs depicting character andlocation of capital murder victim's wounds did notconstitute plain error, where photographs were notunnecessarily gruesome or gory and defendantfailed to show how admission of photographsaffected or probably affected his substantial rights.Rules App.Proc., Rule 45A.

152] Criminal Law X1036.1(6)110kl036.1(6) Most Cited Cases

Admission in capital murder prosecution ofphotographs and videotapes depicting crime scene,vehicles involved in offense, and recoveredevidence did not constitute plain error, wherephotographs and videotapes were relevant anddefendant failed to show how admission ofphotographs and videotapes affected or probablyaffected his substantial rights. Rules App.Proc.,


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Rule 45A.

[531 Criminal Law C=438(1)110k438(l) Most Cited Cases

Photographic evidence is admissible if it tends toprove or disprove some disputed or material issue,to illustrate some relevant fact or evidence, or tocorroborate or dispute other evidence in the case.

[541 Criminal Law X438(1)110k438(l) Most Cited Cases

Photographs that tend to shed light on, tostrengthen, or to illustrate other testimony presentedmay be admitted into evidence.

1551 Criminal Law X438(7)110k438(7) Most Cited Cases

Photographic evidence, if relevant, is admissibleeven if it has a tendency to inflame the minds of thejurors.

1561 Criminal Law X438(5.1)110k438(5.1) Most Cited Cases

[561 Criminal Law C=675110k675 Most Cited Cases

Photographs depicting the character and location ofwounds on a deceased's body are admissible eventhough they are cumulative and are based onundisputed matters.


The fact that a photograph is gruesome is notgrounds to exclude it as long as the photographsheds light on issues being tried.

1581 Criminal Law C=438(4)110k438(4) Most Cited Cases

Photographs that depict the crime scene arerelevant, and, therefore, admissible.

1591 Criminal Law X1035(5)1 10k1035(5) Most Cited Cases

Claim that trial court improperly granted state'schallenges for cause as to prospective jurors who

Page 7

expressed objections to imposition of death penaltywas subject to plain en-or review, where capitalmurder defendant failed to present claim to trialcourt. Rules App.Proc., Rule 45A.

1601 Criminal Law 01035(5)110k1035(5) Most Cited Cases

Granting state 's challenges for cause as toprospective jurors did not constitute plain error,where prospective jurors indicated either that theycould not vote on imposition of punishment or thatthey would not vote to impose death penaltyregardless of evidence produced. Code 1975,§12-16- 152 ; Rules App. Proc ., Rule 45A.

1611 Jury 0108230k108 Most Cited Cases

The proper standard for determining whether aprospective juror may be excluded for causebecause of his views on capital punishment iswhether the juror's views would prevent orsubstantially impair the performance of his duties asa juror in accordance with his instructions and hisoath. Code 1975, § 12-16- 152.

1621 Jury X132230k 132 Most Cited Cases

A prospective juror's bias against the death penalty,for the .purpose of determining whether theprospective juror may be removed for cause, neednot be proved with unmistakable clarity, becausesuch bias cannot be reduced to question and answersessions which obtain results in the manner of acatechism. Code 1975, 12-16-152.

1631 Jury € 108230k108 Most Cited Cases

A trial judge's finding on whether a particular juroris biased against the death penalty , and, thus,removable for cause is based upon a determinationof demeanor and credibility that is peculiarly withinthe trial judge's province . Code 1975, 12-16-152.

1641 Criminal Law €1152(2)I IOkl 152(2) Most Cited Cases

A trial court's rulings on juror challenges for causebased on bias are entitled to great weight and willnot be disturbed on appeal unless clearly shown to


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be an abuse of discretion. Code 1975, § 12-16-152.

(651 Jury E 108230k108 Most Cited Cases

A blanket declaration of support of or opposition tothe death penalty is not necessary for a trial judge to

disqualify a juror for cause. Code 1975,

12-16-152.

[661 Criminal Law €1035(5)110ki035(5) Most Cited Cases

Claim that exclusion of prospective jurors violatedcapital murder defendant's right to be tried by jurycomprised of fair cross-section of community wassubject to plain error review, where defendant failedto present claim to trial court. Rules App.Proc.,Rule 45A.

(671 Jury x33(2.15)230k33(2.15) Most Cited Cases

Exclusion of prospective jurors who expressedopposition to death penalty did not violate capitalmurder defendant's right to be tried by jurycomprised of fair cross-section of community;group defined solely in terms of shared attitude thatwould substantially impair group members fromperforming juror duties did not constitute distinctivegroup in community, subject to protection. RulesApp.Proc., Rule 45A.

1681 Criminal Law X3883110k388.3 Most Cited Cases

At most, absence of forensic investigator'stestimony that he took bullet from physician whoperformed autopsy to state 's firearms expert went toweight and credibility of the evidence related tobullet, rather than its admissibility in capital murderprosecution, where state presented sufficientevidence showing that bullet was in same conditionwhen it was delivered to expert as it was whenphysician removed it from victim's body.

(69] Criminal Law X404.30110k404.30 Most Cited Cases

Proof of an unbroken chain of custody is required inorder to establish sufficient identification of theitem and continuity of possession, so as to assurethe authenticity of the item.

170] Criminal Law X404.20110k404.20 Most Cited Cases

Page 8

In order to establish a proper chain of custody, thestate must show to a reasonable probability that theobject is in the same condition as, and notsubstantially different from, its condition at thecommencement of the chain.

(71] Criminal Law X404.20110k404.20 Most Cited Cases

The purpose for requiring that a chain of custody ofevidence be shown is to establish to a reasonableprobability that there has been no tampering withthe evidence.


While each link in the chain of custody of an itemmust be identified, it is not necessary that each linktestify in order to prove a complete chain of custody.

1731 Criminal Law X40430110k404.30 Most Cited Cases

Evidence that an item has been sealed is adequatecircumstantial evidence to establish the handlingand safeguarding of the item, for the purpose ofshowing the chain of custody.


Even if there was break in chain of custody forbullet, bullet was admissible in capital murderprosecution, where physician who performedautopsy identified bullet that was introduced intoevidence as the one he removed from victim's body.Code 1975, § 12-21-13.

1751 Homicide €1165203k1165 Most Cited Cases(Formerly 203k 1163, 203k235)

Evidence was sufficient to support conviction forcapital offense of murder committed duringfirst-degree robbery; defendant and codefendantsdecided to rob victim while riding around invehicle, defendant and codefendants caused victim'svehicle to strike their vehicle, victim was shot, andcodefendants drove victim's vehicle to farm and

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took vehicle 's stereo . Code 1975, § 13A- 5-40(a)(2)

[761 Criminal Law X29(14)110k29(14) Most Cited Cases(Formerly 203k607, 203k18(5))

The capital crime of robbery when a victim isintentionally killed is a single offense beginningwith the act of robbing or attempting to rob andculminating in the act of intentionally killing thevictim ; the offense consists of two elements,robbing and intentional killing . Code 1975,13A-5-40(a)(2).

[771 Homicide €607203k607 Most Cited Cases(Formerly 203k 18(5))

Although an intentional murder must occur duringthe course of the robbery in question in order toestablish the capital offense of murder committedduring a first-degree robbery, the taking of theproperty of the victim need not occur prior to thekilling . Code 1975, § 13A-5-40(a)(2).

[781 Homicide X607203k607 Most Cited Cases(Formerly 203k 18(5))

The fact that a victim was dead at the time propertywas taken would not militate against a finding ofrobbery, for the purpose of establishing the capitaloffense of murder committed during a first-degreerobbery, if the intervening time between the murderand the taking formed a continuous chain of events.Code 1975, § 13A-5-40(a)(2).

1791 Homicide x607203k607 Most Cited Cases(Formerly 203k18(5))

1791 Homicide €1325203k1325 Most Cited Cases(Formerly 203k282)

Although a robbery committed as a mereafterthought and unrelated to a murder will notsustain a conviction for the capital offense ofmurder-robbery, the question of a defendant' s intentat the time of the commission of the crime is usuallyan issue for the jury to resolve. Code 1975, §13A-5-40(a)(2).

1801 Homicide X915203k915 Most Cited Cases,(Formerly 203k152)

Page 9

The jury may infer from the facts and circumstancesthat a robbery began when the accused attacked thevictim and that the capital offense ofmurder-robbery was consummated when thedefendant took the victim's property and fled. Code1975, § 13A-5-40(a)(2).

181] Homicide X908203k908 Most Cited Cases(Formerly 203k145)

Defendant 's intent to rob a . victim can be inferred,for the purpose of a prosecution for the capitaloffense of murder-robbery , when the interveningtime, if any , between the killing and robbery waspart of a continuous chain of events . Code 1975, §13A-5-40(a)(2).

1821 Criminal Law X1144.13(3)1 IOk1144.13(3) Most Cited Cases

1821 Criminal Law C= I 144.13(4)I IOk1144.13(4) Most Cited Cases

1821 Criminal Law X1144.13(5)I IOkI 144.13(5) Most Cited Cases

In determining the sufficiency of the evidence tosustain a conviction, the Court of Criminal Appealsmust accept as true the evidence introduced by thestate , accord the state all legitimate inferencestherefrom, and consider the evidence in the lightmost favorable to the prosecution.

1831 Criminal Law X1159.2(1)I I OkI 159.2(1) Most Cited Cases

The role of appellate courts is not to say what thefacts are, but to judge whether the evidence islegally sufficient to allow submission of an issue fordecision to the jury.

1841 Criminal Law X1159.2(2)1 l OkI 159.2(2) Most Cited CasesEvidence.

An appellate court may interfere with a jury'sverdict only when the court reaches a clearconclusion that the jury's finding and judgment are

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wrong.

(851 Criminal Law €1159.3(4)11Oki 159.3(4) Most Cited Cases

When there is ample evidence offered by the stateto support a verdict, it should not be overturnedeven though the evidence offered by the defendantis in sharp conflict therewith and presents asubstantial defense.


1861 Criminal Law C=552(3)110k552(3) Most Cited Cases

Circumstantial evidence alone is enough to supporta guilty verdict of the most heinous crime, providedthe jury believes beyond a reasonable doubt that theaccused is guilty.

1871 Double Jeopardy X30l35Hk30 Most Cited Cases

Using robbery as both element of capital offense ofmurder committed during first -degree robbery andas aggravating circumstance during sentencing didnot violate double jeopardy. U.S.C.A.Const.Amend. 5; Code 1975, §fi 13A-5- 40(a)(2),13A-5-49, 13A-5-50.

1881 Attorney and Client €13145k 131 Most Cited Cases

1881 Constitutional Law €5292k52 Most Cited Cases

1881 Constitutional Law X24292k242 Most Cited Cases


1881 Eminent Domain X2(1.1)148k2(l.1) Most Cited Cases

Statute limiting court-appointed attorney fees to$1,000 for out-of-court work for each phase ofcapital trial does not violate separation of powersdoctrine, constitute taking without justcompensation, deprive indigent capital defendantsof effective assistance of counsel, or deny equal

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protection in violation of Fifth, Sixth, Eighth, andFourteenth Amendments ,' Alabama Constitution,and Alabama law. U.S.C.A. Const.Amends. 5, 6. 8,14; Code 1972, § 15-12-21(d).

189] Sentencing and Punishment X179635OHk 1796 Most Cited Cases

Electrocution as means of capital punishment doesnot constitute cruel and unusual punishment.U.S.C.A. Const.Amend. 8.

(90J Sentencing and Punishment X1796350Hk1796 Most Cited Cases

Alabama 's method of electrocution as means ofcapital punishment does not constitute cruel andunusual punishment ; there is no showing that thestate's method of enforcing a death sentence inflictsany more pain than is absolutely necessary.U.S.C.A. Const.Amend. 8.

1911 Sentencing and Punishment X1784(3)350Hk 1784(3) Most Cited Cases

1911 Sentencing and Punishment X1785(3)350Hk1785(3) Most Cited Cases

Trial court did not improperly override jury'sunanimous recommendation that capital murderdefendant be sentenced to imprisonment for lifewithout possibility of parole for capital conviction,where trial court complied with death penaltystatute's sentencing requirements in overriding jury'sverdict and specifically explained in sentencingorder reasons for overriding jury's verdict. Code1975, § 13A-5-47(e).


1921 Sentencing and Punishment X1785(3)350Hkl785(3) Most Cited Cases

Death sentence was not imposed as result ofinfluence of passion, prejudice, or any otherarbitrary factor; trial court carefully consideredjury's advisory verdict of life imprisonment andweighed aggravating circumstances, including thatdefendant committed capital offense while he oraccomplice was engaged in commission of robberyand that defendant committed offense while undersentence of imprisonment, against mitigating


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circumstances , including that defendant was 18years old at time of offense , that defendantvoluntarily surrendered to police , that defendant didnot attempt to evade probation officer once he wasdeclared delinquent, that defendant was truthful tohis mother , that defendant was not violent towardhis girlfriend , that according to aunt defendant wastruthful , and that defendant exhibited remorse.Code 1975, ti§ 13A-5-49(1, 4), 13A-5-51(7),

13A-5-53(b)(1).

1931 Sentencing and Punishment 01681350Hk 1681 Most Cited Cases

1931 Sentencing and Punishment„1704350Hkl704 Most Cited Cases

1931 Sentencing and Punishment X1714350Hkl714 Most Cited Cases

Death sentence was appropriate for defendant, whocommitted capital offense of murder committed

during first-degree robbery, given aggravating

circumstances , including that defendant committedcapital offense while he or accomplice was engagedin commission of robbery and that defendantcommitted offense while under sentence ofimprisonment, and mitigating circumstances,including that defendant was 18 years old at time ofoffense , that defendant voluntarily surrendered topolice , that defendant did not attempt to evadeprobation officer once he was declared delinquent,that defendant was truthful to his mother, thatdefendant was not violent toward his girlfriend, thataccording to aunt defendant was truthful , and thatdefendant exhibited remorse . Code 1975, §§13A-5-49(1, 4), 13A-5-51(7), 13A-5-53(b)(2).

[941 Sentencing and Punishment €168135014k1681 Most Cited Cases

Imposing death sentence on defendant, who wasconvicted of capital offense of murder committedduring first-degree robbery, was neitherdisproportionate nor excessive, given that similarcrimes were being punished by death throughoutstate . Code 1975, § 13A-5-53(b)(3).*925 Bryan A. Stevenson and Randall ScottSusskind, Montgomery, for appellant.

Bill Pryor, atty. gen., and Kathryn D. Anderson,asst. atty. gen., for appellee.

Page 1 l

BASCHAI3, Judge.

The appellant, Shonelle Andre Jackson, wasconvicted of capital murder for the killing ofLe£rick Moore. The murder was made capitalbecause it occurred during the commission of arobbery in the first degree. See § 13A- 5-40(a)(2),Ala.Code 1975. The appellant was also convictedof first-degree theft of property for stealing avehicle owned by Lottie Flowers. See § 13A-8-3,Ala.Code 1975. After a sentencing hearing, the juryrecommended, by a vote of 12-0, that the. appellantbe sentenced to life imprisonment without thepossibility of parole for the murder of LefrickMoore. The trial court overrode the jury'srecommendation and sentenced the appellant todeath by electrocution for the capital offense. [FNIJThe trial court also sentenced the appellant, as ahabitual offender with three prior felonyconvictions, to life imprisonment for the theftconviction. See § 13A-5-9(c)(2), Ala.Code 1975.

FNI. The trial court's sentencing order isattached as an Appendix to this opinion.

The evidence showed that, on April 25, 1997, theappellant, Antonio Barnes, Eric Williams, andChristopher Rudolph were riding around thewestern area of Montgomery in a stolen, gray BuickLeSabre automobile. The appellant had previouslyasked Barnes to steal a vehicle for him, and Barneshad done so. The appellant was driving, and themen were looking for a person named "Cocomo,"who had slapped the appellant the previous night.The appellant, Barnes, and Rudolph were armedwith pistols, and Williams was armed with ashotgun.

As they were riding around, the young men noticedthat Lefrick Moore, who was driving a redChevrolet Caprice automobile, had a good stereosystem in his vehicle, and they decided to rob him.They followed him for some time. While they werefollowing Moore, the appellant purchased a softdrink from a Dairy Queen restaurant. When theywere on the service road leading into the SmileyCourt housing area, the appellant pulled the Buickin front of Moore's vehicle, causing Moore's vehicleto hit the Buick. The appellant got out of the Buickand shot at Moore. Williams also fired the shotgun.*926 Moore and his passenger, Gerard Burdette,

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got out of their vehicle and ran. Burdette ran to theSylvest Farms plant to get help. Moore, who had

been shot, fell facedown in the street and died. The

coroner testified that the cause of death was a

gunshot wound to his chest. Based on these events,

the appellant , Barnes , Williams, and Rudolph were

indicted for capital murder in connection withMoore's death.

The evidence showed that Lottie Flowers' gray1991 Buick LeSabre was stolen on April 25, 1997,

from the parking lot of the Brookview Apartments.

When police later recovered it, it had a brokenwindow, a broken steering column , and a dent onthe passenger side . Officers also ,recovered a DairyQueen cup from the vehicle. Testimony indicated

that it was the vehicle driven by the appellant andhis codefendants in connection with the murder.

Victoria Moss testified that, on April 25, 1997, as

she was driving near the Smiley Court area, she saw

a gray car "cut" in front of a red car. Shortlythereafter, one of the occupants of the red car gotout of the vehicle and ran toward a nearby housingarea . She also saw someone, who was lateridentified as the victim, running toward her vehicle,but he fell facedown in the street before he reached

her vehicle. She went to check on the man , but thegray car started corning toward her very quickly.She ran out of the road and into the grass until thegray car drove away. She checked on the victimand then went to get help.

Leroy Geary, who was employed nearby at theSylvest Farms plant , also saw the gray car "cut" in

front of the red car and run the red car into the curb.He then saw someone fire a weapon at the red carfrom the driver's side of the gray car. He described

the shot as a loud bang , like one from a shotgun,and stated that it was quickly followed by the soundof shattering glass and what sounded like at leasttwo rounds fired from a pistol . He also observedsomeone, who was later identified as Burdette,running toward the Sylvest Farms facility. Burdettestated that he had been in one of the vehicles

involved in the confrontation.

A.C. Porterfield owns a farm on Old HaynevilleRoad. In April 1997, he saw the victim's vehicleparked in the pasture on his farm and saw threeyoung black men walking around the vehicle. Hetold them to leave , and he telephoned a friend whoworked for the Montgomery Police Department.

Page 12

During their investigation of the murder , policeofficers found an empty .380 MagTech brand shellcasing at the scene of the murder ; amber glass inthe road at the crime scene that matched the blinkerlight on the victim 's car; a box containing 35unfired rounds of .380 MagTech brand ammunitionfrom the appellant's residence ; Flowers ' vehicle,which had a broken steering column, a brokenwindow , and a dent in the side; a Dairy Queen cupin Flowers ' vehicle; the front of a stereo on a carparked beside the victim 's car in Porteifield'spasture; and the victim's vehicle , from which thestereo was missing . The police also recovered thevictim's stereo from Williams' girlfriend 's residence.

Joe Saloom, a firearms and toolmarks examineremployed by the Alabama Department of ForensicSciences , examined the empty shell casing found atthe scene of the murder, the bullet recovered fromthe victim's body, and the box of ammunition foundat the appellant 's residence. He testified that theempty shell casing was a MagTech shell, like dieones in the box recovered from the appellant'sresidence . He explained that the bullet recoveredfrom the victim's body was a tired "jacketed" bulletthat was consistent with *927 . 380 caliber . He alsotestified that it would have been consistent withcoming from the empty shell casing the officersrecovered from the scene. He further explained thatthe shell casing would have been ejected when thegun was fired.

Antonio Barnes , who is also known as DeonBarnes , testified that the appellant asked him tosteal a car for him and that they left Trenholm Courtand went to the Brookview Apartments to do so.While there, he broke the back window and thesteering column and stole Lottie Flowers ' gray 1991Buick LeSabre. The appellant was with him at thetime, but he rode back to Trenholm Court withanother person . Barnes drove the car back toTrenholm Court and met the appellant , who thenstarted driving the vehicle. While there, theypicked up Christopher Rudolph and Eric Williams.Barnes had a . 357 magnum handgun the appellanthad given him earlier , the appellant had a .380pistol , Rudolph had a 9mm pistol , and Williams didnot have a weapon . They went by Barnes' sister-in-law's house, where they obtained a shotgun forWilliams.

The appellant told Barnes that Cocomo hadslapped him at a club and that he wanted to "holler


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at" Cocomo, so they drove around the western partof Montgomery looking for Cocomo. Barnestestified that they drove around for about 20 to 30minutes looking for Cocomo, but that they did notfind him. They then drove to the Smiley Court area,where they saw the victim driving his vehicle.Rudolph recognized the car and told them that thecar had a good stereo system. At that point, theappellant told the other three that they were about torob the victim. Barnes and Rudolph asked theappellant to take them back to Trenholm Court, butthe appellant refused to do so.

The appellant followed the victim for a while and,during that time, bought a soft drink from DairyQueen. When they were on the service road leadingto Smiley Court, the appellant sped around thevictim's vehicle and cut in front of it, causing thevictim's vehicle to tun into the Buick. Theappellant and Williams jumped out of the vehiclewith their weapons, and Barnes heard two shots.He saw the victim and his passenger running awayfrom the vehicle. Barnes and Williams then got intothe victim's vehicle, drove it to a farm off OldHayneville Road, and parked it in a pasture.Williams pulled the stereo out of the vehicle andwent through the trunk of the vehicle. They left thevictim's vehicle parked in the pasture.

Barnes testified that, when he saw the appellant thenext day and told him the victim had died, theappellant did not seem worried about it. Instead, hewanted to know where the victim's vehicle was.The appellant, Barnes , and another person went tothe pasture where the vehicle was parked. Theappellant stated that he wanted to take the motor outof the vehicle and strip the rest of the vehicle.However, Mr. Porterfield arrived about that time,and they left before they could strip the vehicle.

Eric Williams testified that, on the day of themurder, the appellant asked him if he knew how tosteal a car. He responded that he did not, but toldhim Antonio Barnes did. Later, the appellant andBarnes approached him driving a gray Buick, andhe got into the vehicle with them. Rudolph also gotinto the vehicle with them. The appellant wasdriving and had a .380 pistol with him. Barnes andRudolph also had weapons. Because Williams didnot have a weapon when he got into the car, theyretrieved a shotgun for him.

Williams testified that a person named Cocomo

Page 13

had previously slapped the appellant. He, theappellant, Barnes, and Rudolph *928 rode aroundlooking for Cocomo because the appellant wantedto talk to Cocomo about slapping him. They sawCocomo at one point, but Cocomo did not stop hisvehicle. After that, the appellant told the threepassengers he wanted to rob someone . Williamsasked the appellant to take him back to TrenholmCourt, but the appellant refused to do so.

As they were driving, they saw the victim, who wasdriving a red Chevrolet Caprice. At that point, theappellant told them they were going to rob him.They followed the victim for a while, during whichtime the appellant purchased a soft drink from DairyQueen. On the service road leading into SmileyCourt , the appellant pulled the Buick in front of thevictim's vehicle, and the victim's vehicle ran into theBuick. The appellant jumped out, started shooting,and said, "M----- f-----, no need in you runningnow." (R. 385.) The victim and his passenger gotout of the Caprice and ran. Williams heard twoshots. When he saw cars approaching the scene, heshot the shotgun into the air. After the shooting,Williams and Barnes got into the victim's vehicleand left. Williams was driving. They drove to OldHayneville Road and parked the vehicle in apasture . He testified that Barnes took the stereo outof the vehicle and that they left the vehicle parkedin the pasture and returned to Trenholm Court.

When Williams saw the appellant again that night,the appellant was returning from a club . The nextday, when he told the appellant that the victim haddied , the appellant responded that he "didn't give af--- because he didn 't stay where we stayed at." (R.392.)

Christopher Rudolph also testified about the eventssurrounding the murder. He got into the gray Buick,which the appellant was driving. At that time, hehad a 9mm pistol, the appellant had a .380 pistol,and Barnes had a .357 magnum handgun. Williamsdid not have a gun. However, the appellant askedRudolph if he had another gun because he andWilliams had some business to take care of with aperson named Cocomo. They picked up a shotgunhe owned and gave it to Williams, and then drovearound the west side of Montgomery looking forCocomo. They saw Cocomo at one point, but hedrove away.

Rudolph remembered a discussion about


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committing a robbery, but he did not remember whoinitiated the discussion. When they were near theSmiley Court area, they saw the victim. He noticedloud music coming from the victim's car. Theappellant said he wanted to rob the victim, so theyfollowed his car for a while. While they werefollowing the victim, the appellant bought a softdrink from a Dairy Queen. When they were on theSmiley Court service road, the appellant pulled theBuick in front of the victim's vehicle, causing thevictim's vehicle to hit the Buick. The appellant gotout and shot once, breaking the glass in the victim'svehicle. The victim and his passenger ran awayfrom the victim's vehicle. Williams then got out ofthe car and shot into the air. The.appellant got backinto the car and drove to where the victim had fallenfacedown in the street . The appellant stated that hewanted to go through the victim's pockets, butRudolph stopped him from doing so. Thereafter, heand the appellant went by a club, but it was closed,so the appellant dropped him off and left. He didnot see the appellant again after that.

Detective Andrew Signore, who was employed bythe Montgomery Police Department, led theinvestigation in the case . He testified that Barnes,Williams, and Rudolph turned themselves in andmade statements to the police about the murder.*929 Barnes made a statement on April 27, 1997,and Williams and Rudolph made statements onApril 28, 1997.

Signore testified that the appellant voluntarily wentto the police station on April 29, 1997, atapproximately 2:05 p.m. Signore advised theappellant of his Miranda rights at approximately2:16 p.m., and the appellant voluntarily waivedthose rights. Detective C.D. Phillips was presentthe entire time. Signore testified that neither officermade any threats or promises to the appellant.While there, the appellant gave several differentaccounts about what happened on the day of themurder. He initially denied any involvement in themurder and denied being with the threecodefendants at the time of the murder. However,he admitted that he had been with one of thecodefendants earlier in the afternoon or eveninglooking for Cocomo.

Signore then told the appellant that the officers hadrecovered a Dairy Queen cup from Flowers' vehicleand that his fingerprints were on the cup. At thatpoint, the appellant admitted he had been in

Page 14

Flowers' vehicle, but he denied being involved inthe murder. Signore testified that the appellantneeded a "reality check" because the othercodefendants had already all testified that theappellant had been driving the stolen vehicle andhad stopped at Dairy Queen to buy a drink.Although he knew that the officers had recovered aDairy Queen cup from the vehicle, he did not knowwhether the appellant's fingerprints were on the cup.The appellant then admitted that he had askedBarnes to steal a vehicle, that he went to theBrookview Apartments with Barnes to steal theBuick, and that he had been driving around the westside of Montgomery in the vehicle. However, hestated that he separated from the codefendantsbefore the murder. The officers videotaped andprepared a transcript of this statement.

After they videotaped his statement, the appellantasked if he could change his statement and admittedthat he had not told the officers the truth. He thenadmitted that he had been with the threecodefendants and that he had had a .380 pistol thatevening. However, he said that Barnes was driving.In most other respects, his statement matched thoseof his three codefendants. When he asked whetherthe victim was killed with a shotgun, the officers didnot respond, and the conversation ended.

(1][21 The appellant raises several issues on appealthat he did not present to the trial court. The lack ofan objection at trial will not bar our review of anissue in a case involving the death penalty.However, it will weigh against any claim ofprejudice. Er parte Kennedy, 472 So.2d 1106(Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88L.Ed.2d 325 (1985). Thus, we have reviewed therecord for any error, whether plain or preserved. SeeRule 45A, Ala. R.App. P. Rule 45A provides:

"In all cases in which the death penalty has beenimposed, the Court of Criminal Appeals shallnotice any plain error or defect in the proceedingsunder review ... whenever such error has orprobably has adversely affected the substantialright of the appellant."

"[This] plain-error exception to thecontemporaneous-objection rule is to be 'usedsparingly, solely in those circumstances in which amiscarriage of justice would otherwise result.' "United States v. Young, 470 U.S. 1, 15, 105 S.Ct.1038, 1046, 84 L.Ed.2d 1 (1985) (quoting UnitedStates v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584,1592, 71 L.Ed.2d 816 n. 14 (1982)).


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1.

[3] The appellant's first argument is that the trialcourt improperly granted the State's motion inlimine, which prevented *930 die defense frompresenting evidence that the victim was a drugdealer. He contends that the motive for the murderwas retaliation for a bad drug deal, not robbery.Thus, he argues that the ruling effectively preventedhim from presenting a defense, fromcross-examining witnesses , from testifying, andfrom presenting mitigation evidence. He furthercontends that such evidence would have shown theweakness of the State's contention that the murderoccurred during a robbery, whitb made the murdercapital , and that the jury could have determined thathe was guilty only of intentional murder, anoncapital offense.

The State filed a pretrial motion in limine askingthe trial court to prevent the defense fromintroducing evidence that the victim had been adrug dealer, contending that such evidence wouldbe irrelevant and immaterial . In response, thedefense argued that such evidence was relevant tothe motive for the confrontation and would berelevant in sentencing . The trial court conducted ahearing on the motion . At that time , defensecounsel argued that he wanted to cross-examinewitnesses about whether they knew the victim was adrug dealer . He also stated that the defense theorywas that a bad drug deal, and not robbery, was themotive for the murder. The trial court granted theState 's motion,

On the day the trial began, the following occurred:"[Defense counsel]: Judge, we would ask theCourt to reconsider the ruling on the motion inlimine and at least withhold ruling until maybethe sentencing phase . Our client--we have notmade a decision as to whether we are going toallow our client to testify or not. His testimony, ifhe does testify, will be diametrically opposed tothe facts--underlying facts as the district attorneyhas presented them, which creates a conflict and ajury question. His testimony deals with a drugdeal. I don't want to be put in a situation wherewe can't ask our client questions about what reallyhappened in this case . We would be limited, tohave his testimony limited."The Court: Well, you know, that's the first Ihave heard of that, for the record. It's not acriticism . It's just for the record. You know, I

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will-- you know, if and when you decide whetheror not your client is going to testify, I will let youask me to reconsider it at that point."

(R. 37-38.) The defense did not raise the issueagain and did not ask the trial court to reconsider itsruling.

[4] Where a party seeking , to introduce evidencesuffers an adverse ruling on the opposing party'smotion in limine , the adverse ruling alone , unlessabsolute or unconditional , does not preserve theissue for appellate review. Morton v. State, 651So.2d 42 (Ala.Cr.App.1994). In this case , becausethe trial court indicated its willingness to reconsiderits ruling on the motion , that ruling was notabsolute . Therefore, the appellant "was required tooffer the testimony into evidence and obtain a rulingto which , if adverse, [he] could make an offer ofproof and thereby preserve the issue for appeal.(He] did not do so and thus , has not preserved anyerror for review ." Perry v. Brcrkefreld, 534 So.2d602, 607 (Ala.1988 ). Accordingly, we must reviewthe appellant 's claim under the plain error rule.Rule 45A, Ala. R.App. P.

[5] We have reviewed the motion in limine, thedefense 's response, the discussions about themotion , and the remaining evidence in this case.Based on that review, we do not find any plain errorin this regard . The allegation that the murder wascommitted in retaliation for a bad drug deal was notpresented until after the State had filed its motion inlimine . The *931 appellant did not mention a baddrug deal in his statements to the police and, in fact,he stated that he did not know the victim.Furthermore , Burdette , Barnes , Williams, andRudolph did not mention anything about a bad drugdeal in their statements . Instead, the appellant madethis allegation only after the State had filed itsmotion in limine . Furthermore , the appellant onlyspeculated that some of the witnesses might haveknown that the victim was a drug dealer and thatthey might testify that the victim was killed becauseof a bad drug deal. Likewise, he did not make anoffer of proof as to what the appellant 's testimony inthis regard would be. Finally, the trial court wouldhave reconsidered its ruling before the trial began ifthe appellant had informed it that he intended totestify . If the court had changed its ruling, theappellant could have cross-examined witnesses andtestified about the alleged bad drug deal . However,the appellant did not inform the trial court that heintended to testify and , in fact, did not raise the

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issue concerning the motion in limine again. Forthese reasons , we reject the appellant's claims.

II.

The appellant's second argument is that the trialcourt improperly admitted into evidence hisstatement about the murder and improperly refusedto conduct a suppression hearing outside thepresence of the jury. Before trial , he filed a motionto suppress his statement and requested that the trialcourt conduct a hearing on his notion. The trialcourt denied the motion without conducting ahearing . At trial, the State introduced a videotapeof, and a written copy of, the appellant's statementinto evidence.

A.

[6] The appellant alleges that he did not voluntarilymake the statement. First, he contends that, becauseof his age and lack of experience with lawenforcement officers and because he voluntarilywent to the police station, he was "particularlyvulnerable to police tactics of deception."(Appellant's brief at p. 14.) In his motion tosuppress his statement, the appellant contended thatthe circumstances surrounding the interrogationwere coercive, but he did not allege any specificfacts to support his contention. Because he did notpresent the specific claim he now raises to the trialcourt, we will review it under the plain error rule.Rule 45A, Ala. R.App. P.

[7] Second, the appellant contends, as he did in hismotion to suppress his statement, that DetectiveSignore tricked him into giving the statement bylying to him about having found his fingerprints ona Dairy Queen cup recovered from Flowers' vehicle.In support of his motion to suppress, the appellantrecited a portion of Detective Signore's preliminaryhearing testimony. At the preliminary hearing andat trial , Detective Signore admitted that, eventhough officers had recovered a Dairy Queen cup.from Flowers' vehicle, he did not know whether theappellant's fingerprints were on the cup. Hetestified that he knew from the three codefendantsthat the appellant had been with them and hadpurchased a soft drink from Dairy Queen on thenight of the murder. However, in his initialstatement to Signore, the appellant had denied beingwith any of the codefendants on the day of themurder and had denied being in Flowers' vehicle.

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Signore testified that he made the statement aboutthe cup and the fingerprintse because of those denialsand to encourage the appellant to be truthful withhim. After Detective Signore made therepresentations about the cup, the appellantadmitted that he had been in the car and had *932had the Dairy Queen cup, but he stated that heseparated from the codefendants early in theevening and denied being involved in the murder.Even though he made several statements about hisconduct on the day of the murder, the appellantnever admitted that he killed the victim.

[8][9][l0][ll][12][13][l4][15][16] Confessionsand inculpatory statements are presumed to beinvoluntary and inadmissible. Ex parte Callahan,471 So.2d 463 (Ala.), cert. denied, 474 U.S. 1019,106 S.Ct. 567, 88 L.Ed.2d 552 (1985). For aconfession to be properly admitted into evidence,the State must prove that " 'the defendant wasinformed of his Miranda rights and that theconfession was voluntarily given.' " Johnson v.State, 680 So.2d 1005, 1007 (Ala.Cr.App.1996)(quoting Mann v. State, 581 So.2d 22, 23(Ala.Cr.App.1991))_

" 'In detennining whether a confession isvoluntary, the trial court's finding of voluntarinessneed only be supported by a preponderance of theevidence. Seawright v. State, 479 So.2d 1362(Ala.Crim.App. 1985). The trial court's decisionwill not be disturbed on appeal unless it ismanifestly contrary to the great weight of theevidence.' ''

Howard v. State, 678 So.2d 302, 306(Ala.Cr.App.1996) (quoting Dixon v. Slate, 588So.2d 903, 907 (Ala.1991), cert. denied, 502 U.S.1044, 112 S.Ct. 904, 116 L.Ed.2d 805 (1992)).

" ' "in reviewing the correctness of the trialcourt's ruling on a motion to suppress, this Courtmakes all the reasonable inferences andcredibility choices supportive of the decision ofthe trial court." ' Kennedy v. State, 640 So.2d 22,26 (Ala.Cr.App. 1993), quoting Bradley v. State,494 So.2d 750, 761 (Ala.Cr.App.1985), affd, 494So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923,107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). A trialcourt's ruling on a motion to suppress will not bedisturbed unless it is 'palpably contrary to thegreat weight of the evidence.' Parker v. State,587 So.2d 1072, 1088 (Ala.Cr.App.1991)."

Rutledge v. State. 680 So.2d 997, 1002(Ala.Cr.App. 1996).

"The Supreme Court has stated that when a court


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is determining whether a confession was givenvoluntarily it must consider the 'totality of thecircumstances.' Boulden v. Holman, 394 U.S.478, 480, 89 S.Ct. 1138, 1139- 40, 22 L.Ed.2d433 (1969); Greenwald v. Wisconsin , 390 U.S.519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77(1968); see Beecher v. Alabama , 389 U.S. 35,38, 88 S.Ct. 189, 191, 19 L.Ed.2d 35 (1967).Alabama courts have also held that a court mustconsider the totality of the circumstances todetermine if the defendant's will was overborneby coercion or inducement. See Er pane

Matthews, 601 So.2d 52, 54 (Ala.) ( stating that acourt must analyze a confession by looking at thetotality of the circumstances ),,-cert. denied, 505U.S. 1206, 112 S.Ct. 2996; 120 L.Ed.2d 872(1992); Jackson v. State. 562 So.2d 1373, 1380(Ala.Cr.App.1990) ( stating that , to admit aconfession , a court must determine that thedefendant's will was not overborne by pressuresand circumstances swirling around him); Eakesv. State. 387 So.2d 855, 859 (Ala.Crim.App.1978)

(stating that the true test to be employed is'whether the defendant 's will was overborne at thetime he confessed ') (emphasis added)....

"[T]he test of involuntariness of a confession, orother inculpatory statement , is not whether thedefendant bargained with the police, but whetherin his discussions with the police , which mayhave included bargaining , the defendant's willwas overborne by 'apprehension of harm *933 orhope of favor.' See Gaddv, 698 So.2d at 1154(quoting Ex parte Weeks, 531 So.2d 643, 644(Ala.1988)); Culombe, 367 U. S. at 602 , 81 S.Ct.at 1879[, 6 L.Ed.2d 1037]; Jackson, 562 So.2d at1380. To determine if a defendant's will has beenoverborne , we must assess ' the conduct of the lawenforcement officials in creating pressure and thesuspect 's capacity to resist that pressure '; '[t]hedefendant 's personal characteristics as well as hisprior experience with the criminal justice systemare factors to be considered in determining [thedefendant's] susceptibility to police pressures.'Jackson, 562 So.2d at 1380-81 (citationsomitted)."

McLeod v. State, 718 So.2d 727, 729-30 (Ala.),cert. denied, 524 U.S. 929, 118 S.Ct. 2327, 141L.Ed.2d 701 ( 1998). Finally , with regard tomisrepresentations by police officers during aninterrogation , we have held:

"Alabama follows the general rule that aconfession is not inadmissible merely because it

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was induced by a trick or misrepresentation thatwas not reasonably calculated to lead the accusedto confess falsely . Fincher v. State, 211 Ala. 388,100 So. 657 (1924); Bates v. State, 549 So.2d601 (Ala.Cr.App.1989); Barrow v. State, 494So.2d 834 (Ala.Cr.App.1986); 2 C. Gamble,McElroy's Alabama Evidence § 200.07(7) (5thed.1996)."

Campbell v. State. 718 So.2d 123, 136(Ala.Cr.App.1997 ), cert. denied, 525 U.S. 1006,119 S.Ct. 522, 142 L.Ed.2d 433 (1998). See alsoGilder v. State, 542 So.2d 1306 (Ala.Cr.App.1988).

'[M]ore subtle forms of psychologicalmanipulation , such as trickery or deception by thepolice , have not been considered sufficientlycoercive , standing alone, to render a confessionor incriminating statement involuntary . Instead,the trial judge must examine the totality of thecircumstances surrounding the statement todeter mine its voluntariness. Frazier v. Cupp, 394U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).'

Barbour v. State, 673 So.2d 461, 467(Ala.Cr.App.1994), aft'd, 673 So.2d 473 (Ala.1995)

cert. denied, 518 U.S. 1020, 116 S.Ct. 2556, 135L.Ed.2d 1074 (1996) (quoting Fx pane Hill, 557So.2d 838, 841 (Ala .1989)).

Detective Signore testified about the circumstancessurrounding the appellant 's confession , includingthe fact that the appellant initiated contact with thepolice about the murder investigation . He testifiedthat the appellant voluntarily went to the policestation at 2 :05 p.m, on April 29, 1997. At 2:16p.m., he and Detective C.D. Phillips advised theappellant of his Miranda rights , and the appellantsigned a waiver of rights form. Thereafter, theappellant made several statements about hiswhereabouts on the day of the murder. His

' statement that was admitted at trial began at 3:55p.m. Detective Phillips was present during the entiretime Signore spoke with the appellant . Signoretestified that neither he nor Phillips threatened theappellant or promised him anything to convince himto give a statement.

Based on the totality of the circumstances, weconclude that the appellant 's will was not overborneby the conduct of law enforcement officials . First,the appellant initiated the contact with the policeofficers about the murder investigation . Second, theofficers did not subject him to . a lengthyinterrogation. Third, Signore 's representations


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about the fingerprints on the cup, standing alone,were not reasonably calculated to lead the appellantto confess falsely. Rather, after the appellantdenied being connected to Flowers' vehicle or to themurder, Signore simply attempted to inform theappellant that he had already been connected to thevehicle *934 used in the commission of the murder,so the appellant would be truthful in making hisstatement. Fourth, the appellant's contention that hewas especially susceptible to police tactics ofdeception is belied by the presentence investigationreport, which shows that he had previously beenarrested on numerous other charges. Fifth, there isno evidence that the officers threatened or coercedthe appellant or that they promised him anything inexchange for his statement. And, sixth, we havereviewed the videotape of the statement, and it doesnot indicate that the appellant was coerced intogiving the statement. Barbour, supra. Thus, weconclude that Signore's misrepresentation was notsufficient to render the appellant's statementinvoluntary. Therefore, the trial court properlydenied the appellant's motion to suppress hisstatement.

B.

[17] Second, the appellant contends that the trialcourt erred in admitting his statement without firstconducting a suppression hearing outside thepresence of the jury. Although he requested ahearing in his written motion, he did notsubsequently object when the trial court denied themotion without conducting a hearing. Because theappellant did not present this argument to the trialcourt, we review it for plain en-or. Rule 45A, Ala.R.App. P.

[18] In his written motion to suppress hisstatement, the appellant argued only that DetectiveSignore had made a misrepresentation to him aboutfinding his fingerprints on the Dairy Queen cuprecovered from Flowers' vehicle. He did not allegeany other facts in support of his contention that hedid not voluntarily make the statement. Thus, theonly question before the trial court was the legalquestion of whether Signore's misrepresentationrendered the statement involuntary. As set forthabove, we have reviewed the evidence presented inthe motion to suppress and at trial concerning thecircumstances under which the appellant made thestatement, and we have concluded that he made itvoluntarily. Ex parte Price, 725 So.2d 1063

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(Ala.1998); Henvy v. State, 468 So.2d 896(Ala.Cr.App.1984), cert. denied, 468 So-2d 902(Ala.1985). Under the particular facts of this case,including our finding that the appellant made hisstatement voluntarily, we find that error, if any, inthe trial court's decision to deny the motion tosuppress without conducting a hearing did not riseto the level of plain error and. was, at most, harmlesserror. Rule 45, Ala. R.App. P.; Chapman v.California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d705 (1967).

[19] The appellant's third argument is that the trialcourt improperly considered his juvenile record inoverriding the jury's recommendation of a sentenceof imprisonment for life without the possibility ofparole and in sentencing him to death. Specifically,he contends that, in stating that it was relying on hisjuvenile record to rebut the statutory mitigatingcircumstance of his age at the time of the offense,the trial court essentially circumvented the law andused his juvenile record as a nonstatutoryaggravating circumstance to override the jury'srecommendation. This court addressed an almostidentical claim in Burgess v. State, 811 So.2d 557(Ala.Cr.App. 1998), holding as follows:

"Burgess specifically argues that the trial courterred by considering his history of juvenileadjudications to negate the statutory mitigatingcircumstance of Burgess's lack of a significantcriminal history and Burgess's age at the time theoffense was committed. In doing so, Burgesssays, the trial court 'deploy[ed] *935 the priordelinquencies as if they were nonstatutoryaggravation to effectively tip the balance in -favorof death.' (Appellant's brief, p. 18.)"Because juvenile adjudications are notconvictions under Alabama law, they cannot beconsidered as prior criminal activity underAlabama's capital sentencing scheme. Ex parteDavis. 718 So.2d 1166, 1178 (Ala.1998);Freeman v. State. 555 So.2d 196, 212(Ala.Cr.App.), affd, 555 So.2d 215 (Ala.1989),cert. denied, 496 U.S. 912, 110 S.Ct. 2604, 110L.Ed.2d 284 (1990). See Baldwin v. State, 456So-2d 117, 125 (Ala.Cr.App.1983), affd; 456So.2d 129 (Ala.1984), acrd, 472 U.S. 372, 105S.Ct. 2727, 86 L.Ed.2d 300 (1985). Thus,juvenile adjudications cannot negate the statutorymitigating circumstance that the defendant has nosignificant history of prior criminal activity.


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Freeman, 555 So.2d at 212. Only convictionscan negate that statutory mitigating circumstance.Id."We disagree with Burgess's characterization ofthe trial court's consideration of his juvenileadjudications. First, the trial court did not findBurgess's juvenile adjudications to be anaggravating circumstance. The record reflectsthat the trial court found only one aggravatingcircumstance: that the murder was committedduring the course of a robbery in the first degree.Moreover, the trial court did not, as Burgessmaintains, use Burgess 's juvenile adjudications tonegate the statutory mitigating circumstances thatBurgess lacked a significant criminal history andthat Burgess was only 16 years old at the time ofthe offense. Instead, it is clear from the trialcourt's sentencing order that the court consideredBurgess's history of juvenile adjudications inassessing the appropriate weight to assign to thesestatutory mitigating circumstances."Under Alabama's capital punishment statute, thetrial court is required to engage in anindividualized assessment of the weight to assignto the aggravating and mitigating circumstancesfound to exist in a particular case in order todetermine the propriety of a sentence of death.13A-5- 47(e), Ala.Code 1975; Ex parte Clisbv.456 So.2d 105, 108 (Ala.1984), cert. denied, 470U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 391(1985). It is clear, moreover, that this weighingprocess must not be 'a mere tallying ofaggravating and mitigating circumstances for thepurpose of numerical comparison.' § 13A-5-48,Ala.Code 1975. See Ex parte Clisbv, 456 So 2dat 108-09 ('The determination of whether theaggravating circumstances outweigh themitigating circumstances is not a numerical one,but instead involves the gravity of the aggravationas compared to the mitigation.'). Although it iswell-settled law in Alabama that juvenileadjudications cannot be used to negate thestatutory mitigating circumstance that thedefendant has no significant history of priorcriminal activity, Freeman, supra, 555 So.2d at212, the courts of this state have never held thatthe trial court must entirely ignore a defendant'sjuvenile adjudications in performing its 'weighing'duties. The trial court's consideration of adefendant's juvenile adjudications whenconducting the weighing process offends neithergeneral constitutional principles nor specificprovisions of Alabama law. In fact, Alabama's

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capital punishment statute contemplates that thetrial court will have any 'prior juvenile record ofthe defendant before it when it is deciding uponthe proper sentence: pursuant to § 13A-5-47,Ala.Code 1975, the trial court is required toconsider the presentence report of a defendant'convicted of capital murder, and *936 Rule26.3(b)(2), Ala.R.Crirn.P.,. specifically providesfor the inclusion of the defendant's prior juvenilerecord in the presentence report.to

"Alabama's capital punishment statute does notspecify the matters the trial court may considerwhen engaging in the process of weighing theaggravating circumstances and the mitigatingcircumstances in a particular case. Nor does thestatute require the trial court to make expressfindings explaining the process by which itweighed the aggravating circumstances and themitigating circumstances. We conclude that atrial court may. consistent with Alabama law,deem a defendant's juvenile adjudications to be arelevant consideration in its assessment of theweight to assign to the statutory mitigatingcircumstances of a defendant's lack of asignificant criminal history and a defendant's ageat the time of the offense."

Burgess, 811 So.2d at 605-06 (footnotes omitted).

In this case, a review of the trial court's sentencingorder shows that the court found that only twostatutory aggravating circumstances existed: (1) thecapital offense was committed by a person. undersentence of imprisonment, and (2) the capitaloffense was committed while the defendant wasengaged in a robbery or an attempted robbery.Nothing in the sentencing order indicates that thetrial court improperly treated the appellant'sjuvenile record as a nonstatutory aggravatingcircumstance. Furthermore, the trial court did notuse the appellant's juvenile record to negate thestatutory mitigating circumstance of the .appellant'sage at the time of the offense. [FN2] Instead, thetrial court used that record to assess the weight itwould assign to that mitigating circumstance.Under the reasoning of Burgess, such an assessmentwas proper. Therefore, the trial court did notimproperly consider the appellant's juvenile recordin overriding the jury's sentencing recommendationand in sentencing him to death.

FN2. In rejecting the mitigating


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circumstance that the appellant did nothave a significant history of prior criminalactivity, the trial court specifically notedthat the appellant's juvenile record was nota matter to consider in determiningwhether the circumstance exists. Instead,it found that the appellant did have asignificant history of prior criminal activitybecause he had three prior felonyconvictions.

IV.

The appellant's fourth argument is that the trialcourt made several errors in its sentencing order.

A.

[20][21] First, the appellant argues that the trialcourt improperly considered his physicalcharacteristics in considering the statutorymitigating circumstance of his age at the time of theoffense. He contends that his height and weight arearbitrary variables that are not relevant to his moralor criminal responsibility, and that the trial court'sconsideration of those attributes deprived him of anindividualized and reliable sentencingdetermination.

"[T]he decision as to whether a particularmitigating circumstance is sufficiently proven bythe evidence and the weight to be accorded to itrests with the trial court. See Hanev v. State. 603So.2d 368 (Ala.Cr.App.1991), affirmed, 603So.2d 412 (Ala. 1992).

'Although consideration of all mitigating

circumstances is required by the United StatesConstitution, Lockett v. Ohio, 438 U.S. 586, 98S.Ct. 2954, 57 L.Ed.2d 973 (1978), the decisionof whether a particular mitigating *937circumstance in sentencing is proven and theweight to be given it rests with the judge and jury.. Lucas v. State, 376 So.2d 1149 (Fla. 1979).'

Smith v. State. 407 So.2d 894, 901 (Fla. 1981)." '"Harrell v. State, 470 So.2d 1303, 1308(Ala.Cr.App.1984), affirmed, 470 So.2d 1309(Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269,88 L.Ed.2d 276 (1985). See also McWilliams v.

State, [640] So.2d [982] (Ala.Cr.App.1991)_"Giles v. State, 632 So.2d 568, 572(Ala.Cr.App.1992), affd, 632 So.2d 577 (Ala.1993), cert. denied, 512 U.S. 1213, 114 S.Ct. 2694, 129L.Ed.2d 825 (1994).

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We have carefully reviewed the trial court'ssentencing order, and we find the appellant'sargument to be without merit. In assessing theweight it would assign to the age mitigatingcircumstance, the trial court considered theappellant's height, weight, age, physical maturity,and juvenile record [FN3]; the fact that theappellant was the father of a three-month-old child;the fact that the appellant had used marijuana dailysince the age of 14; and the fact that the appellantconsumed alcohol on a regular basis. The trialcourt included the appellant's height and weight inthe portion of its analysis that concluded that theappellant was a physically mature adult at the timeof the offense. However, those physical attributeswere only two of several factors the trial courtconsidered in deciding what weight to assign to theappellant's age as a mitigating circumstance. Giles.supra . Accordingly, the trial court did not err in thisregard.

FN3. As discussed in Part III of thisopinion, the trial court properly consideredthe appellant's juvenile record indetermining what weight it would assign tothe age mitigating circumstance.

B.

[22] Second, the appellant argues that the trialcourt improperly plagiarized a sentencing orderwritten by a different judge, in another case, inanother state. Specifically, he challenges the trialcourt's entire analysis of the age mitigatingcircumstance, and again contends that the trial courtdeprived him. of an individualized sentencingdetermination.

In its sentencing order , the trial court specificallystated , "When considering the weight to be given toJackson's age as a mitigating factor , this case isquite similar to Shellito v. State, 701 So.2d 837(Fla.1997 )." (C.R.177 .) The court then analyzedthe mitigating circumstance in a form similar to thatused by the court in Shellito. Although it adaptedthe Florida court ' s reasoning, the trial court clearlyincorporated the facts and evidence presented inthis case in performing its analysis . Thus, the trialcourt made an individualized sentencingdetermination, and the appellant 's argument iswithout merit.


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C.

[23] Third, the appellant argues that the trial courtimproperly negated the role of the jury insentencing . Specifically, he asserts that the trialcourt relied too heavily on information the jury didnot hear and improperly suggested that the jury'srecommended sentence was based on residualdoubt. We disagree.

[24][25][26] At the outset, we note that, as set forthin Part XVIII of this opinion, in Alabama, the trialcourt is the sentencing authority. Freeman v. State,555 So.2d 196 (Ala.Cr.App.1988), affd, 555 So.2d215 (Ala.1989), cert. denied, 496 U.S. 912, 110S.Ct. 2604, 110 L.Ed.2d. 284 (1990); Murry v.State, 455 So.2d 53 (Ala.Cr.App.1983), rev'd onother grounds, 455 So.2d 72 (Ala.1984). However,before overriding a *938 jury's sentencingrecommendation, the trial court must determine thatthe aggravating circumstances outweigh themitigating circumstances. The trial court made thatdetermination in this case. Furthermore, insentencing the appellant to death, the trial courtcarefully explained why it overrode the jury'srecommendation that he be sentenced toimprisonment for life without the possibility ofparole. By necessity, a trial court, in sentencing;may rely on information the jury did not bear. Asthe trial court noted in this case, the court has thebenefit of the presentence investigation, anyadditional evidence presented at the sentencinghearing before the court, and its knowledge of legalprecedent, particularly as it applies to the weighingof aggravating and mitigating circumstances. Thus,the appellant's argument that the trial court reliedtoo heavily on information the jury did not hear iswithout merit.

Further, the trial court did not improperly suggestthat the jury made its recommendation based onresidual doubt. In its order, the trial court attemptedto determine what weight to give the jury'ssentencing recommendation. In doing so, the courtsought to compare this case to similar cases and totest the reliability of the jury's advisory verdict.When trying to test the reliability of the advisoryverdict, the court speculated that the jury may havemade its recommendation based on a belief thatanother of the codefendants fired the fatal shot.However, the trial court ultimately concluded thatassigning weight to the advisory verdict based ontesting the reliability of the advisory verdict was not

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appropriate. Thus, the trial court did not base itssentencing determination ' on speculation aboutjurors' residual doubt. Rather, the trial courtcarefully considered the jury's recommendation inoverriding that recommendation and sentencing theappellant to death. Therefore, this contention iswithout merit.

D.

[27] Fourth, the appellant argues that the trial courtdid not make an adequate determination of hisculpability for the offense. However, a review ofthe sentencing order reveals that this contention isrneritless . The trial court clearly states that theevidence showed that the appellant shot the victim.It also states that the appellant was the ringleader inthe offense . Therefore, we reject this claim.

V.

[28][29] The appellant's fifth argument is that thetrial court should have instructed the jury on thelesser included offense of robbery. However, hedid not request an instruction on robbery, and hedid not object when the trial court did not give one.Therefore, we review this contention for plain error.Rule 45A, Ala. R.App. P.

Section 13A-1-9(b), Ala.Code 1975, provides:"The court shall not charge the jury with respect toan included offense unless there is a rational basisfor a verdict convicting the defendant of theincluded offense. " (Emphasis added.) In Boyd v.State, 699 So .2d 967 (Ala.Cr.App. 1997), we held:

" 'A defendant accused of a greater offense isentitled to have the trial court charge on anylesser included offense if there is any reasonabletheory from the evidence to support the lessercharge , regardless of whether the state or thedefendant offers the evidence . Ex purte Pruitt.457 So.2d 456 (Ala.1984 ); Parker v. State, 581So.2d 1211 (Ala.Cr.App.1990 ), cert. denied, 581So.2d 1216 (Ala.1991 ). A court may properlyrefuse to charge on a lesser included offense onlywhen (1) it is clear to the judicial mind that thereis no evidence tending to bring *939 the offensewithin the definition of the lesser offense ...Anderson V. State, 507 So.2d 580(Ala.Cr.App. 1987).... Section 13A-1-9(b)provides, "The court shall not charge the jurywith respect to an included offense unless there isa rational basis for a verdict convicting the


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defendant of the included offense."'"Breckenridge v. State. 628 So.2d 1012, 1016(Ala.Cr.App.1993)."

699 So.2d at 972.

The evidence presented at trial showed that therobbery occurred after the murder . The appellantcontends that the trial court should have instructedthe jury on the lesser included offense of robberybecause the robbery allegedly was a mereafterthought to the murder and it was not committedduring the robbery . In fact , he contended at trialthat he did not have anything to do with the robberyand that Barnes and Williams stole the car onlybecause he drove away from the crime scenewithout them . He now contends that, if the jury hadbelieved his theory , it could have found him guiltyof the separate offenses of intentional murder androbbery . We disagree.

The trial court instructed the jury on the lesserincluded offense of intentional murder , thus givingthe jury the option of finding that the appellantcommitted the murder but not the robbery.However , under the evidence presented, theappellant did not actually rob the victim, althoughthere was sufficient evidence to show that that washis intent in initiating the confrontation . Under theappellant's theory that the robbery was a mereafterthought and that it did not occur during themurder, the jury could have found the appellantguilty of murder, but he would not have been guiltyof the robbery . Thus , if the jury had believed theappellant's theory and determined that the robberydid not occur during the murder, there would nothave been a rational basis for it to find that theappellant was guilty of robbery.

The appellant also contends that the jury could'have believed that the robbery did not occur duringthe murder but still could have found him guilty ofbeing an accomplice to the robbery. Thiscontention is not supported by the record . As statedabove , the evidence clearly showed that theappellant's intent when he started following thevictim was to rob the victim. If the jury determinedthat the appellant was guilty of the robbery , even ifit determined that he did not kill the victim, then itcould only have convicted him of capital murder.Under the evidence presented , he was at least anaccomplice to the murder and, more likely, theactual murderer . There was simply no rational basisunder the evidence presented on which the jury

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could find the appellant guilty of robbery and notguilty of murder . Therefore , we do not find anyplain error in this regard.

VI.

[30][31][32] The appellant's sixth argument is thatthe trial court improperly denied his request for acontinuance to allow him time to secure theattendance of an allegedly critical witness . Beforethe trial began, the appellant requested acontinuance to locate Gerard Burdette, who hadbeen riding in the victim 's vehicle at the time of themurder . Shortly after the murder , Burdette hadmade a statement about the crime to the police.Based on that statement , the appellant contendedthat Burdette 's testimony could exonerate him.[FN4] *940 The prosecution conceded thatBurdette's testimony was material , but it agreed tostipulate that Burdette 's written statement could beadmitted into evidence . The trial court denied theappellant's request for a continuance , and Burdette'sstatement was read and admitted into evidenceduring the appellant's case-in-chief.

FN4. The appellant also argues thatBurdette 's statement supported his theorythat the motive for the killing wasretaliation for a bad drug deal and that thekilling did not occur during a robbery.However, we have reviewed Burdette'sstatement, and it does not refer to a baddrug deal . Therefore, this contention isrefuted by the record and is without merit.

"A motion for a continuance is addressed to thediscretion of the court and the court's ruling on itwill not be disturbed unless there is an abuse ofdiscretion .. If the following principles aresatisfied , a trial court should grant a motion forcontinuance on the ground that a witness orevidence is absent: ( 1) the expected evidencemust be material and competent : (2) there mustbe a probability that the evidence will beforthcoming if the case is continued ; and (3) themoving party must have exercised due diligenceto secure the evidence."

Ex parse Saranthus . 501 So 2d 1256, 1257(Ala.1986) (citations omitted). At the hearing onthe motion , both the prosecutor and defense counselstated that they had attempted to locate Burdetteand that their efforts had not been successful. They


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also noted that both state and federal authorities hadoutstanding warrants for Burdette's arrest, thatBurdette's mother stated that she did not knowwhere he was, and that there had been someindication that Burdette was no longer in theMontgomery area . In its written order denying theappellant's motion, the trial court stated:

"In an attempt to accommodate all parties tosecure the appearance of Burdette, on February

20, 1998 , investigators of the District Attorney's

office and a Deputy District Attorney went to thehome of Burdette 's mother to inquire of hiswhereabouts . According to the report receivedfrom these investigators and the Deputy District

Attorney, the mother informed ..them that she hadnot seen her son in a year and it was reported thathe was not in Montgomery . Because there doesnot appear to be any reasonable likelihood thatBurdette's appearance could be secured in thereasonable foreseeable future, the motion forcontinuance is denied."The Court notes that the State stipulates that thestatement of Burdette which was taken by

Corporal Cunningham can be used as evidence inthe Defendant's behalf."

(C.R.100.) At the close of the State's

case-in-chief, when the appellant moved for ajudgment of acquittal on the ground that Burdettewas not available as a witness , the trial courtreiterated:

"As for Mr. Burdette , I have issued an order fromcompetent counsel on why I did not postpone thetrial of this case because Mr . Burdette could notbe found . But just for the • record again , based oneverything that has been reported to the Court,Mr. Burdette has charges pending against him,Class A felony charges, I believe , for robbery inthe first degree and he has apparently flown thejurisdiction of this Court. And there is no wayanybody could tell when Mr . Burdette would everbe [available .] So that is the basis of that. Notanything that counsel did or didn't do. But he isjust gone , and nobody knows when he is going tobe apprehended and brought back."

(R. 30-31.)"While we assume for present purposes that thefirst and third parts of *941 the Saranthus testwere met here, we conclude that the trial courtdid not abuse its discretion in denying thecontinuance based upon Reese's failure to satisfythe second Saranthus requirement . There wasabsolutely no showing that, if a continuance weregranted, either Ms. Taylor or Mr. Smith could be

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located. In fact, all indications pointed to thecontrary. Since even the State's efforts to findMr. Smith had proved futile, and Reese'sthree-month attempt to locate Ms. Taylor hadbeen fruitless, the trial court could rightlyconclude there was no 'probability' that thesewitnesses would be forthcoming if the case werecontinued. 'A motion for a continuance in acriminal case is addressed to the sound discretionof the trial court, the exercise of which will not bedisturbed unless clearly abused.' Fletcher v. State,

291 Ala. 67, 68, 277 So.2d 882, 883 (1973);Butler v. State, 285 Ala. 387, 393, 232 So.2d631, 635 (1970), cert. dismissed, 406 U.S. 939,92 S.Ct. 1807, 32 L.Ed.2d 140 (1972) ('unless agross abuse of the court's prerogative is shown')."

Reeve v. State, 549 So.2d 148, 151(Ala.Cr.App. 1989), overruled on other grounds,Huntk'v v. State. 627 So.2d 1013 (Ala.1992). Seealso Banks v. State, 647 So.2d 46(Ala.Cr.App.1994); Miller v. State, 602 So.2d 488(Ala.Cr.App. 1992).

Similarly, the appellant has not satisfied the secondprong of the Saranthus test. He did not present anyevidence that, even if the trial court granted acontinuance , Burdette could be located and wouldtestify. Banks, supra. In fact. both the prosecutionand the defense had attempted to secure Burdette'sattendance at trial, but neither had been successful.Miller, supra. Moreover, Burdette's statement wasadmitted into evidence by a stipulation of theprosecution and defense counsel. Therefore, thetrial court did not abuse its discretion in denying theappellant's motion for a continuance.

VII.

[33](34] The appellant's seventh argument is thatthe trial judge improperly left the courtroom whilethe jurors viewed his videotaped statement. He alsocontends that, after the jury viewed the videotapeand just before court adjourned for the day, the trialcourt improperly allowed the court reporter toadmonish the jurors to avoid exposure to mediacoverage of the trial, not to discuss the case, and tobe back at 9:30 the next morning. Because theappellant did not present these claims to the trialcourt, we review them for plain error. Rule 45A,Ala. R.App. P.

[35] During the testimony of Officer Signore, afterthe State had played part of the appellant's


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videotaped statement , the trial judge stated:"Ladies and gentlemen , I want to stop for asecond. I have seen that video . I don't need to seeit. It's important for you to see it. It's notimportant for my purposes to see it . I do want acopy of the statement , though . I don't have that.I want to read it again . I have got some otherthings to do. We are going to continue playingthis for y'all.. I have got some other matters totake care of. It's important for y'all to judge Mr.Jackson 's credibility in this video . Y'all makecredibility choices . It's important for y'all toobserve how this investigation was conducted.Another thing you're going to have to do injudging the credibility of whaCs said in it is tojudge whether or not it was coerced in anymanner . So I have already made an initial rulingabout that which allows y'all to see it now. But,for my purposes , it is not for me to sit here anymore . The fact that I am going to be *942 doingsomething else doesn 't mean that it is notimportant to y'all and not very important to thistrial."

(R. 524.) The appellant did not object when thejudge left the courtroom . After the videotape wasplayed, the court reporter stated:

"I have been asked by Judge Gordon to advise thejury not to read the newspapers , not to watchtelevision and not to discuss the case amongyourselves or with anyone else and be back at9:30 a . m. Thursday morning."

(R. 525 .) Again , the appellant did not object whenthe court reporter admonished the jury. At . thatpoint , court was adjourned for the day.

"[T]he rule that it is the duty of the presidingjudge to be visibly present during every momentin the trial of the case, so that he can always seeand hear all that is being said and done, does notmandate a reversal in every instance of hisabsence . Although in Thomas v. State , 150 Ala.31, 43 So. 371 (1907), the defendant made noobjection to the judge 's absence, the followingcomments are instructive in the present situation:" '(W)e are of the opinion that the mere absenceof the judge during the progress of the trial, whenno objection or point was made at the trial, theabsence being only for a few moments ... does notrequire or authorize a reversal of the judgment ofconviction . Especially so when it does notappear that the defendant suffered anv harm ordetriment on account of the judge's temporaryabsence.' Thomas , 150 Ala. at 48 [43 So. 3711(emphasis added).

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"In Melvin v. State, 32 Ala.App. 10, 21 So.2d 277(1944), it was noted:" 'In 23 C.J.S., Criminal Law, Section 972, p.300, after asserting that the general rule requiresthe continued presence of the presiding judgeduring the entire proceedings of the trial, the textobserves further "Nor, in some jurisdictions, ishis absence from the room. reversible error, wherehe remains in a position to observe and hear theproceedings and to pass upon any questionswhich may arise therein, or where he is at alltimes within immediate call." (Emphasis ours.)'Melvin. 32 Ala.App. at 16,21 So.2d 277."Finding that the trial judge had only left thebench and not the courtroom, the appellate courtstressed the importance of the trial judgeremaining visible in the courtroom at all timesduring the proceedings: 'Great care and cautionshould be observed by the trial judge to avoideven the slightest doubt of his accessibility.'Melvin, 32 Ala.App. at 16,21 So.2d 277."In Ex parte Ellis, 42 Ala.App. 236. 159 So.2d862 (1964), the court found that an affidavit insupport of a motion for new trial which assertedthat the trial judge left the bench and thecourtroom for a period of 15 or 20 minutes duringthe course of the trial proceedings did notestablish that the trial was 'lacking in fundamentalfairness.'" 'From aught that appears in such affidavit, thetrial judge did not remove himself to a pointwhere he abandoned supervision of petitioner'sCircuit Court trial or any part thereof. Saidaffidavit failed to state that said trial judge did notremain in proximity sufficiently close to hear, seeand supervise the entire proceedings.

'Everything is to be presumed in favor of theregularity of the proceedings of a court of justice.'Ellis, 42 Ala.App. at 239, 159 So.2d 862."Here, even though defense counsel had no dutyto make objection to any offensive *943 orobjectionable argument of the prosecutor in theabsence of the presiding judge from thecourtroom and could have presented objection inhis motion for new trial, Woods v. State, 19Ala.App. 299, 301, 97 So. 179 (1923), there hasbeen no contention that there was any prejudicialremark made by the prosecutor during the trialjudge's absence."In his brief, the defendant argues that 'it isimpossible to know what prejudice he suffered infact.' However, we cannot find that the defendantwas harmed in any degree by the absence of the


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trial judge where there was no allegation madeduring the course of the proceedings below thathe was prejudiced . From the record it does notappear that 'the error complained of has probablyinjuriously affected substantial rights of theparties .' A.R.A.P. Rule 45. Indeed, as in Er PorteEllis, there has not even been a showing that thetrial judge 'did not remain in proximitysufficiently close to hear, see and supervise theentire proceedings .' Ellis. 42 Ala.App. at 239,159 So.2d 862. For these , reasons, we concludethat under the facts of this particular case the trialjudge 's absence does not require a reversal of thedefendant 's conviction."

Harris v. State , 409 So.2d,. 1006, 1008-09(Ala.Cr.App. 1982) (footnote omitted).

In this case , the trial judge was not absent duringthe arguments of counsel , examination of witnesses,or the handing down of the verdict . Rather, he wasabsent during the playing of a portion of avideotape and when court adjourned for the day.Before , he left, the judge stated that he hadpreviously viewed the videotape , and he thoroughlyinstructed the jurors about the importance of thevideotape and their role in reviewing it. Finally,

court adjourned for the day immediately after thevideotape was played , and the court reporter madethe same comments to the jurors that the judge hadmade when court had previously adjourned for theday. This action certainly did not amount to a"complete abdication of judicial control" over thetrial by the judge , as the appellant contends. Theappellant has not alleged or shown that he wasprejudiced by the judge's absence from thecourtroom . In fact, he has not alleged that any erroroccurred during the judge 's absence . Thus, underthe facts of this case , we do not find that the judge'sactions rose to the level of plain error . At most, hisactions may have constituted harmless error. Rule45, Ala. R.App. P. [FN5]

FN5. In so holding , we do not wish to beconstrued as condoning the judge'sconduct in leaving the courtroom . Rather,we admonish trial judges to remain in thecourtroom throughout the entire course ofa trial.

VIII.

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The appellant's eighth argument is that the Stateimproperly obtained , his conviction byuncorroborated accomplice testimony. Becausethey had all been indicted for the same capitaloffense , the appellant argues that Barnes, Rudolph,and Williams were accomplices to the offense andthat, therefore , their testimony should have beencorroborated.

A.

(36][37][38][39][40][41][42] The appellant firstcontends that the State did not present sufficientevidence to corroborate the testimony of hisaccomplices concerning the robbery element of thecapital offense . At the close of the State'scase- in-chief, the appellant moved for a judgment ofacquittal, specifically arguing that the State had notpresented sufficient evidence to corroborate thetestimony of his accomplices . In denying*944 theappellant's motion , the trial court stated:

"The Court finds that there is sufficient evidenceof corroboration in this case for the matter to goto the jury on not only the defendant 's statement,but the physical evidence with regard to theweapon and also the bullet itself was recovered inconnection with the defendant 's oral statement toDetective Signore that he did have a . 380 caliberweapon in his possession . Although there istestimony in this case of a .380 that was foundafter the car was driven off by the other twocodefendants --or two of the other codefendants."

(R. 29-30.)"A conviction of felony cannot be had on thetestimony of an accomplice unless corroboratedby other evidence tending . to connect thedefendant with the commission of the offense,and such corroborative evidence, if it merelyshows the commission of the offense or thecircumstances thereof, is not sufficient."12-21-222, Ala.Code 1975." ' "Corroboration need only be slight to suffice."Ingle v. State. 400 So.2d 938, 940(Ala.Cr.App. 198 1). "While corroboratingevidence need not be strong, it '... must be ofsubstantive character , must be inconsistent withthe innocence of a defendant and must do morethan raise a suspicion of guilt.' McCoy v. State,397 So.2d 577 (Ala.Crim.App.), cert. denied, 397So.2d 589 (Ala.1981)." Booker v. State, 477So.2d 1388, 1390 (Ala.Cr.App.1985). "However,the corroboration need not be sufficiently strongby itself to warrant a conviction ." Miles v. State,


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476 So.2d 1228, 1234 (Ala.Cr.App.1985). Therequisite corroborative evidence is determined bya process of elimination or subtraction. Caldwell

v. State. 418 So.2d 168, 170 (Ala.Cr.App.1981)."The means for analyzing the evidence todetermine if there is sufficient evidence tocorroborate testimony of an accomplice is to set

aside the accomplice's testimony and determine

whether or not the remaining evidence tends toconnect the defendant with the commission of theoffense." Leonard v. State, 459 So.2d 970, 971(Ala.Cr.App.1984). "Whether such corroborativeevidence exists is a question of law to be resolvedby the trial court, its probative force andsufficiency being questions., for the jury."Caldwell v. State, supra, at 170. Circumstantialevidence is sufficient to show corroboration.Jackson v. State, 451 So.2d 435, 437(Ala.Cr.App. 1984). See also McConnell v. State,

429 So.2d 662 (Ala.Cr.App.1983):"Hodges v. State, 500 So.2d at 1275-76."

Arthur v. State. 711 So.2d 1031, 1059(Ala.Cr.App.1996), cert, denied, 711 So.2d 1097(Ala.1997). "A combination of facts may besufficient to corroborate the testimony of anaccomplice even though each single fact, standing

by itself, is insufficient." Wilson v. State, 690 So.2d449, 456 (Ala.Cr.App.1995), affd in part, 690So.2d 477 (Ala.1997).

" 'Corroborative evidence need not directlyconfirm any particular fact nor go to everymaterial fact stated by the accomplice.' Andrews

v. State, 370 So.2d 320, 322 (Ala.Cr.App.), cert.denied, 370 So.2d 323 (Ala.1979). In this case,as in Perry v. Slate, 853 P.2d 198, 200(Okla.Crim.[App.]1993), the '[a]ppellant himselfcorroborated (the accomplice's] testimony whenhe testified at trial and admitted that he shot thevictim in self-defense.' See also Hood v. State,598 So.2d 1022, 1024 (Ala.Cr.App.1991)(accused's own statement to the policecorroborated accomplices).*945 "In Hood v. State. supra, this Courtobserved:" 'The appellant ... insists that because the "forhire" element of the capital offense was notindependently corroborated, the State did notestablish a prima facie case of capital murder.That is not the law in Alabama." 'As early as 1867, our Supreme Court held thata charge requiring corroboration of "everymaterial part" of an accomplice's testimony "wentbeyond the requirements of the statutory rule, or

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any rule recognized by the common law."Montgomet3v v. State, 40 Ala. 684, 688 (1867).More recently, in Lx parte Bell, 475 So.2d 609,613 (Ala.), cert. denied, 474 U.S. 1038, 106 S.Ct.607, 88 L.Ed.2d 585 (1985), a capital case, thecourt held that Ala.Code 1975, § 12-21-222,"does not require corroborative testimony as tomaterial elements of the crime; it only requiresother evidence 'tending to connect the defendantwith the commission of the offense.' " See alsoAndrews v. State, 370 So.2d 320 (Ala.Cr.App.),cert. denied, 370 So.2d 323 (AIa.1979), whereinthis court observed:" ' "The corroboration of an accomplice must tendto connect the accused with the commission ofthe crime but need not refer to any statement orfact testified to by the accomplice. 'Corroboratemeans to strengthen, to make stronger; tostrengthen , not the proof of any particular fact towhich the witness has testified, but to strengthenthe probative, criminating force of his testimony.'... Corroborative evidence need not directlyconfirm any particular fact nor go to everymaterial fact stated by the accomplice.""Hood v. State, 598 So.2d at 1024-25."

Gurlev v. State, 639 So.2d 557, 561-62(Ala_Cr.App.1993 ).

(43] Thus, even assuming the codefendants wereaccomplices, the State was not required to presentcorroborative evidence as to each element of thecapital offense or as to each fact ,about which. theaccomplices testified, Rather, it was simply requiredto present other evidence that tended to connect theappellant to the commission of the offense. Weconclude that the State presented sufficientevidence to corroborate the testimony of theappellant's accomplices. In addition to theappellant's conduct and statements to lawenforcement officials, the State also introduced thetestimony of two eyewitnesses to the offense; thestatement of Gerard Burdette; physical evidencerecovered from the crime scene and from thevehicles involved in the offense; the spent .380MagTech shell casing recovered from the crimescene; the bullet recovered from the victim's heart;expert testimony that the bullet was consistent withhaving been fired from a .380 pistol; the box of.380 MagTech ammunition recovered from theappellant's bedroom; expert testimony that thebullet was consistent with having been fired fromthe spent shell casing; testimony that LottieFlowers' vehicle had been stolen and was later


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recovered with a broken steering column, a dent onthe side, and a broken window; the Dairy Queencup recovered from Flowers' vehicle; testimonythat the victim's vehicle was recovered fromPorterfield's farm off of Old Hayneville Road;Porterfield's testimony that three young black menwere walking around the victim's vehicle themorning after the murder, and the stereo from thevictim's vehicle, which was recovered fromWilliams' girlfriend's residence. Taken as a whole,this evidence was sufficient to corroborate thetestimony of the appellant's *946 accomplices.Therefore, the appellant 's claim is without merit.

B.

[44][45] The appellant further contends that thetrial court erred because it did not instruct the jurythat accomplice testimony must be corroborated byother evidence. However, he did not request suchan instruction , and he did not object when the trialcourt did not give one. Thus, we review this claimfor plain error. Rule 45A, Ala. R.App. P.

We have previously applied a harnless erroranalysis to such a claim . Arthur, supra.

" 'The court should have instructed the juryconcerning the need for corroborative evidence ofMcCants's testimony. However, the failure to doso does not mean that this cause mustautomatically be reversed. Automatic reversalexists only when the error "necessarily renders atrial fundamentally unfair." Rose v. Clark. 478U.S. 570, [577], 106 S.Ct. 3101, 3106, 92L.Ed.2d 460 (1986). Alabama has applied theharmless error analysis in a case involving thedeath penalty to the failure of the court to instructthe jury on the principle of accomplicecorroboration. Gurley v. State, 639 So.2d 557(Ala.Cr.App.1993); Frazier v. State; 562 So.2d543, 558 (Ala.Cr.App.), rev'd on other grounds,562 So.2d 560 (Ala.1989)."'As Judge Bowen stated in Gurley:" ' "[T]he error of failing to instruct the jury onthe need for corroborative evidence is harmlesswhen the testimony of an accomplice has in factbeen corroborated. Frazier v. State, 562 So.2d543, 558 (Ala.Cr.App.), reversed on othergrounds, 562 So.2d 560 (Ala.1989). AccordPeople v. Brunner, 797 P.2d 788, 790(Colo.App.1990); State v. Brown [187 Conn.602], 447 A.2d 734, 740 (Conn.l982); Ali v.United States, 581 A.2d 368, 377-78

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(D.C.App. 1990), cert. denied , 502 U.S. 893, 112S.Ct. 259 [116 L.Ed.2d•213] (1991); Strong v.State [261 Md. 371], 275 A.2d 491, 495(Md.1971), vacated on other grounds , 408 U.S.939 [92 S.Ct. 2872, 33 L.Ed.2d 760] (1972);State v. England, 409 N.W.2d 262, 265(Minn .App. 1987)." ' "

Arthur. 711 So.2d at 1059 ( quoting Burton v. State,651 So.2d 641, 653- 54 (Ala.Cr.App.1993), affd,651 So.2d 659 (Ala.1994), cert. denied, 514 U.S.1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995)).Similarly , because the State presented sufficientevidence to corroborate the testimony of theappellant's accomplices , we conclude that the factthat the trial court did not instruct the jury on thenecessity of corroborating accomplice testimony didnot rise to the level of plain error and was, at most,harmless error. See Rule 45, Ala. R.App. P.

IX.

[46][47] The appellant's ninth argument is the Stateimproperly used its peremptory challenges todiscriminate on the basis of race and gender. Hecontends that he showed that there was a primafacie case of discrimination in violation of Batson v.Kentucky. 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d69 (1986), and J.E.B. v. Alabama, 511 U.S. 127,114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), during histrial, and that the trial court should have requiredthe prosecution to provide race- and gender-neutralreasons for its strikes. For these reasons, he urgesthis court to remand this case to the trial court "for ahearing to determine whether . the . Statediscriminated on the basis of gender and race in itsuse of peremptory strikes." (Appellant's brief at p.47.)

*947 After the jury was struck but before it wassworn, the following occurred:

"[Defense counsel]: Judge, at this point wewould move under Batson and its progeny for theState to explain race-neutral reasons why it struckNumbers 116, 94, 96, 11, 26, and 165, whichwere the last set of jurors it struck before turningto Your Honor with the random system. Six ofthose seven are black. Eight of their total strikeswere black."The Court: That's not enough to establish aprima facie case.... What's your prima facie case'?"[Defense counsel]: I don't believe they haverace-neutral reasons for doing that Judge. I mean,six out of seven in a row.


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"The Court: That's not enough."(R. 156.) Thus, the appellant preserved forappellate review his claim of discrimination basedon race . However, he did not present his claimregarding discrimination on the basis of gender tothe trial court . Therefore, we review that claimunder the plain error rule. Rule 45A, Ala. R.App. P.

At the outset, we note that the record on appealdoes not include any documents that show the raceor gender of the prospective jurors in this case.Furthermore, it does not include copies of thequestionnaires completed by the jurors before voirdire examination.

"[T]he record does not contain the clerk's officejury list of any relevant information about thejurors. 'It is the appellant's duty to provide thiscourt with a complete record on appeal.' Knight

v. State, 621 So.2d 394 (Ala.Cr.App.1993). Seealso Holder v. State, 584 So.2d 872(Ala.Cr.App.1991). We cannot predicate erroron a silent record. Hutchins v. State. 568 So.2d395 (Ala.Cr.App.1990)."

Roberts v. State, 627 So.2d 1114, 1116(Ala.Cr.App.1993). See also Baker v. State. 683So.2d 1 (Ala.Cr.App.1995). Thus,

"[t]here is no evidence in the record that theprosecutor used his strikes in a raciallydiscriminatory manner. There is no indication ofthe racial composition of the jury, though a jurystrike list is contained in the record. Neither dowe know whether any minorities in fact served onthe jury. The record simply does not support aninference of plain error on the alleged Batsonviolation. Our Supreme Court in Ex parseWatkins, 509 So.2d 1074 (Ala.1987), cert,denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d226 (1987), refused to find plain error in a similarsituation. It stated:" 'The record as a whole simply does not raise aninference that the state engaged in the practice ofpurposeful discrimination. Under the plain errorrule this Court will "notice any plain error ordefect in the proceeding under review, whether ornot brought to the attention of the trial court, andtake appropriate appellate action by reasonthereof, whenever such error has or probably hasadversely affected the substantial rights of thepetitioner." ... The defendant cannot successfullyargue that error is plain in the record when thereis no indication in the record that the act uponwhich error is predicated ever occurred ( i.e., thestate's use of its peremptory challenges to exclude

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blacks).'"509 So .2d at 1076-77. See Kuen;el v. State, 577So.2d 474 (Ala.Cr.App.1990), affd, 577 So.2d531 (Ala. 199 l ), cert . denied, [502] U.S. [886],112 S.Ct. 242, 116 L.Ed.2d 197 ( 1991) (statingthat there was no evidence in the record tosupport the contention that the State of Alabamaused its peremptory strikes to exclude blacksfrom the jury). 'Under the circumstances of thiscase , we cannot conclude *948 that a prima faciecase of purposeful discrimination has beenestablished .' Pierce, 576 Sold at 242."

Jenkins v. State. 627 So.2d 1034, 1042(Ala.Cr.App.1992), affd, 627 So.2d 1054(Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct.1388, 128 L.Ed.2d 63 (1994). See also Freeman v.State, 555 So.2d 196 (Ala.Cr.App.1988), affd, 555So.2d 215 (Ala.1989 ), cert. denied, 496 U.S. 912,110 S.Ct. 2604, 110 L.Ed.2d 284 (1990).

Likewise, the record before us does not raise aninference of discrimination based on either race orgender. Nevertheless, the appellant urges us toremand this case so the prosecution can providereasons for its use of its peremptory challenges.

"As this Court stated in FEY- parse Watkins, 509So.2d 1074, 1077 (Ala.1987), cert. denied,Watkins v. Alabama, 484 U.S. 918, 108 S.Ct.269, 98 L.Ed.2d 226 (1987), '[t]he defendantcannot successfully argue that error is plain in therecord when there is no indication in the recordthat the act upon which error is predicated everoccurred.' In effect, McNair is requesting that weremand this case for a hearing on this issue, onthe strength of the circuit clerk's affidavit, so thata record can be created for appellate review. Wespecifically decline this request, for to dootherwise would unduly enlarge the scope of theplain error review as authorized by our appellaterules. See Watkins, supra, in which we had theopportunity in adeath penalty case to remand foran evidentiary hearing on a Batson issue, butrefused to do so."

Ex parte McNair. 653 So.2d 353, 360-(Ala.1994),cert. denied, '513 U.S. 1159, 115 S.Ct. 1121, 130L.Ed.2d 1084 (1995). We, too, decline theappellant's request. Because the record before thiscourt does not raise any inference of discrimination,we do not find any reversible error in this regard.

X.

[48][49) The appellant's tenth argument is that the

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trial court's instruction on reasonable doubt violatedthe principles of Cage v. Louisiana, 498 U.S. 39,111 S.Ct. 328, 112 L.Ed.2d 339 (1990). The trialcourt instructed the jury on reasonable doubt asfollows:

"I have told you that the State has to prove thiscase beyond a reasonable doubt from theevidence. So let's talk for a moment about what areasonable doubt is. Simply put, ladies andgentlemen, a reasonable doubt is a doubt forwhich you can give a reason. It may arise fromall the evidence. It may arise from any part of theevidence. It may arise from lack of evidence inany case after a careful and impartialconsideration of all of the case.,That is what youhave got to look at is look at the evidence--all theevidence that is presented to you in this case todetermine whether or not the State has proven thedefendant guilty beyond a reasonable doubt. Youdon't find a person guilty of a criminal chargebased on conjecture or suspicion or surmise. Onthe other hand though, you don't find a person notguilty because of some vague or conjectural orfanciful doubt. Now the State's burden is toprove the defendant guilty beyond a reasonabledoubt. But the State does not have to prove himguilty beyond all doubt or beyond a shadow of adoubt or to a mathematical certainty. But theState has to satisfy its burden by proving his guiltbeyond a reasonable doubt from the evidence inthis case."I would simply say to you that proof beyond areasonable doubt is proof of such a convincingcharacter that you will be willing to rely and actupon it without hesitation in the most importantof your *949 own affairs. So if you areconvinced by the evidence that the defendant hasbeen -proven guilty of an offense beyond areasonable doubt, then you must find him guilty.On the other hand, if you are not convinced bythe evidence that he has been proven guiltybeyond a reasonable doubt, then you must findhim not guilty as you look at the charges in thiscase.

(R. 83-85). The appellant specifically contendsthat the instruction improperly lowered the State'sburden of proof. He did not present this issue to thetrial court. Therefore, we review it for plain error.Rule 45A, Ala. R.App. P.

In Knotts v. State. 686 So.2d 431 (Ala.Cr.App.),opinion after remand , 686 So.2d 484(Ala.Cr.App.1995), aft'd, 686 So-2d 486 (Ala.1996)

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, cert. denied, 520 U.S. 1199, 117 S.Ct. 1559, 137L.Ed.2d 706 (1997), we held:

"The Due Process Clause of the FourteenthAmendment 'protects the accused againstconviction except upon proof beyond areasonable doubt of every fact necessary toconstitute the crime with which he is charged.' Inre Winship, 397 U.S. 358, 364, 90 S.Ct. 1068,1073, 25 L. Ed.2d 368 (1970). In Cage v.Louisiana , the United States Supreme Courtfound that a jury charge that defined 'reasonabledoubt' by using the phrases 'grave uncertainty,''actual substantial doubt,' and 'moral certainty'could have led a reasonable juror to interpret theinstructions to allow a finding of guilt based on adegree of proof below that required by the DueProcess Clause . Subsequently , the Court 'made itclear that the proper inquiry is not whether theinstruction "could have" been applied in anunconstitutional manner , but whether there is areasonable likelihood that the jury did so apply it.'Victor v. Nebraska. 511 U.S. 1, 6, 114 S.Ct.1239, 1243, 127 L.Ed.2d 583 (1994) (quotingEstelle v. McGuire, 502 U.S. 62, 72-73, and n. 4,112 S.Ct. 475, 482 and n. 4, 116 L.Ed.2d 385(1991), emphasis in original). Thus, theconstitutional question presented here is whetherthere is a reasonable likelihood that the juryunderstood the instructions to allow theconviction based on proof insufficient to meet theWinship reasonable doubt standard . Victor v.Nebraska; Ex parte Kirby, 643 So.2d 587 (Ala.),cert. denied, [513] U.S. [1023], 115 S.Ct. 591,130 L.Ed.2d 504 (1994); Cox v. State. 660 So.2d233 (Ala.Cr.App.1994)."In reviewing the reasonable doubt instruction,we do so in the context of the charge as a whole.Victor v. Nebraska: Baker v. United States, 412F.2d 1069 (5th Cir. 1969), cert. denied, 396 U.S.1018, 90 S .Ct. 583, 24 L.Ed.2d 509 (1970);Williams V. State, 538 So.2d 1250(AIa.Cr.App.1988). So long as the definition of'reasonable doubt' in the charge correctly conveysthe concept of reasonable doubt, the charge willnot be considered so prejudicial as to mandatereversal . Victor v. Nebraska; Holland v. UnitedStates, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150(1954).11

686 So.2d at 459. " 'Use of some but not all of theterminology found offensive in Cage does notautomatically constitute reversible error .' " Taylor v.State, 666 So.2d 36, 56 (Ala.Cr.App.1994), afffd,666 So .2d 73 (Ala.1995), cert. denied, 516 U.S.


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1120, 116 S .Ct. 928 , 133 L.Ed .2d 856 (1996)(citations omitted). Finally , we have previouslyheld that the statement that a reasonable doubt is adoubt for which a reason can be given does notviolate Cage and does not improperly lessen theState 's burden of proof. Burgess v. State, 827 So.2d134 (Ala.Cr.App.1998); Ex parte McWilliams. 640So.2d 1015 (Ala.1993), affd, 666 So.2d 90(Ala.1995 ), cert. denied , *950516 U . S. 1053, 116S.Ct. 723. 133 L.Ed.2d 675 (1996); McMillian v.State, 594 So .2d 1253, 1283 (Ala.Cr.App.1991).

Taken as a whole , the trial court's instruction in thiscase properly conveyed the concept of reasonabledoubt to the jury, and it did not lessen the State'sburden of proof. There is no reasonable likelihoodthat the jury applied the instruction in a manner thatwould violate the appellant's constitutional rights.Therefore , we do not find any plain error in thisregard.

Xl.

[50][51][52] The appellant's eleventh argument isthat the trial court improperly admitted photographsand videotapes that allegedly served only to inflameand prejudice the jury. Specifically, he contendsthat the introduction of one picture of the victimafter he was killed seriously prejudiced him. Withregard to the remaining photographs andvideotapes, he makes only generalizations withoutspecifying which ones he finds objectionable.Because the appellant did not object to theadmission of the photographs and the videotapes attrial, we must determine whether the admission ofthese items constituted plain error . Rule 45A, Ala.R.App. P.

[53][54][55][56][57][58] When reviewing thesephotographs and videotapes, we are guided by thefollowing principles:

" 'Photographic evidence is admissible in acriminal prosecution if it tends to prove ordisprove some disputed or material issue, toillustrate some relevant fact or evidence, or tocorroborate or dispute other evidence in the case.Photographs that tend to shed light on, tostrengthen, or to illustrate other testimonypresented may be admitted into evidence....Finally photographic evidence, if relevant, isadmissible even if it has a tendency to inflame theminds of the jurors.' "

Gaddy v. State, 698 So .2d 1100, 1148

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(Ala.Cr.App.1995), affd. 698 So.2d 1150 (Ala.),cert. denied, 522 U.S. 1032, 118 S.Ct. 634, 139L.Ed.2d 613 (1997) (quoting Ex parte Siebert. 555So.2d 780, 783-84 (Ala.1989), cert. denied, 497U.S. 1032, 110 S.Ct. 3297. 111 L.Ed.2d 806 (1990))•

" '[P]hotographs depicting the character andlocation of wounds on a deceased 's body areadmissible even though they are cumulative andare based on undisputed matters. Magwood [v.State], 494 So.2d [124, 141 (Ala.Cr.App. 1985),affirmed , 494 So.2d 154 (Ala.), cert. denied, 479U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986)]. The fact that a photograph is gruesome is notgrounds to exclude it as long as the photographsheds light on issues being tried. Id. Also, aphotograph may be gruesome and ghastly, butthis is not a reason to exclude it as long as thephotograph is relevant to the proceedings , even ifit tends to inflame the jury. ld.'"Ex parse Bankhead 585 So.2d 112 (Ala.1991).Accord, Ex parse Siebert. 555 S6.2d 780, 783-84(Ala.1989), cert. denied, [497] U.S. [1032], I10S.Ct. 3297, 111 L.Ed.2d 806 (1990); McElroy'sat § 207.01(2)."

Parker v. State, 587 So.2d 1072, 1092-93(Ala.Cr.App.1991 ), opinion extended after remand,610 So.2d 1171 (Ala.Cr.App.), atYd, 610 So.2d1181 (Ala.1992), cert. denied, 509 U.S. 929, 113S.Ct. 3053, 125 L.Ed.2d 737 (1993). Photographsthat depict the crime scene are relevant andtherefore admissible . Aaltrnan v. State, 621 So.2d353 (Ala.Cr.App. 1992), cert . denied, 510 U.S. 954,114 S.Ct. 407, 126 L.Ed.2d 354 (1993); Ex parteSiebert, 555 So.2d 780, 783-84 (Ala.1989), cert.denied, 497 U.S. 1032, 110 S.Ct. 3297, 111L.Ed.2d 806 (1990): Hill v. State, 516 So.2d 876(Ala.Cr.App.1987)_ Finally,

*951 " ' "photographic evidence , if relevant, isadmissible even if it has a tendency to inflame theminds of the jurors ." Ex parte Siebert, 555 So.2d780, 784 (Ala.1989), cert, denied, 497 U.S. 1032,1 1 0 S.Ct. 3297, 1 1 1 L.Ed.2d 806 ( 1990). Seegenerally C . Gamble, McElroy's AlabamaEvidence, § 207.01(2) (4th ed.1991). "Thephotographs of the victim were properly admittedinto evidence . Photographic exhibits areadmissible even though they may be cumulative,... demonstrative of undisputed facts, ... orgruesome ...." Williams v. State, 506 So.2d 368,371 (Ala.Cr.App.1986), cert. denied, 506 So.2d372 (Ala. 1987).'"DeBruce v. State, 651 So.2d 599, 607


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(Ala.Cr.App.1993). See also Er parte Bank-head,585 So.2d 112 (Ala.1991). The court did not errin allowing photographs of the victim's body tobe received into evidence."

Hutcherson v. State. 677 So.2d 1174, 1200(Ala.Cr.App.1994), rev'd on other grounds, 677So.2d 1205 (Ala.1996). See also Giles v. State. 632So.2d 568 (Ala.Cr.App.1992), affd, 632 So.2d 577(Ala.1993), cert. denied, 512 U.S. 1213, 114 S.CL2694, 129 L.Ed.2d 825 (1994); Hanev v. State, 603So.2d 368 (Ala.Cr.App.1991), at?d, 603 So.2d 412(Ala.1992), cert, denied, 507 U.S. 925, 113 S.Ct.1297, 122 L.Ed.2d 687 (1993).

In this case, the photographs of the victim depictthe character and location of his wounds.Nevertheless, these photographs are neitherunnecessarily gruesome not gory. We have alsoreviewed the remaining photographs andvideotapes, and we do not find that they wereunduly prejudicial to the appellant. Thosephotographs and videotapes were relevant andadmissible because they depict the crime scene, thevehicles driven by the victim and the appellant, andthe evidence recovered during the investigation ofthe crime. The appellant has not shown that theadmission of any of the photographs or videotapesaffected or probably affected his substantial rights.Accordingly, the trial court's admission of thephotographs and videotapes did not constitute plainerror.

X"II.

[59][60] The appellant's twelfth argument is thatthe trial court improperly granted the State'schallenges for cause as to prospective jurors whoexpressed objections to the imposition of the deathpenalty. After the voir dire examination, thefollowing occurred:

"The Court: Exceptions for cause?"[Prosecutor]: Yes, sir. State would challengejuror [L.A.], Juror [A.A.], Juror [V.C.], Juror[M.E.], Juror [V.G.]""The Court: Anything in response to that?Before y'all respond, let me tell you what myinclination is. My inclination is to grant thosechallenges except for [A.A.] Each of those jurorsin my judgment said on the record that there areno circumstances under which they could vote toimpose the death penalty, except for [A.A.] Well,I take it back. I'm sorry. [A.A.] said she didn'tknow if she could vote or not.

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"[Prosecutor]: That's why I challenged her."The Court: I confused '[A.A.] for [B.B.] I thinktheir challenges are due to be granted. That's myinitial reaction. If y'all have anything you wouldlike to say about it, I will hear you. Anythingy'all have in opposition to any of those?"[Defense counsel]: We don't have any."

(R. 126-27.) Because the appellant did not presenthis claim about the challenges for *952 cause to thetrial court, we review it for plain error. Rule 45A,Ala. R.App. P.

During general voir dire examination, prospectivejurors L.A., A.A., V.C., M.E., and V.G. indicatedthat they had reservations about imposing the deathpenalty. Further individual examination by the trialcourt revealed that the prospective jurors eithercould not vote on the imposition of punishment orwould not vote to impose the death penalty underany circumstances. Prospective juror L.A. indicatedthat he did not personally condone the death penaltyand that he could not impose the death penaltyunder any circumstances. (R. 82.) Prospectivejuror A.A. expressed ambivalent feelings about thedeath penalty. (R. 83.) Upon further questioningby the trial court, she indicated that she did notknow whether she could follow the law inrecommending a sentence of death or even vote insuch a case. (R. 84, 86, 89- 90.) Prospective jurorV.C. indicated that she could not impose the deathpenalty under any circumstances. (R. 105, 107.)Prospective jurors M.E. and V.G. indicated that,based on their religious beliefs, they could not voteto impose the death penalty under any set of facts orcircumstances. (R. 119- 22.) Contrary to theappellant's contention in his brief to this court, notone of these prospective jurors indicated that he orshe could follow the law despite his or her opinionsabout the death penalty.

[61][62][63][64][65] Initially, we note that theState may successfully challenge for cause anyprospective juror who would refuse to impose thedeath penalty under any circumstances.

"On the trial for any offense which may bepunished capitally ..., it is a good cause ofchallenge by the state that the person wouldrefuse to impose the death penalty regardless ofthe evidence produced...."

§ 12-16-152, Ala.Code 1975."In Tavlor v. State, 666 So.2d 36, 47(Ala.Cr.App. 1994), this Court outlined theguidelines for determining whether a potential


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juror should be excluded for cause based on hisor her feelings concerning capital punishment:" ' "The proper standard for determining whethera prospective juror may be excluded for cause

because of his or her views on capital punishmentis 'whether the juror's views would "prevent orsubstantially impair the performance of his dutiesas a juror in accordance with his instructions andhis oath." ' Wainwright v. Witt, 469 U.S. 412.424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985);Gray v. Mississippi. 481 U.S. 648 [at 657-581,107 S.Ct. 2045, 2051, 95 L.Ed.2d 622 (1987).'The crucial inquiry is whether the veniremancould follow the court's instructions and obey hisoath, notwithstanding his views on capitalpunishment.' Dutton v. Brown. 812 F.2d 593,595 (10th Cir.), cert. denied, Dutton v. Maynard

484 U.S. 836, 108 S.Ct. 116, 98 L.Ed.2d 74(1987). A juror's bias need not be proved with'unmistakable clarity' because 'juror bias cannotbe reduced to question and answer sessions whichobtain results in the manner of a catechism.' Id." ' "A trial judge's finding on whether or not aparticular juror is biased 'is based upondetermination of demeanor and credibility thatare peculiarly within a trial judge's province.'Witt. 469 U.S. at 428, 105 S.Ct. at 854 [, 83L.Ed.2d 841]. That finding must be accordedproper deference on appeal. Id. 'A trial court'srulings on challenges for cause based on bias *953

[are] entitled to great weight and will not bedisturbed on appeal unless clearly shown to be anabuse of discretion.' Nobis v. State, 401 So.2d191, 198 (Ala.Cr.App.), cert. denied, Ex parte

Nobis, 401 So.2d 204 (Ala.1981)."'Martin v. State. 548 So.2d 488, 490-91

(Ala.Cr.App.1988), affirmed, 548 So.2d 496(Ala.1989), cert. denied, 493 U.S. 970, 110 S.Ct.419, 107 L.Ed.2d 383 (1989). "[A] blanket,declaration of support of or opposition to thedeath penalty is not necessary for a trial judge todisqualify a juror." Ex parse Whisenhant, 555So.2d 235, 241 (Ala.1989), cert. denied, 496 U.S.943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990).'"Based on the record before us, including thejuror's unequivocal response that she would notbe able to impose the death penalty in any case,we conclude that the trial court did not err ingranting the State's challenge for cause."

Dallas v. State, 711 So.2d 1101, 1107(Ala.Cr.App.1997), affd, 711 So.2d 1114 (Ala.),cert. denied, 525 U.S. 860, 119 S.Ct. 145, 142L.Ed.2d 118 (1998).

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In this case, the prospective jurors indicated eitherthat they could not vote' on the imposition ofpunishment or that they would not vote to imposethe death penalty regardless of the evidenceproduced. Therefore, the trial court's granting ofthe State's challenges for cause did not constitute anabuse of the court's discretion and did not rise to thelevel of plain error.

[66][67] The appellant also contends that theexclusion of these prospective jurors violated hisright to be tried by a jury comprised of a faircross -section of the community. Again, he did notpresent this claim to the trial court. Therefore, wereview it under the plain error rule. Rule 45A, Ala.R.App. P.

"In Johnson v. State, 502 So.2d 877(Ala.Cr.App.1987), this court faced a similar factsituation . The appellant in Johnson argued thatexcluding veniremembers who expressedopposition to the death penalty denied him theright to a jury comprised of a fair cross-section ofthe community. The Johnson court relied onLockhart v. McGee, 476 U.S. 162, 106 S.Ct.1758, 90 L.Ed.2d 137 (1986), in which theUnited States Supreme Court stated:" ' "The essence of a 'fair cross-section' claim isthe systematic exclusion of 'a "distinctive" groupin the community.' Duren [v. Missouri, 439 U.S.357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579(4979) ]. In our view, groups defined solely interns of shared attitudes that would prevent orsubstantially impair members of the group fromperforming one of their duties as jurors, such asthe 'Witherspoon-excludables' at issue here, arenot 'distinctive groups' for fair cross-sectionpurposes."" 'Lockhart v. McCree, 476 U.S. at 174, 106 S.Ct.at 1765[, 90 L.Ed.2d 137].'"Johnson, 502 So.2d at 879."

Clemons v. State, 720 So.2d 961, 973-74(Ala.Cr.App. 1996), affd, 720 So.2d 985 (Ala.1998), cert. denied, 525 U.S. 1124, 119 S.Ct. 907, 142L.Ed.2d 906 (1999). Thus, the appellant's faircross-section argument is without merit.

XIII.

[68][69][70][71][72][73] The appellant's thirteenthargument is that the trial court improperly admittedinto evidence a bullet for which the State hadallegedly not established a proper chain of custody.Dr. James Lauridson, who performed the autopsy


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on the victim's body , recovered a bullet from the*954 victim 's heart and testified that that woundcaused the victim 's death. He testified that heplaced the bullet in a manila envelope , sealed andinitialed the envelope , and gave the envelope to JoeSaloom . Joe Saloom , the State 's firearms andtoolmarks expert , testified that James Sparrow, aforensic investigator who works for Dr . Lauridson,delivered the bullet to him in a sealed manilaenvelope. James Sparrow did not testify at trial,and the appellant objected to the admission of thebullet, arguing that the State had not established achain of custody for it . The trial court overruled theappellant's objection , stating, "I'm going to admit it.It's a weak link, if anything." (R. 500.)

"We have held that the State must establish achain of custody without breaks in order to lay asufficient predicate for admission of evidence.Ex parse Williams . 548 So.2d 518 , 520 (Ala.1989). Proof of this unbroken chain of custody isrequired in order to establish sufficientidentification of the item and continuity ofpossession , so as to assure the authenticity of theitem. kL In order to establish a proper chain, theState must show to a 'reasonable probability thatthe object is in the same condition as, and notsubstantially different from , its condition at thecommencement of the chain . McCruv v. State,548 So.2d 573, 576 (Ala.Crim.App . 1988)."

Ex parse Holton, 590 So .2d 918, 919-20(Ala. 1991).

" ' "The purpose for requiring that the chain ofcustody be shown is to establish to a reasonableprobability that there has been no tampering withthe evidence." Er parse Jones, 592 So .2d 210,212 (Ala.1991); Harrell v. State, 608 So.2d 434,437 (Ala.Crim.App. 1992); Smith v. State, 583So.2d 990 (Ala.Crim.App.1991 ), cert. denied,583 So .2d 993 (Ala.1991).... Evidence has beenheld correctly admitted even when the chain ofcustody has a weak or missing link. Gordon v.State, 587 So .2d 427, 433 (Ala.Crim.App.1990),rev'd 587 So .2d 434 (Ala.), on remand, 587 So.2d435 (Ala .Crim.App.), appeal after remand, 591So-2d at 149 (Ala.Crim.App.1991 ); Shute v.State, 469 So .2d 670, 674 (Ala.Crirn .App.1984).'

Davis v. State , 718 So .2d 1148, 1161(Ala.Cr.App.1995), affd, 718 So.2d 1166(Ala.1998), cert. denied , 525 U.S. 1179, 119 S.Ct.1117, 143 L.Ed.2d 112 ( 1999) (quoting Slaton v.State, 680 So .2d 879, 893 (Ala.Cr.App. 1995), affd,680 So .2d 909 (Ala.1996), cert. denied, 519 U.S.

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1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997))."While each link in the chain of custody must beidentified , it is not necessary that each link testify inorder to prove a complete chain of custody.Harrison V. State , 650 So.2d 603(Ala.Crim.App.1994)." Ex parse v. Slaton, 680So.2d 909 , 918 (Ala . 1996), cert . denied, 519 U.S.1079, 117 S.Ct. 742, 136. L.Ed.2d 680 (1997).Finally, "evidence that an item has been sealed isadequate circumstantial evidence to establish thehandling and safeguarding of the item ." Lane v.State, 644 So.2d 1318, 1321 (Ala.Cr.App.1994).

Although James Sparrow did not testify , the Statepresented sufficient evidence to show that the bulletwas in the same condition when it was delivered toSaloom as it was when Dr. Lauridson removed itfrom the victim 's body . The absence of Sparrow'stestimony constitutes , at most , a weak link in thechain of custody , which would go to the weight andcredibility of the evidence rather than itsadmissibility . Smith v. State, 677 So.2d 1240(Ala.Cr .App.1995 ); Knight v. State, 622 So.2d 426,430 (Ala .Cr.App . 1992).

[74] Moreover, even if there had been a break inthe chain of custody for the bullet , Dr. Lauridsonidentified the bullet *955 that was introduced intoevidence as the one he removed from the victim'sbody during the autopsy.

"Physical evidence connected with or collected inthe investigation of a crime shall not be excludedfrom consideration by a jury or court due to afailure to prove the chain of custody of theevidence . Whenever a witness in a criminal trialidentifies a physical ..piece of evidence connectedwith or collected in the investigation of a crime,the evidence shall be submitted to the jury orcourt for whatever weight the jury or court maydeem proper. The trial court in its charge to thejury shall explain any break in the chain ofcustody concerning the physical evidence."

12-21-13, Ala.Code 1975 . Therefore , the trialcourt properly admitted the bullet into evidence.

XIV.

[75] The appellant 's fourteenth argument is thatthere was not sufficient evidence to support hisconviction . Specifically , he contends that theevidence does not establish that the murderoccurred during a robbery or that he was involvedin a robbery.


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[76][77][78][79][80][81 ][82][83][8`)][85][86]Section 13A-5-40(a)(2), Ala.Code 1975, providesthat a murder committed "by [a] defendant during arobbery in the first degree or an attempt thereof

committed by the defendant" constitutes capital

murder."(a) A person commits the crime of robbery in thefirst degree if he violates Section 13A-8-43 and

he:"(1) Is armed with a deadly weapon or dangerous

instrument; or"(2) Causes serious physical injury to another."(b) Possession then and there of an article usedor fashioned in a manner to lead any person whois present reasonably to believe it to be a deadlyweapon or dangerous instrument, or any verbal orother representation by the defendant that he isthen and there so armed, is prima facie evidenceunder subsection (a) of this section that he was soarmed."

§ 13A-8-41, Ala.Code 1975. Section 13A-8-43,Ala.Code 1975, provides:

"(a) A person conunits the crime of robbery in thethird degree if in the course of committing a thefthe:"(1) Uses force against the person of the owner orany person present with intent to overcome hisphysical resistance or physical power ofresistance; or"(2) Threatens the imminent use of force againstthe person of the owner or any person presentwith intent to compel acquiescence to the takingof or escaping with the property."

Alabama's accomplice liability statute provides:"A person is legally accountable for the behaviorof another constituting a criminal offense if, withthe intent to promote or assist the commission ofthe offense:"(1) He procures, induces or causes such otherperson to commit the offense; or"(2) He aids or abets such other person incommitting the offense; or"(3) Having a legal duty to prevent thecommission of the offense, he fails to make aneffort he is legally required to make."

§ 13A-2-23, Ala.Code 1975."To sustain a conviction under § 13A-5-40(a)(2)for capital robbery- murder, the state must provebeyond a reasonable doubt: (1) a 'robbery in thefirst degree or an attempt thereof,' as defined by §13A-8-41; (2) a 'murder,' as defined *956 by §13A-6-2(a)(1); and (3) that the murder wascommitted 'during' the robbery or attempted

Page 34

robbery, i.e., that the murder was committed 'inthe course of or in, connection with thecommission of, or in immediate flight from thecommission of the robbery or attempted robberyin the first degree, § 13A-5-39(2). Connolly v.

State, 500 So.2d 57 (Ala.Cr.App.1985), affd, 500So.2d 68 (Ala.1986). The capital crime ofrobbery when the victim is intentionally killed isa single offense beginning with the act of robbingor attempting to rob and culminating in the act ofintentionally killing the victim; the offenseconsists of two elements, robbing and intentionalkilling. Davis v. State, 536 So.2d 110(Ala.Cr.App.1987); Magwood v. State, 494So.2d 124 (Ala.Cr.App.1985), affd, Es parteMagwood. 494 So.2d 154 (Ala.), cert. denied,479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599(1986). The intentional murder must occurduring the course of the robbery in question;however, the taking of the property of the victimneed not occur prior to the killing. Clark v. State,451 So.2d 368 (Ala.Cr.App.), cert. denied, 451So.2d 368 (Ala.1984). While the violence orintimidation must precede or be concomitant withthe taking, it is immaterial that the victim is deadwhen the theft occurs. Thomas v. State, 460So.2d 207 (Ala.Cr.App.1983), affd, 460 So.2d216 (Ala. 1984)." 'As the Alabama Supreme Court held in Cobernv. State. 273 Ala. 547, 142 So.2d 869 (1962),"the fact that the victim was dead at the time theproperty was taken would not militate [against afinding] of robbery if the intervening timebetween the murder and the taking formed acontinuous chain of events." Clements v. State,370 So.2d 708, 713 (Ala.Cr.App.1978), affirmedin pertinent part, 370 So.2d 723 (Ala.1979);Clark v. State, 451 So.2d 368, 372(Ala.Cr.App.1984). To sustain any other position"would be tantamount to granting to would-berobbers a license to kill their victims prior torobbing them in the hope of avoiding prosecutionunder the capital felony statute." Thomas v. State,460 So.2d 207, 212 (Ala.Cr.App.1983), affirmed,460 So.2d 216 (Ala. 1984)." 'Although a robbery committed as a "mereafterthought" and unrelated to the murder will notsustain a conviction under § 13A-5-40(a)(2) forthe capital offense of murder-robbery, seeBt (ford v. State, supra. O'Ptvv v. State, supra [642S.W.2d 748 (Tex.Cr.App.1981) ], the question ofa defendant's intent at the time of the commissionof the crime is usually an issue for the jury to


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resolve. Crowe v. State, 435 So.2d 1371, 1379

(Ala.Cr.App. 1983). The jury may infer from thefacts and circumstances that the robbery beganwhen the accused attacked the victim and thecapital offense was consummated when thedefendant took the victim's property and fled.Cobern v. State, 273 Ala. 547, 550, 142 So.2d869, 871 (1962). The defendant's intent to- robthe victim can be inferred where "[t]heintervening time, if any, between the killing androbbery was part of a continuous chain ofevents ." Thomas v. State, 460 So.2d 207, 212(Ala.Cr.App. 1983), affirmed, 460 So.2d 216(Ala.1984). See also Cobern v. State, 273 Ala.547, 142 So.2d 869 (1962); Crowe v. State, 435So.2d 1371 (Ala.Cr.App.1983); Bufford v. State,382 So.2d 1162 (Ala.Cr.App.), cert, denied, 382So.2d 1175 (Ala.1980); Clements v. State, 370

So.2d 708 (Ala.Cr.App.1978), affirmed inpertinent part, 370 So.2d 723 (Ala.1979).'"Connolly, 500 So.2d at 63."

*957 Hallford v. State, 548 So.2d 526, 534-35(Ala.Cr.App.1988), affd, 548 So.2d 547 (Ala.),cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107L.Ed.2d 342 ( 1989).

"It is sometimes said that a robbery committed asa 'mere afterthought' and unrelated to the murderwill not sustain a conviction for the capitaloffense of murder-robbery. Connolly v. State,500 So.2d 57 (Ala.Cr.App.1985), affd, 500So.2d 68 (Ala.1986). However, the appellant'sintent to rob the victim may lawfully andcorrectly be inferred where the killing and therobbery were part of a continuous chain of events.

Hallford v. State, 548 So.2d 526(AIa.Cr.App.1988), affd, 548 So.2d 547 (Ala.),cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107L.Ed.2d 342 (1989)."

Harris v. State, 671 So.2d 125, 126(Ala_Cr.App.1995). Finally,

" '[i]n determining the sufficiency of the evidenceto sustain the conviction, this Court must acceptas true the evidence introduced by the State,accord the State all legitimate inferences-therefrom , and consider the evidence in the lightmost favorable to the prosecution .' Faircloth v.State, 471 So.2d 485, 489 (Ala.Cr.App.1984),affirmed, Ex parte Faircloth, [471] So.2d 493(Ala. 1985),

" ' "The role of appellate courts is not to say whatthe facts are . Our role, ... is to judge whether theevidence is legally sufficient to allow submission

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of an issue for decision to the jury." Ex parseBankston . 358 So-2d 1040 , 1042 (Ala.1978). Anappellate court may interfere with the jury'sverdict only where it reaches "a clear conclusionthat the finding and judgment are wrong ." Kelly

v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962). "The rule is clearly established in this State thata verdict of conviction should not be set aside onthe ground of the insufficiency of the evidence tosustain the verdict , unless , after allowing allreasonable presumptions of its correctness, thepreponderance of the evidence against the verdictis so decided as to clearly convince the court thatit was wrong and unjust ." Bridges v . State. 284Ala. 412, 420, 225 So. 2d 821 (1969).... A verdicton conflicting evidence is conclusive on appeal.Rober on v. State, 162 Ala. 30, 50 So . 345 (1909). "[W]here there is ample evidence offered by thestate to support a verdict, it should not beoverturned even though the evidence offered bythe defendant is in sharp conflict therewith andpresents a substantial defense ." Fuller v. State.269 Ala. 312, 333, 113 So.2d 153 ( 1959), cert.denied , Fuller v. Alabama . 361 U.S. 936, 80S.Ct. 380, 4 L.Ed. 2d 358 (1960).' Granger, 473So.2d at 1139."" '... Circumstantial evidence alone is enough tosupport a guilty verdict of the most heinouscrime , provided the jury believes beyond areasonable doubt that the accused is guilty.'White v. State, 294 Ala. 265, 272, 314 So.2d 857,cert. denied , 423 U.S. 951, 96 : S.Ct. 373, 46L.Ed.2d 288 (1975). 'Circumstantial evidence isin nowise considered inferior evidence and isentitled to the same weight as direct evidenceprovided it points to the guilt of the accused.'Cochran v. State, 500 So.2d 1161, 1177(Ala,Cr.App.1984 ), affirmed in pertinent part,reversed in part on other grounds, Ex parteCochran, 500 So.2d 1179 (Ala.1985)."

White v. State, 546 So.2d 1014, 1017(Ala.Cr.App. 1989).

After instructing the jury on the elements ofrobbery-murder , the trial court defined the word"during" as follows:

"The phrase 'during ,' ladies and gentlemen, meansin the course of, the commission *958 of, or inconnection with or in immediate flight from thecommission of a robbery."

(R. 92.) Thereafter , the trial court also instructedthe jury on the principles of accomplice liability, orcomplicity , stating as follows:


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"I want to talk to you about what we callcomplicity. And the law is this. A person islegally accountable for the behavior of anotherperson which constitutes a criminal offense if,with the intent to 'promote or assist in thecommission of that offense, he aids or abets thatother person in committing the offense. Thewords 'aid or abet' ... comprehend all assistancerendered by acts, words, encouragement, support,or presence, actual or constructive, to renderassistance should it become necessary."The State has the burden of proving beyond areasonable doubt from the evidence that therewas, by pre-arrangement or on the spur of themoment, a common enterprise, or adventure andthat a criminal offense was contemplated beforeyou would be justified in finding that thedefendant, Mr. Jackson, aided or abetted."A person cannot be an alder or abettor unless hispurpose is to aid the commission of the offensecharged in the indictment. Mere presence aloneis not sufficient in order to make one an aider orabettor."When two or more persons enter upon anunlawful purpose with a common intent to aidand encourage each other with anything withintheir common design, they are each criminallyresponsible for everything which mayconsequently and subsequently result from thatunlawful purpose, whether specificallycontemplated or not."

(R. 97-99.) Applying those instructions to theevidence presented at trial, as set forth in thisopinion and in the trial court's sentencing order,there was sufficient evidence to show that themurder occurred during a robbery. Therefore, theevidence was sufficient to support the appellant'scapital murder conviction.

Xv.

[87] The appellant's fifteenth argument is that thetrial court improperly treated robbery as both anelement of the capital offense and as an aggravatingcircumstance . This practice is commonly referredto as "double counting" or "overlapping." Theappellant specifically contends that "the use ofrobbery both as an elevator in the guilt-phase and asan aggravator in the penalty- phase failed to narrowthe class of cases eligible for the death penalty,resulting in the arbitrary imposition of the deathpenalty." (Appellant's brief at p. 58.) fie alsocontends that this "double counting" punished him

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twice for the same act, thus violating the Fourth,Fifth, Sixth, Eighth, and Fofirteenth Amendments tothe United States Constitution, the AlabamaConstitution, and Alabama law.

The appellant makes only bare allegations that hisFourth, Sixth, Eighth, and Fourteenth Amendmentrights were violated. Therefore, we will addressonly his Fifth Amendment argument. Section13A-5-50, Ala.Code 1975, provides, in pertinentpart:

"The fact that a particular capital offense asdefined in Section 13A-5- 40(a) necessarilyincludes one or more aggravating circumstancesas specified in Section 13A-5-49 shall not beconstrued to preclude the finding andconsideration of that relevant circumstance orcircumstances in determining sentence."

*959 Accordingly, under § 13A-5-50, Ala.Code1975, a jury may consider an element of capitalmurder as an aggravating circumstance if thatelement is listed in § 13A-5-49, Ala.Code 1975, asan aggravating circumstance. Further, this court hasheld that the use of an element of capital murder asan aggravating circumstance does not punish adefendant twice for the same offense. Burton v.

State. 651 So.2d 641 (Ala.Cr.App.1993), affd, 651So.2d 659 (Ala.1994), cert. denied, 514 U.S. I 115,115 S_Ct. 1973, 131 L.Ed.2d 862 (1995).

" 'This practice, known as "double counting" or"overlapping," has been upheld. Haney v. Stare,603 So.2d 368 (Ala.Cr.App.1991), affd, 603So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925,113 S.Ct. 1297, 122 L.Ed.2d 687 (1993); Kuenael[v. State, 577 So.2d 474, 489 (Ala.Cr.App.1990),

atT'd, 577 So.2d 531 (Ala.). cert. denied, 502 U.S.886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991) ]." 'Section 13A-5-50. Code of Alabama 1975,states , in part, as follows:" ' "The fact that a particular capital offense asdefined in section 13A- 5-0(a) necessarilyincludes one or more aggravating circumstancesas specified in section 13A-5-49 shall not beconstrued to preclude the finding andconsideration of that relevant circumstance orcircumstances in determining sentence."" 'Clearly, § 13A-5-50 provides that a jury mayconsider an element of capital murder as anaggravating circumstance if that element is listedin § 13A-5-49. Further, this court has repeatedlyheld that the use of an element of capital murderin such a way does not, as the appellant argues,punish a defendant twice for the same offense.


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Kuenzel, supra ; see also Ex parte Kennedy, 472

So.2d 1106 (Ala.), cert. denied, 474 U.S. 975,106 S.Ct. 340, 88 L.Ed.2d 325 (1985)." ' "A capital punishment scheme, under which

the same felony may form the basis of an

essential element of the crime and an aggravating

circumstance for consideration by the jury inrecommending a sentence , does not constitute a

denial of the guarantee against double jeopardy."

it 'Kuen_el, 577 So.2d at 488, quoting

Fortenherrv v. State, 545 So.2d 129, 142(Ala.Cr.App.1988), affd, 545 So.2d 145(Ala.1989), cert. denied, 495 U.S. 911, 110 S.Ct.1937, 109 L.Ed.2d 300 (1990).'"Burton, 651 So 2d at 657-58."

Hutcherson, 677 So.2d at 1201. Therefore, theappellant's argument is without merit.

XVI.

[88] The appellant 's sixteenth argument is that "theAlabama statute limiting court-appointed attorneys'fees to one thousand dollars for out-of- court workfor each phase of trial is deplorable andunconstitutional." (Appellant's brief at p. 59.)Section 15-12-21(d), Ala.Code 1975, limits fees forcourt-appointed attorneys to $1,000 for out-of-courtwork in a capital trial, based on a $20 hourly rate.He contends that this limitation on compensationviolates the separation of powers doctrine,constitutes a taking without just compensation,deprives indigent capital defendants of the effectiveassistance of counsel , and denies equal protection inviolation of the Fifth, Sixth, Eighth, and FourteenthAmendments to the United States Constitution, theAlabama Constitution, and Alabama state law.These claims have previously been addressed anddecided adversely to the appellant. Stewart v. State,730 So.2d 1203 (Ala.Cr.App.1996), affd, 730So.2d 1246 (Ala.1999); Ex parte Smith. 698 So.2d219 (Ala.), cert. denied, *960522 U.S. 957, 118S.Ct. 385, 139 LEd.2d 300 (1997); Boyd v. State.

715 So.2d 825 (Ala.Cr.App.1997), affd, 715 So.2d852 (Ala.), cert. denied, 525 U.S. 968, 119 S.C1.416, 142 L.Ed.2d 338 (1998); Slaton v. State. 680So.2d 879 (Ala.Cr.App.1995), affd, 680 So.2d 909(Ala.1996), cert. denied, 519 U.S. 1079, 117 S.Ct.742, 136 L.Ed.2d 680 (1997); May v. State, 672

So.2d 1310 (Ala.1995); Barbour v. State, . 673So.2d 461 (Ala.Cr.App.1994), affd, 673 So.2d 473(Ala.1995), cert. denied, 518 U.S. 1020, 116 S.Ct.2556, 135 L.Ed.2d 1074 (1996); Johnson v. State.620 So.2d 679 (Ala.Cr.App.1992), rev'd on other

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grounds, 620 So 2d 709 (Ala.), cert. denied, 510U.S. 905, 114 S.Ct. 285. '126 L.Ed.2d 235 (1993);Smith v. State, 581 So.2d 497 (Ala.Cr.App.1990),rev'd on other grounds, 581 So.2d 531 (Ala.1991);Ex parte Grayson, 479 So.2d 76 (Ala.), cert.denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d157 (1985); Sparks v. Parker, 368 So.2d 528 (Ala.), appeal dismissed, 444 U.S. 803, 100 S.Ct. 22, 62L.Ed.2d 16 (1979).

Moreover , the statute provides that counsel shall bepaid for all hours spent in-court and shall bereimbursed for any expenses reasonably incurred aslong as the trial court approves those expenses inadvance. Therefore, the appellant 's contentions arewithout merit.

XVII.

[89] The appellant's seventeenth argument is thatAlabama's method of execution constitutes crueland unusual punishment. However, both Alabamacourts and the United States Supreme Court haverepeatedly held that the death penalty is not per secruel and unusual punishment and that electrocutionas a means of capital punishment does not constitutecruel and unusual punishment Williams v. State,627 So.2d 985 (Ala.Cr.App. 199 1), affd, 627 So.2d999 (Ala.1993), cert. denied, 511 U.S. 1012, 114S.Ct. 1387, 128 L.Ed.2d 61 (1994); Zant v.Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d235 (1983); ,fitt v. Florida, 428 U.S. 242, 96S.Ct. 2960, 49 L.Ed.2d 913 (1976); Furman V.

Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d346 (1972); Bovkin v. State, 281 Ala. 659, 207So.2d 412 (1968), reversed on other grounds, 395U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

[90] The appellant also argues that Alabama'smethod of electrocution is unreliable and that ittherefore constitutes cruel and unusual punishment.He contends that the State "will utilize faultyequipment, unqualified personnel , and inadequateprocedures " in executing him. (Appellant 's brief atp. 60.) In support thereof, he asserts that Alabama'selectric chair has malfunctioned during two of thelast ten executions, and he specifically refers toseveral executions that he contends were "botched."We addressed a similar argument in McNair v.State. 706 So.2d 828 (Ala.Cr.App.1997), cert.denied, 523 U.S. 1064, 118 S.Ct. 1396, 140L.Ed.2d 654 ( 1998), in which we held:

" 'The United States Supreme Court addressed the


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death by electrocution issue in In re Kemmler,

136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890).In determining what constitutes cruel and

unusual punishments, the Court stated:"Punishments are cruel when they involve tortureor a lingering death; but the punishment of deathis not cruel within the meaning of that word asused in the constitution. It 'implies there issomething inhuman and barbarous ,--somethingmore than the mere extinguishment of life." Id. at

447, 10 S.Ct. at 933. In holding that such apunishment is not cruel or unusual, the Courtreasoned "that this act was passed in the effort todevise a more humane method of reaching theresult" . Id. Accord *961Spinkellink v.

Wainwright, 578 F.2d 582, 616 (5th Cir.1978).Appellant's contention is therefore without merit;death by electrocution does not amount to crueland unusual punishment per se, but is aconstitutional means of imposing a sentence ofdeath.'"Jackson v. State, 516 So.2d 726, 737(Ala..Cr.App.1985), remanded on other grounds,516 So.2d 768 (Ala.1986)."The appellant also contends that trial counselshould have argued that Alabama 'utilizesinadequate equipment, unqualified personnel, andinadequate procedures' and that Alabama'selectric chair has consistently resulted 'inexcessive burning and mutilation of condemnedprisoners and rendered death by electrocution inAlabama unpredictable and consistentlytorturous,' as, he asserts, is evidenced by theexecutions of Horace Dunkins and John Evans (inthose executions repeated applications ofelectrical current were required because of amalfunction in the apparatus) and by theexecutions of Dunkins, Michael Lindsay, andWayne Ritter (post-execution examinationsrevealed burns to portions of the prisoners'bodies)." 'In Francis v. Resweber, 329 U.S. 459, 67 S.Ct.374, 91 L.Ed. 422 (1947), the United StatesSupreme Court, in addressing the issue ofwhether it was cruel for a state to electrocute aprisoner after the state's first attemptedelectrocution failed, stated:" ' "The cruelty against which the Constitutionprotects a convicted man is cruelty inherent in themethod of punishment, not the necessarysuffering involved in any method employed toextinguish life humanely. The fact that anunforeseeable accident prevented the prompt

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consummation of the sentence cannot, it seems tous, add an element of 'cruelty to a subsequentexecution. There is no purpose to inflictunnecessary pain nor any unnecessary paininvolved in the proposed execution.... We cannotagree that the hardship imposed upon thepetitioner rises to that level of hardshipdenounced as denial of due process because ofcruelty.""'Id. at 464, 118 S.Ct. 1396, 67 S.Ct. at 376-77.

'The very issues raised by appellant here wereaddressed in Ritter- v. Smith, 568 F.Supp. 1499(S.D.Ala.1983), afrd in part, rev'd in unrelatedpart, 726 F.2d 1505 (1 1 th Cir.), cert. denied, 469U.S. 869, 105 S.Ct. 218[, 83 L.Ed.2d 148] (1984), wherein the court adopted the opinion and viewsexpressed by Judge Sam C. Pointer after ahearing on the issues, in Raines v. Smith, No.83-P-1080-S (N.D.Ala.) (unpublished orderentered June 3, 1983) (certified copy attached asAppendix, Ritter v. Smith, 568 F.Supp. at 1525-27). The claims presented to Judge Pointer wereas follows: (1) given the nature of the equipmentand the procedures used, there was unnecessaryand wanton infliction of pain and suffering uponpersons subject to electrocution in Alabama; (2)the equipment and method involve an unreliablemethod of execution; and (3) electrocutioninvolves, in its method and equipment, amutilation of the body which should be viewed ascontrary to and violative of the EighthAmendment. Id. at 1525-26.

'After an evidentiary hearing, Judge Pointerheld that the claims were due to be dismissed. Id.at 1527. In reaching this decision, Judge Pointernoted that the testimony established that over thepast 50 *962 years the chair in question had beenused approximately .154 times without anyfailure; that Evans suffered no pain after theinitial shock; and that the possibility that thechair may malfunction at some time in the futuredoes not render its use unconstitutional. Id. at1526. Judge Pointer relied upon Francis v.Resweber and In re Kenimler [, 136 U.S. 436, 10S.Ct. 930, 34 L.Ed. 519 (1890),] in holding thatAlabama's method of electrocution isconstitutional. Id. at 1526-27. We agree." There is no evidence before this court thatcontradicts the findings made by Judge Pointer.There has been absolutely no showing that theState's method of enforcing a death sentenceinflicts any more pain than is absolutelynecessary. It has not been established that the


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equipment used in the electrocution of JohnLewis Evans malfunctioned or that Evans feltanything after the first split second of the first joltof electricity administered.'"Jackson, 516 So.2d at 738."

706 So.2d at 846-47. Thus, the appellant'sarguments about Alabama's method of execution arewithout merit.

XVIII.

[91] The appellant's eighteenth argument is that thetrial court improperly overrode the jury' s unanimousrecommendation that he be sentenced toimprisonment for life without -the possibility ofparole. In support thereof, he complains that"Alabama is the only state in the country whichallows trial courts to reject jury capital sentencingverdicts without reference to any uniform norm orstandard." (Appellant's brief at p. 62.) He furthercontends that, "[b]ecause the override isstandardless in Alabama, there is a haphazard andinconsistent application of the ultimate sanction in amanner that is inconsistent with the precedents ofthe Supreme Court-" (Appellant's brief at p. 65.)We have previously addressed and rejected similararguments in Carr v. State, 640 So.2d 1064(Ala.Cr.App.1994), and in Bush v. State, 695 So.2d70 (Ala.Cr.App.1995), affd, 695 So.2d 138 (Ala.),cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139L.Ed.2d 320 (1997). In Carr, we explained:

"The appellant maintains that the jury overrideprovision of Ala.Code 1975, § 13A-5-47(e), isunconstitutional. He claims that the statutecontains no guidelines for the sentencing judge tofollow and that the statute violates the EighthAmendment, particularly in a case where, as here,the jury unanimously recommends a sentence oflife imprisonment without parole."Sentencing by a jury is not constitutionallyrequired. Spasiano v. Florida, 468 U.S. 447, 104S.Ct. 3154, 82 L.Ed.2d 340 (1984). Proffitt v.Florida, 428 U.S. 242, 251-52, 96 S.Ct. 2960,2966-67, 49 L.Ed.2d 913 (1976), and §13A-5-47(e) set 'out a standard of review for juryoverride that meets constitutional requirements.'McMillian v. State, 594 So.2d 1253, 1272-73(Ala.Cr.App. 199 1), remanded on other grounds,594 So.2d 1288 (Ala.1992). The argument thatthe jury override provision of § 13A-5-47(e) isconstitutionally infirm because it allows for the'arbitrary and standardless' imposition of thesentence of death has been repeatedly rejected by

Page 39

the appellate courts of, this state. See, e.g., &parte Jones, 456 So.2d 380, 381-83 (Ala.1984),cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84L.Ed.2d 838 (1985); McMillian v. State, 594So.2d at 1272; Parker v. State. 587 So.2d 1072,1098 (Ala.Cr.App. 199 1). See also Ex parte Giles,632 So.2d 577 (Ala.1993) (holding *963 that

Ala. Const. § I1 'does not preclude judicialoverride of the jury's sentencing recommendationin a capital case')."The trial court's sentencing order reflects the factthat the court gave 'consideration to therecommendation of the jury in its advisory verdictthat the defendant be sentenced to life withoutparole.' R. 65. The court, however, afterindependently weighing the aggravating andmitigating circumstances, determined that theaggravating circumstance outweighed themitigating circumstances and chose not to acceptthe jury's recommendation. Constitutional andstatutory provisions require no more."

Carr, 640 So.2d at 1073-74."The appellant's contention that the overrideprovision of § 13A-5-47(e) is faciallyunconstitutional is without merit. The UnitedStates Supreme Court, as well as the courts of thisstate, have consistently upheld the validity of thejudicial override of advisory jury verdicts. See,e.g., Harris v. Alabama, 513 U.S. 504, 115 S.Ct.1031, 130 L.Ed.2d 1004 (1995); Clemons v.Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108L.Ed.2d 725 (1990); Spa_iano v. Florida, 468U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Ex parte Jones, 456 So.2d 380 (Ala.1984), cert.denied, 470 U.S. 1062, 105 S.Ct. 1779, 84L.Ed.2d 838 (1985); Freeman v. Stale, 555 So.2d

196 (Ala.Cr.App.1988), affd, 555 So.2d 215(AIa.1989), cert. denied, 496 U.S. 912, 110 S.Ct.2604, 110 L.Ed.2d 284 (1990). In this state, therecommendation of the jury is advisory only andis not binding upon the trial court. Ex parteJones. The trial court, not the jury, is thesentencing authority. Freeman v. State."Section 13A-5-47(e) prescribes the followingstandard of review for jury override, whichstandard meets constitutional requirements: 'Thewhole catalog of aggravating circumstances mustoutweigh mitigating circumstances before a trialcourt may opt to impose the death penalty byoverriding the jury's recommendation.' Ex parteJones, 456 So.2d at 382. The appellant'sargument that the Alabama Death Penalty Actpermits a trial court to impose a death sentence


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without any standards to guide its discretion issimply not true and ignores the requirements ofthe override provision."The appellant argues that we should follow theFlorida standard for jury override prescribed inTedder v. State, 322 So.2d 908 (Fla.1975).Tedder provides that, in order for a trial court toreject a jury's recommendation of a sentence oflife imprisonment without parole, 'the factssuggesting a sentence of death [must be] so clearand convincing that virtually no reasonableperson could differ.' Id. at 910. The Tedder

standard is not constitutionally mandated, Harris

v. Alabama: Ex parte Jones, and we have chosennot to read the Tedder standard into our deathpenalty statute."What we do require is that, before sentencing adefendant to death, the trial court consider all theavailable evidence; hear arguments onaggravating and mitigating circumstances; enterwritten findings of fact summarizing the crimeand the defendant's participation in it; makespecific written findings concerning the existenceor nonexistence of each aggravating circumstanceenumerated in § 13A-5-49, each mitigatingcircumstance enumerated in § 13A-5-51, and anyadditional mitigating circumstance offeredpursuant to § 13A- 5-52; consider and weigh theadvisory verdict of the jury; consider and weighthe presentence investigation report; considerand weigh , the mitigating and aggravatingcircumstances; ' and determine. *964 that theaggravating circumstances outweigh themitigating circumstances. We believe that thisscheme adequately channels the trial court'sdiscretion so as to prevent arbitrary results. TheEighth Amendment does not require the state todefine the weight the sentencing judge mustaccord an advisory verdict. Harris v. Alabama." '[T]he sentencing authority in Alabama, the trialjudge, has unlimited discretion to consider anyperceived mitigating circumstances , and he canassign appropriate weight to particular mitigatingcircumstances . The United States Constitutiondoes not require that specific weights be assignedto different aggravating and mitigatingcircumstances . Murrw v. State, 455 So.2d 53(Ala.Cr.App. 1983), rev'd on other grounds, 455So 2d 72 (AIa.1984). Therefore, the trial judge isfree to consider each case individually anddetermine whether a particular aggravatingcircumstance outweighs the mitigatingcircumstances or vice versa. Moore v. Balkcom,

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716 F.2d 1511 (11th Cir.1983). Thedetermination of whether the aggravatingcircumstances outweigh the mitigatingcircumstances is not a numerical one, but insteadinvolves the gravity of the aggravation ascompared to the mitigation.'"Clisby v. State. 456 So.2d 99, 102(Ala.Cr.App.1983). We are convinced, afterreviewing the record in this case , that the trialcourt complied with the sentencing scheme ofAlabama's death penalty statute and that thesentence that it imposed, overriding the jury'sverdict, met constitutional requirements and wasnot arbitrary, discriminatory, or fundamentallyunfair."

Bush, 695 So.2d at 93-94.

Similarly, for the reasons set forth in this opinion,we conclude that the trial court complied with thesentencing requirements of Alabama's death penaltystatute in overriding the jury's verdict and insentencing the appellant to death. We further notethat, in its sentencing order, the trial courtspecifically explained its reasons for overriding thejury's advisory verdict. Therefore, the trial courtdid not improperly override the jury's unanimousrecommendation that the appellant be sentenced toimprisonment for life without the possibility ofparole for the capital conviction.

M.The appellant ' s nineteenth argument is that he isentitled to a new trial based on the cumulative effectof the above-alleged errors. However , we havereviewed those claims individually and have notfound any error. Likewise , we have consideredthose claims cumulatively , and we still do not findany error that requires a new trial . Thus, thiscontention is without merit.

XX.

Pursuant to § 13A-5-53, Ala.Code 1975, we mustaddress the propriety of the appellant's convictionand sentence of death. The appellant was indictedand convicted of capital murder because hecommitted the murder during the course of arobbery in the first degree. See § 13A-5-40(a)(2),Ala.Code 1975.

[92] The record does not indicate that the sentenceof death was imposed as a result of the influence ofpassion, prejudice, or any other arbitrary factor. §


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13A-5-53( 6)(I), Ala.Code 1975.

The trial court found that the aggravatingcircumstances . outweighed the mitigatingcircumstances . The trial court found *965 that theState proved two aggravating circumstances: 1) theappellant committed the capital offense while he oran accomplice was engaged in the commission of arobbery, § 13A- 5-49(4), Ala.Code 1975, and 2) theappellant committed the capital offense while hewas under sentence of imprisonment, §13A-5-49(1), Ala.Code 1975. The trial court foundthat there was one statutory mitigatingcircumstance--the appellant was 18 years old at thetime of the offense, § 13A-5-51(7), Ala.Code 1975.The trial court also found the followingnonstatutory mitigating circumstances: 1) theappellant voluntarily surrendered to the police; 2)the appellant did not attempt to evade his probationofficer once he had been declared delinquent; 3)the appellant was truthful to his mother and was notrouble at home; 4) the appellant was not violenttoward. his girlfriend; 5) the appellant, according tohis aunt, is a truthful person; and 6) the appellantexhibited remorse about the crime. The sentencingorder shows that the trial court weighed theaggravating and mitigating circumstances and, asset forth in Part IV of this opinion, carefullyconsidered the jury's advisory verdict. We concludethat the trial court's findings are supported by therecord and that it correctly sentenced the appellantto death.

[93] Section 13A-5-53(b)(2) requires us to weighthe aggravating and mitigating circumstancesindependently to determine the propriety of theappellant's sentence of death . After independentlyweighing the aggravating and mitigatingcircumstances , we find that the death sentence isappropriate.

[94] As required by § 13A-5-53(b)(3), we mustdetermine whether the appellant's sentence wasdisproportionate or excessive when compared to thepenalties imposed in similar cases . The appellantmurdered the victim during the course of a robberyin the first degree . Similar crimes are beingpunished by death throughout this state . Gaddy v.State. 698 So .2d 1100 (Ala.Cr.App.1995), affd,698 So .2d 1150 (Ala.), cert. denied, 522 U.S. 1032,118 S.Ct. 634, 139 L.Ed.2d 613 ( 1997); Bush v.State, 695 So .2d 70 (Ala.Cr.App.1995), affd, 695So.2d 138 (Ala.), cert. denied, 522 U.S. 969, 118

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S.Ct. 418, 139 L.Ed.2d 320 (1997); Payne v. State,683 So .2d 440 (Ala.Cr.App.1995), affil. 683 So.2d458 (Ala. 1996), cert . denied, 520 U.S. 1146, 117S.Ct. 1319, 137 L.Ed.2d 481 (1997); Windsor v.State. 683 So.2d 1027 (Ala.Cr.App.1994), affd,683 So.2d 1042 (Ala.1996), cert. denied, 520 U.S.1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997);Burton v. State, 651 So .2d 641 (AIa.Cr.App.1993 ),affd , 651 So.2d 659 (Ala.1994), cert. denied, 514U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995). Accordingly, we conclude that the sentence wasneither disproportionate nor excessive.

Finally, we have searched the entire record for anyerror that may have adversely affected theappellant's substantial rights, and we have not foundany. Rule 45A, Ala. R.App. P.

Accordingly, we affirm the appellant's convictionsand sentences as to both the capital offense and thetheft offense.

AFFIRMED.

LONG, P.J., and McMILLAN, COBB, and FRY,JJ., concur.

APPENDIX'Trial Court's Order Dated June 25, 1998

1. SYNOPSIS

Lefrick Moore (Moore) was shot and killed onApril 25, 1997, by Shonelle Jackson (Jackson).The motivation for the homicide was the theft of thestereo system from Moore's car. Jackson wasconvicted of the capital offense, and the juryrecommended that he be punished by imprisonment*966 for life without the possibility of parole.

Il. PROCEDURAL HISTORY

Jackson [FN I ] was indicted in a four-countindictment for (1) the capital murder of Mooreduring a robbery in the first degree, Ala. Code13A-5- 40(2); (2) the capital murder of Moorepursuant to § 13A-5-40(a)(17); (3) theft of anautomobile belonging to Ms. Lottie Flowers; and(4) an alternative count of receiving stolen propertyin the first degree (Ms. Flowers' automobile). Thecharge of capital murder pursuant to13A-5-40(a)(17) was dismissed before trial, and attrial, the State elected to proceed on the charge of


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theft of property in the first degree and the chargeof receiving stolen property was dismissed.

FN1. Antonio Barnes, Eric Williams andChristopher Rudolph were also indictedfor this capital offense. They testifiedagainst Jackson without any inducement bythe State. Each appeared to attempt tolessen their indivi4ual culpability and shiftblame to the other co-defendants. All hadan interest in casting Jackson as the leaderand prime culprit.

The jury returned verdicts of guilty of capitalmurder and theft of property in the first degree; andafter a separate sentencing hearing, the juryrecommended by a vote of 12-0 that Jackson bepunished by life imprisonment without thepossibility of parole.

III. THE VICTIM

Lefrick Moore was 23 years old, and he wasmarried and the father of one child.

IV. SUMMARY OF THE CRIME ANDJACKSON'S PARTICIPATION

The events which led to Moore's homicide startedApril 24, 1997, and were unrelated to Moore. Onthat evening , "Cocomo" slapped Jackson at anightclub. The next day, April 25, Jacksondetermined to look for Cocomo and the tendenciesof the evidence are that Jackson intended to doCocomo physical injury, should he be found.

Jackson did not have a car. He approachedAntonio Barnes about stealing a car for him. [FN2]Barnes readily agreed, and Barnes and Jacksonsolicited "Wendel" to drive them to BrookviewApartments, where Jackson and Barnes stole Ms.Flowers' car. Barnes actually broke into the car andJackson stood lookout.

FN2. The evidence established that Barnesis known as a car thief.

Jackson, Barnes, Eric Williams, and ChristopherRudolph then commenced the search for Cocomo.

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Jackson was armed with a .380 calibersemiautomatic pistol; Barnes was armed with a.357 magnum handgun; Rudolph was armed with a9 millimeter pistol; and Williams was armed with ashotgun. The search for Cocomo was futile;however, near the Smiley Court housingneighborhood, they saw Moore driving his car.Williams told the group that he was familiar withthe car and the driver, and that the car had goodmusic. Jackson then announced that "they" weregoing to rob the people in Moore's car. Theystalked Moore until the opportunity presented itselfto cut off Moore's car. Jackson passed Moore's carand cut in front of it to stop Moore. The carscollided and Jackson and Williams jumped out asMoore and the passenger in the car, GerardBurdette, were getting out. At this point, Jacksonand Williams fired their weapons. Before firing,however, Jackson said to Moore, "no need to run,motherfucker." [FN3] Jackson shot Moore, andMoore ran 100 to 150 yards, at which point *967 hecollapsed and died. Jackson drove to where Moorelay, and Jackson's purpose was to rifle throughMoore's pockets. [FN4] Barnes and Williams gotinto Moore's car and left the scene. They hid thecar, and Williams took the stereo from the car. Thenext day, Jackson wanted to strip the car, and he,Barnes and "Fido" went to where the car washidden; however, a Mr. Porterfield interruptedthem and they left without stripping the car. On thissame day, Williams told Jackson that Moore wasdead, to which Jackson replied, "I don't give a fuck,he didn't stay where we stayed at."

FN3. This statement is attributed toJackson by Eric Williams.

FN4. Id.

Jackson turned himself in - to the MontgomeryPolice Department after learning that he was wantedfor questioning. He gave three conflictingstatements to detectives. In the first statement hedenied any knowledge of the event. He later saidthat he was with Deon driving around looking forCocomo in a stolen car but had no involvement inthe murder. In the final statement he admitted thathe was at the scene and armed With a .380 pistol;however, he denied shooting Moore.

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V. AGGRAVATING CIRCUMSTANCES

The State argues that it proved two aggravatingcircumstances: (1) that the capital offense wascommitted while Jackson was engaged in or was anaccomplice in the commission of a robbery, §13A-5-49(4); and (2) that the capital offense wascommitted by a person under sentence ofimprisonment, § 13A-5-49(1). The Court finds thatthe State proved both aggravating circumstancesbeyond a reasonable doubt.

The § 13A-5-49(4) sentencing aggravatingcircumstance is the mirror of § 13A-5 -40(2) guilt"aggravator ," and when die . jury found Jacksonguilty of the capital offense, the jury found thesentencing aggravator beyond a reasonable doubt.The Court's independent examination of theevidence , as summarized in section [IV .], leads theCourt to hold that the jury's verdict in the guiltphase on this aggravator is highly reliable and theCourt independently finds that the State proved thiscircumstance beyond a reasonable doubt.

It is undisputed that when Jackson committed theoffense he was on probation on suspendedsentences for convictions of burglary in the seconddegree and theft of property in the first degree(CC-95-2147-EWR) and possession of marijuana inthe first degree (CC-95-2367-EWR).

VI. MITIGATING CIRCUMSTANCES

Jackson suggests one statutory mitigatingcircumstance ; he was 18 years old at the time of theoffense. § 13A-5-51(7). He suggests twononstatutory mitigating circumstances: ( 1) that hevoluntarily surrendered to the police ; and (2 ) that hedid not evade or resist arrest and he did not avoidhis probation officer after he was declared adelinquent probationer.

a. Statutory Mitigating Circumstances

The Court finds that Jackson has a significanthistory or prior criminal activity. [FNS]

FN5. His juvenile record is not a matter toconsider when determining whether thecircumstance exists. Freeman V. State,651 So.2d 576 (Ala.Crim.App.1994).Jackson has three prior felony convictions.

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Windsor v. State. 633 So.2d 1027(Ala.Crim.App.1904), atfd, Ex parteWindsor. 683 So.2d 1042 (Ala.1996).

The Court finds that the capital offense was notcommitted while Jackson was under the influence ofextreme mental or emotional disturbance. There isno evidence that Jackson suffered any mental illnessor mental instability or that his *968 actions weremotivated by anything other than his desire tocommit the theft of the stereo from Moore'sautomobile.

The Court finds that Moore was not a participant inJackson's conduct and the Court finds that Mooredid not consent to Jackson's conduct. No evidencesupports this circumstance.

The Court finds that the Defendant was not anaccomplice in the capital offense committed byanother and the Court finds that his participationwas not relatively minor; to the contrary , Jacksonwas the ringleader in this offense, and there isevidence that he was the shooter. [FN6]

FN6. There is also evidence that suggeststhat Barnes, not Jackson, fired the shot thatkilled Moore. See infra.

The court finds that Jackson did not act underextreme duress or under the substantial dominationof another person. There is no evidence of anyform of duress and, as stated above, Jackson wasthe ringleader.

The Court finds that there is no evidence whichsuggests that Jackson lacked the capacity toappreciate the criminality of his conduct, and thereis no evidence that he lacked the ability to conformhis conduct to the requirements of law.

Jackson was 18 years old at the time of thecommission of this offense. The Court finds thathis age is a mitigating circumstance, but it is dueslight weight for the reasons stated below.

When considering the weight to be given toJackson 's age as a mitigating factor, this case isquite similar to Shellito v. State, 701 So.2d 837(Fla. 1997).


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At the time of the homicide , Jackson was 6 feettall, weighed 175 pounds and was within 35 days ofbeing 19 years old. He is now 20 years old. At thetime of the offense he apparently was, and he is, aphysically mature adult . The victim was 23 yearsold.

Jackson 's criminal record started at age 12 injuvenile court . He was arrested eight times as ajuvenile , and he was adjudicated guilty of fourfelonies (burglary in the third degree , theft ofproperty in the second degree, robbery in the firstdegree, and robbery in the first degree ), and he wascommitted to the Department of Youth Services onadjudications for assault in the. third degree and twocharges of robbery in the first degree . At age 17 hewas waived from the juvenile court to adult courtfor prosecution on charges of burglary in the seconddegree , theft of property in the first degree, andpossession of marijuana in the first degree.

Jackson 's combined criminal record shows that hehas been arrested 13 times and he has been chargedwith 14 separate crimes --five of which are felonies.Two of the felonies and one misdemeanor (assaultin the third degree ) are violent crimes . He was onprobation for three felonies at the time hecommitted the homicide . He is the father of athree -month-old child . According to the presentencereport , he was a daily user of marijuana since age14 and a regular consumer of alcohol . He does notconsider his marijuana use or his alcoholconsumption a problem.

Jackson's age is a marginal mitigatingcircumstance . Shellito at 843.

b. Nonstatutory Mitigating Circumstancesi. General

The Court finds as a mitigating circumstance thatJackson voluntarily surrendered to the police;however, this mitigating circumstance receivesslight weight *969 inasmuch as Jackson denied anyresponsibility in this matter and attempted to avoidall responsibility.

The Court finds that it is a mitigating circumstancethat Jackson did not attempt to evade his probationofficer once he had been declared delinquent. But,the Court gives this mitigating circumstance littleweight inasmuch as the delinquent charge orcharges did not grow out of the incident involving

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Moore; rather , they grew out of other violations ofhis probation.

The Court finds as a mitigating circumstance thatJackson was truthful to his mother and was notrouble at home; however , she further testified thathe had no violent tendencies and he had only minorscrapes with the law . In view of his juvenile recordand his adult criminal record , either Ms. Jacksonwas mistaken or her testimony was colored by hermotherly love and motherly instincts . The recordreflects that Jackson in fact has violent tendenciesas exhibited by two juvenile adjudications forrobbery in the first degree and an adjudication forassault in the third degree , and it can hardly be saidthat his involvement with the law was minor.Therefore , the Court gives little weight to thismitigating circumstance.

The Court finds as a mitigating circumstance thatJackson was not violent toward his girlfriend, andthat, according to his aunt, he is a truthful person.However, in view of his overall criminal history andhis apparent untruthful statements to police officers,the Court gives these circumstances slight weight.

The Court has examined the record for otherevidence of non-statutory mitigating circumstances.In this regard, the court has examined Jackson'sstatement in the presentence report. His statementdoes exhibit remorse; however, it appears to theCourt that just as Jackson did in his statements tothe police, he is still attempting to avoidresponsibility for this offense; and in view of hiscriminal history the Court has a legitimate basis todoubt and the Court does doubt the bona fides ofhis expressed remorse.

ii. The Advisory Verdict

Section 13A -5-47(e) requires that the Courtconsider the advisory verdict in determiningJackson's sentence . Whether the advisory verdict oflife imprisonment without the possibility of paroleis considered a mitigating circumstance is anunsettled issue . See Lewis v. State, 398 So.2d 432(Fla.1981 )(jury recommendation of life withoutparole is considered a mitigating circumstance).But Ed Carnes (now Judge Ed Carnes of theEleventh Federal Judicial Circuit ) opined in 1981that the life recommendation is not a mitigatingcircumstance . E. Carnes , Alabama's 1981 CapitalPunishment Statute, 42 Ala . Law. 456 , 490 n. 37


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(July 1981). The court is not cited to any Alabamacase that speaks to this issue.

The death acts of Alabama, Florida, and Indianaallow the sentencer--the trial judge--to override ornot accept the advisory verdict; however, unlike thestates of Florida and Indiana, neither the AlabamaDeath Act nor Alabama case authority informs thetrial court how it is to consider the advisory verdict.[FN7]

FN7. The holding in Roark v. State, 644N.E.2d 565 (Ind.1994), reh'g denied, ---N.E.2d ---- (Ind. 1995), );e some extent, andto a greater extent the holding in Tedder v.State, 322 So.2d 908 (Fla.1975), directtrial judges' consideration of the advisoryverdicts in those states. Indiana requiresthat "at the point of final decision the[trial] court reflect upon the juryrecommendation against imposing death."Roark at 570. However, the appellatecourt's independent review when the juryhas recommended life and the trial judgesentences to death is guided by thestandard of Martine-- ChaveF v. State. 539N.E.2d 4, 5 (Ind.1989), which requires thatbefore the death sentence is affirmed "itmust appear ... [to the court] that all thefacts available in the record point soclearly to the imposition of the deathpenalty that the jury's recommendation isunreasonable ." Roark at 571 . It is notunreasonable to consider that an Indianatrial court judge may impose this standardsub silentio. Before a Florida trial judgecan override the jury's life verdict, "thefacts suggesting a sentence of death shouldbe so clear and convincing that noreasonable person could differ." Tedder at910. Thus far Judge Colquitt's expectationthat "Alabama appellate courts canreasonably be expected to develop andapply restrictions to a trial judge's power toreflect a sentence recommended by a jury"has not been realized . J.A. Colquitt, TheDeath Penalty Laws of Alabama, 33Ala.L.Rev. 213, 328 (1982).

When considering the advisory verdict the Courtconsidered two approaches: (1) *970 to compare

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this case to other similar reported cases; and (2) totest the reliability of the advisory verdict. TheCourt initially determined that it was moreappropriate to compare similar cases because theCourt thought that this case could be approximatelymeasured against a standard, and to this end theCourt required counsel to inform the Court of thesentences in other similar cases. However, in thefinal analysis, this method did not prove entirelysatisfactory because sentencing is ultimately judgedone and what intrinsically drives the sentence isnever truly discernable. The State has profferedfive cases for the Court's consideration: Lynn v.State, 477 So.2d 1365 (Ala.Crim.App.1984); Hartv. State, 612 So.2d 520 (Ala.Crim.App.1992); Carrv. State, 640 So.2d 1064 (Ala.Crim.App.1994);DeBruce V. State. 651 So.2d 599(Ala.Crim.App.1993); Cothren v. State, 705 So-2d849 (Ala.Crim App. 1997). The Court has read andconsidered each case, and although none is identicalto the case sub judice. each contains some parallelsand the Court is satisfied that taken together theyoffer a sufficient basis to compare against thesentencing verdict delivered by the jury in this case.

The Court has not ignored the response of thedefense. The Court does not accept as controllingthe oft-repeated statistic that "approximately two-thirds of death penalty cases in Alabama are resultof murder during the course of a robbery." Guthriev. State, 689 So.2d 948, 949 (Ala.Crim.App.1996).The defense makes a point that the appellate courtsdo not refer to the cases in which .the death penaltyis not imposed. The defense appears to argue thatthe analysis is not case-specific, which it suggests isconstitutionally required to determine whether thereis true proportionality in death sentencing . Whetherthis is correct as a matter of law is not an issue forthis Court to answer.

Having considered the advisory verdict and thecases proffered by the State, the court concludesthat a verdict of death in this case would not bedisproportionate or excessive when consideredagainst the cases cited above. [FN8]

FN8. The approach would be a neater fit ifthe jury had returned an advisory verdictrecommending death.

The alternative approach to complying with the


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statutory mandate that the Court "consider" theadvisory verdict is for the Court to test thereliability of the advisory verdict. To effectivelyutilize this approach, the Court should presume thatthe sentencing verdict was not driven by or partiallya product of the guilt-phase verdict. [FN9]However, as will be pointed out *971 below, theapproach is less satisfactory than the comparisonapproach.

FN9. The Court is not convinced thatindulging in this presumption is realistic.The jury deliberated for 35 minutes beforereturning its advisory verdict. As observedby Judge James L. Clement in State ofIndiana v. Dennis R. Roark, Cause No.45G04-8902-CF-00017 (Lake CountyIndiana Superior Court, Criminal Division,October 29, 1992):"In the death penalty or sentencing state ofthis trial, the jury deliberated onlythirty-five to forty minutes before returninga recommendation that the death penaltynot be imposed . I am not suggesting thistime of deliberation is a significant factorin my decision, but one has to wonderwhether the jury had time to carefullyevaluate and balance the aggravating andmitigating circumstances presented tothem. Roark at 6."Of course, it is understandable for a capitaljuror to retort, as noted by ProfessorMichel Mello: "If [the trial judge] wasn'tgoing to follow our sentencing verdict,why did he ask us for our opinion in thefirst place?" M. Mello, The Jurisdiction todo Justice: Florida's Jung Override andThe State Constitution, 18 U. Fla. St.L.Rev. 923, 927 (1991).

When considering the jury's recommendation, theCourt is aware that attempting to explore theobjective basis for the verdict may lead it intoexploring the subjective basis for the verdict, andthis would lead the Court down a slippery judicialslope. Therefore, the Court has consciouslyattempted to consider only the explanations basedon the facts and inferences of fact which could havebeen reasonably determined by the jury.

Before the analysis is undertaken, it is necessary to

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set out evidence before, the jury that was notproduced by testimony, and that is the statement ofGerard Burdette, the passenger in Moore's car. Awritten transcript of this statement to police was putinto evidence and provided to the jury in lieu of histestimony, because Burdette could not be located atthe time of trial.

According to Burdette, he was very "tight" withMoore. Transcript, unnumbered p. 9, question 4and answer. Therefore, die Court presumes hisstatement would be favorable to Moore. Hisstatement, not surprisingly, varies from thetestimony given by Barnes, Williams, and Rudolph.

Burdette's version of the event is "Got out theywindow and pointed - they gun, and told us, say,'Don't move.' ... And at first they shot out thewindow when they got out the window.... Then wegot out and ran , and they just kept shooting." Hesaid there were at least three people in the other car,maybe four; and he saw a black long .38 or maybe.357. "1 think it was a .38 though, brown handle."One of the people in Jackson's car (the chubby one)he had seen the day before. Transcript, p. 7.

Burdette did not identify anyone with a .380automatic, and he did not specifically enumeratehow many people fired shots. He said he heard fourto five shots (p. 8), and because he said he saw twopersons with weapons, it could be reasonablyinferred that the one or both fired. This latter point.is consistent with the trial testimony. However,according to Burdette, and the medical examiner'sopinion of the type bullet that killed Moore, theperson with the .38 or .357 would have fired thefatal shot. That person was Barnes, assuming thetestimony can be reconciled, because the evidencefrom Barnes and Williams is that Barnes had a .357.

When the Court takes Burdette's testimony intoaccount, there are several explanations for theadvisory verdict. First, the jury could have beenswayed by the pleas for mercy that were made byJackson's family members and his aunt. Secondly,the jury could have concluded that all codefendantswere equally culpable, and although thecodefendants testified they were not offeredleniency by the State, the *972 jury may haveconcluded that they would ultimately be treateddifferently by the State and the Court. In short, thejury may have reasoned that the State would notseek the death penalty against the codefendants so


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why should the jury return a death verdict in thiscase. Of course, this is a subjective evaluation of theverdict. Third, based on Burdette 's version of theevents the jury could have determined that Barnesfired the fatal shot. Fourth, keeping their oath thejury concluded that the mitigating circumstancesoutweighed the aggravating circumstances.

This kind of analysis fails in the end because thetrial judge is always privy to more factual and legalinformation than the jury. For instance, the Courthas the benefit of 1) a presentence investigation; 2)additional evidence from the final sentencinghearing (§§' 13A-5-47); and 3 ) legal information inthe form of appellate decisions to guide itsjudgment. With respect to legal information, theCourt notes that the jury is not told that there arereported cases that hold that three felonyconvictions can outweigh the 13A-5-51(l)mitigating factor, or that other courts in similarcircumstances have found that a defendant's age of18 at the time of the offense is not entitled to greatweight, or that residual doubt is not a properconsideration in determining the verdict. [FN 10]

FNIO. Indeed, all guilt-phase evidence isintroduced at the sentencing phase of thetrial and the jury is instructed to considerthis evidence.

The Court has reread its sentencing charge to thejury and it has noted its prejury selectionexplanation to the venire concerning the proceduresin a capital case. The Court has also noted theclosing arguments of the attorneys in the sentencingphase of the trial. The Court took pains toemphasize the importance of the sentencing verdictand, in fact, instructed the jury that the jurors were"to assume that what you decide will be thesentence imposed ." The Court notes the State didnot argue that the verdict was advisory. Therefore,I conclude that the jury was not led to believe thatits verdict had lessened importance or did not count.

In the final analysis the Court concludes that theresult from the attempt to determine the reliabilityof the advisory verdict is so uncertain that it is nothelpful; and it is unwilling to conclude that the jurydeparted from its instructions in rendering itsverdict. Without some concrete direction from anappellate court , the final conclusion is that the

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essential function of the advisory verdict is to focusthe court in its independent consideration ofweighing the aggravating circumstances andweighing the mitigating circumstances, andweighing them against each other.

A clinical judicial evaluation of all thecircumstances as enumerated in §§ V and VI(a) and(b) and weighing the aggravating circumstances andweighing them against the mitigating circumstances,and considering these matters with the 12-0 verdictin the forefront of the Court' s deliberations, theCourt finds that the two aggravating circumstancesoutweigh the mitigating circumstances. Theappropriate sentence in this case is death.

VII. CONCLUSION

Based on the foregoing findings, it is the judgmentof the Court that Shonelle Andre Jackson bepunished by death as provided by Ala.Code §15-18-80,- 81 and -82.

836 So.2d 915

END OF DOCUMENT


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Supreme Court of Alabama.

Ex parte Shonelle JACKSON.(In re Shonelle Jackson

V.State of Alabama).

1981723.

May 10, 2002.

After jury trial, defendant was convicted in theMontgomery Circuit Court, No. CC-97-2300,William R . Gordon and Tracy S. McCooey, JJ., ofcapital murder and first-degree theft of property.Defendant appealed. The Court of CriminalAppeals, 836 So .2d 915, affinmed . On grant ofcertiorari , the Supreme Court, 836 So.2d 973,remanded . On overruling of rehearing and on returnfrom remand , the Supreme Court held that: (1)police officer's false statement to defendant did notrender defendant 's statement involuntary; (2)exclusion of evidence that murder victim wasinvolved in drug activity was proper; and (3) trialcourt's overriding of jury's recommendation of lifeimprisonment and imposition of death penalty wasproper.

Affirmed.

Johnstone, J., concurred in part, concurred in theresult in part, and dissented in part as to the opinionand dissented from the denial of rehearing, withopinion.

Lyons, J., concurred in part, dissented in part as tothe rationale and dissented from the judgment anddissented from the denial of rehearing, with opinion.

West Headnotes

111 Criminal Law 4=412.1(4)110k412.1(4) Most Cited Cases

Police officer's false statement to defendant that

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fast-food restaurant cup had been found in vehiclecodefendant had been driving with defendant'sfingerprints on it did not render defendant'sstatement admitting he had been with othercodefendants at time of murder involuntary, whereofficer lied to defendant to find out whetherdefendant had relationship with other codefendants,and defendant was not threatened or coerced intogiving statement.

121 Criminal Law €1144.1211 Ok 1144.12 Most Cited Cases

In reviewing the correctness of the trial court'sruling on a motion to suppress, the Supreme Courtmakes all the reasonable inferences and credibilitychoices supportive of the decision of the trial court.

131 Criminal Law X1158(4)1 lOk1158(4) Most Cited Cases

The trial court's ruling on a motion to suppress willnot be disturbed unless it is palpably contrary to thegreat weight of the evidence.

[4J Criminal Law X412.1(1)I l Ok412.1(1) Most Cited Cases


Extrajudicial statements are prima facie involuntaryand inadmissible; the duty rests on the trial court todetermine whether the statement is voluntary, andunless it appears that it is voluntary it should not beadmitted.

[51 Criminal Law € 414110k414 Most Cited Cases

The burden is on the state to show voluntariness anda Miranda predicate before an extrajudicialstatement can be admitted into evidence.

161 Criminal Law 4=412.2(5)110k412.2(5) Most Cited Cases

Whether a Miranda waiver is voluntary, knowing,


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and intelligent depends on the particular facts andunderlying circumstances of each case, includingthe background, experience, and conduct of theaccused.

[71 Criminal Law €412(4)I10k412(4) Most Cited Cases

171 Criminal Law €695,5I I Ok695.5 Most Cited Cases

The voluntariness of an inculpatory statementremains undetermined until the trial court hasexamined the totality of the circumstancessurrounding the statement.

[81 Criminal Law X414110k414 Most Cited Cases

The trial court's finding that a statement wasvoluntary need only be supported by apreponderance of the evidence.

191 Criminal Law X412.1(1)I 10k412.1(1) Most Cited Cases

191 Criminal Law C=520(1)I10k520(1) Most Cited Cases


The test for the voluntariness of an extrajudicialconfession or an inculpatory statement is whether,in light of all the surrounding circumstances, thestatement was free from inducement, threat, orpromise, either expressed or implied, that wouldhave produced in the mind of the accused any fearof harm or hope of favor.

1101 Homicide €997203k997 Most Cited Cases(Formerly 203k 163(2))

Exclusion of evidence that murder victim wasinvolved in drug activity was proper, where neitherdefendant nor codefendants mentioned drug dealgone bad in statements to police, and passenger inautomobile with victim at time of murder did notmention that murder was related to drug activity.

1111 Criminal Law €632(4)110k632(4) Most Cited Cases

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A motion in limine is the proper method by whichto prohibit the introduction of irrelevant evidence.

[121 Criminal Law €632(4)110k632(4) Most Cited Cases

(12] Criminal Law x'1153(1)11Ok1153(1) Most Cited Cases

The decision to grant or deny a motion in liminerests within the sound discretion of the trial courtand will not be overturned on appeal absent anabuse of discretion.

[131 Criminal Law C-338(1)I I0k338(l) Most Cited Cases

The test for relevancy is whether the evidence bearsany logical relationship to the ultimate inference forwhich it is offered.


Trial court's overriding of jury's recommendation oflife imprisonment and imposition of death penaltywas proper , where in determining sentence trialcourt considered all available evidence, heardarguments on aggravating circumstances , includingfact that offense was committed while defendantwas engaged in robbery or attempted robbery, andthat defendant was under sentence of imprisonmentwhen offense was committed, and mitigatingcircumstances , including fact that defendant wasonly 18 years old, and entered findings, there wasno evidence in record indicating that bias, passion,or prejudice were factors in trial court's imposingdeath sentence , and trial court provided detailedanalysis of its consideration of jury'srecommendation of sentence of life imprisonmentand reasons it rejected that recommendation andsentenced defendant to death . Code 1975, §13A-5-53.

1151 Sentencing and Punishment C-329350Hk329 Most Cited Cases

The decision whether a particular mitigatingcircumstance is proven and the weight to be given itrests with the judge and the jury.

116] Sentencing and Punishment C-1789(10)350Hk 1789(10) Most Cited Cases


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Reinstatement of a jury recommendation of lifeimprisonment without parole is appropriate in thosecircumstances where the trial court has overriddenthe jury's recommendation based on bias , passion,or prejudice , a defective weighing of aggravating ormitigating circumstances , or disproportionateseverity of the sentence under all of thecircumstances . Code 1975, § 13A- 5-53(b).*981 Bryan A. Stevenson and Randall S. Susskind,of Equal Justice Initiative of Alabama,Montgomery , for petitioner.

Bill Pryor, atty, gen., and Kathryn D. Anderson andAnne C. Adams, asst. attys. gen., for respondent.

PER CURIAM.

The opinion of February 15, 2002, is withdrawnand the following is substituted therefor.

Shonelle Jackson was convicted of murder madecapital because the killing occurred during thecommission of a robbery in the first degree, see §13A- 5-40(a)(2), Ala.Code 1975; he was sentencedto death on that conviction . He was also convictedof first-degree theft of property, see § 13A-8-3,Ala.Code 1975, and on that conviction he wassentenced to life imprisonment as an habitualoffender with three prior felony convictions, see §13A-5- 9(c)(2), Ala.Code 1975. The Court ofCriminal Appeals affirmed both convictions andsentences . See Jackson v. State, 836 So.2d 915(Ala.Crim.App.1999). This Court granted certiorarireview , see Rule 39 (c), Ala.R.App.P., as it readbefore it was amended effective May 19, 2000,[FN I ] and remanded the case to the Court ofCriminal

FNI. Rule 39, Ala.R.App.P., was amendedeffective May 19, 2000, as todeath-penalty cases..The amendment removes the provision in

the former Rule 39(c) that provided that apetition for a writ of certiorari to theSupreme Court in a case in which the deathpenalty was imposed would be granted as amatter of right. With this amendment,review of death-penalty cases will be at thediscretion of the Supreme Court. TheSupreme Court retains the authority to

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notice any plain error or defect in the-proceedings under review in those cases.""Court Comment to Amendment to Rule 39, effective May 19, 2000, as todeath-penalty cases, etc." Ala.R.App.P.

*982 Appeals for that court to remand the case forthe trial court to conduct a hearing outside thepresence of the jury to determine the admissibilityof Jackson's inculpatory statement . Er parseJackson. 836 So.2d 973 (Ala.2001). We instructedthe Court of Criminal Appeals to forward the trialcourt's return to this Court. It appears that the trialcourt has complied with our directions and hasconducted a hearing to determine the admissibilityof Jackson's statement.

1.[1][2][3] Jackson contends that the trial court erredin denying his motion to suppress a statement hemade to a law-enforcement officer because, he says,the officer tricked him into making the statement. "'In reviewing the correctness of the trial court'sruling on a motion to suppress, this Court makes allthe reasonable inferences and credibility choicessupportive of the decision of the trial court.' "Kennedy v. State, 640 So.2d 22, 26(Ala.Crim.App.1993), quoting Bradlev v. State, 494So.2d 750, 760-61 (Ala.Crim.App.1985), affd, 494So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923,107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). The trialcourt's ruling on a motion to suppress will not bedisturbed unless it is palpably contrary to the greatweight of the evidence. See Dixon v. State, 588So.2d 903 (Ala.1991); Parker v. State, 587 So.2d1072, 1088 (Ala_Crim.App.1991); Rutledge v. State.680 So.2d 997, 1002 (Ala.Crim.App.1996); andMaples v. State, 758 So.2d I (Ala.Crim.App.1999),affd, 758 So.2d 81 (Ala.1999), cert. denied, 531U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000).

[4][5][6][7] Extrajudicial statements are primafacie involuntary and inadmissible; the duty restson the trial court to determine whether the statementis voluntary, and unless it appears that it isvoluntary it should not be admitted. See Farrior v.State, 728 So.2d 691 (Ala.Crirn.App.1998). Theburden is on the State to show voluntariness and aMiranda [FN2] predicate before such a statementcan be admitted into evidence. See Lewis v. State,535 So.2d 228 (Ala.Crim.App.1988). "Whether awaiver is voluntary, knowing, and intelligent


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depends on the particular facts and underlyingcircumstances of each case, including thebackground, experience, and conduct of theaccused--i.e., the totality of the circumstances."Click v. State, 695 So.2d 209, 218(Ala.Crim.App.1996). The voluntariness of aninculpatory statement remains undetermined untilthe trial court has examined the totality of thecircumstances surrounding the statement. See Erparse Hill. 557 So.2d 838, 841 (Ala.1989).

FN2. Miranda v. Arizona, 384 U.S. 436,86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

[8][9] The trial court's finding that a statement wasvoluntary need only be supported by apreponderance of the evidence. Dixon v. State,supra. The test for the voluntariness of anextrajudicial confession or an inculpatory statementis whether, in. light of all the surroundingcircumstances , the statement was free frominducement, threat, or promise, either expressed or*983 implied, that would have produced in the mindof the accused any fear of harm or hope of favor.Ex parte Price, 725 So.2d 1063 (Ala.1998), cert.denied, 526 U.S. 1133, 119 S.Ct. 1809, 143L.Ed.2d 1012 (1999).

Moreover, "more subtle forms of psychologicalmanipulation, such as trickery or deception by thepolice, have not been considered sufficientlycoercive, standing alone , to render a confession orincriminating statement involuntary." Ex parte Hill.557 Sold at 841.

The trial court submitted the following order onreturn to remand:

"On August 31, 2001, the Alabama Court ofCriminal Appeals remanded this case to the trialcourt to conduct proceedings consistent with theOpinion as written and released by the AlabamaSupreme Court on May 18, 2001. The AlabamaSupreme Court [had] remanded this case to theAlabama Court of Criminal Appeals with theinstructions to order the trial court to conduct ahearing to determine the admissibility ofDefendant Jackson' s extrajudicial statement. Thetrial court appointed the Honorable Bryan A.Stevenson to represent the defendant at thehearing, which was conducted on October 24,2001. At the hearing, the defendant was

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represented by Mr. Stevenson, as well as theHonorable Randall Susskind, both of the EqualJustice Initiative of Alabama. The State ofAlabama was represented by the HonorableSusan Redmond, Chief Deputy District Attorneyfor Montgomery County. After hearing thetestimony and accepting exhibits introduced intoevidence, this Court advised the parties that theywould have 7 days in which to present anyMemorandum of Law supporting their respectivepositions. Defense counsel submitted aMemorandum of Law on November 2, 2001, andthis Court has reviewed the same."The State of Alabama called its first and onlywitness, Detective A.J. Signore, of theMontgomery Police Department. DetectiveSignore testified that he had been employed withthe Montgomery Police Department for 10 years,and in 1997, had been a homicide investigator.Pursuant to this case, Detective Signore testifiedthat the defendant's mother signed a 'consent tosearch' her home wherein detectives confiscatedcertain items, including .380-caliber bullets. Thedetectives, before leaving the defendant'smother's home, told the mother that if thedefendant came home she was to notify [them]that the police would like to talk to him. Laterthat afternoon, the defendant went to policeheadquarters to talk to the detectives. At thehearing , Detective Signore testified that thedefendant, who was 18 years old at the time,reported to the police headquarters whereDetective Signore and his partner, Detective C.D.Phillips, were on duty. Detective Signoretestified that the defendant was read his Mirandarights, after which he signed the waiver formindicating that he understood his rights, that hehad not been promised anything or threatened inany way and that he wished to give a statement tothe police. The defendant's statement was takenin Detective Signore's office at the MontgomeryPolice Department with Detective Phillips alsopresent.*"Initially, the defendant denied even knowing thethree other codefendants that were involved in theshooting. Detective Signore testified at thehearing that he had statements from the 3codefendants stating that all 3 of them knew thedefendant and that the defendant had beeninvolved in the shooting. Detective *984 Signorestated that in order to get the defendant to tell thetruth about his relationship with the other 3codefendants, he told the defendant that a Dairy


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Queen [fast-food restaurant] cup had been foundin the vehicle with the defendant's fingerprints onit. After Detective Signore told the defendant thisinformation, the defendant then told DetectiveSignore that, in fact, he did know the othercodefendants, but denied any involvement in theshooting. After telling Detective Signore that heknew the other codefendants, he asked thedetective if he could make another statement. Inhis second statement, Defendant Jacksonadmitted to having been with the othercodefendants at the time of the murder and topossessing a.380 automatic pistol."The defense called Ms. Rosalyn Jordan as itsfirst witness. Ms. Jordan is a, sixth-grade teacherat Patterson Elementary School. She testified thatthe defendant had been a student in her classroomand her records indicated that he had failed thefirst and third grades. She stated that thedefendant was a low-achiever and that he was 13years old in the sixth-grade. She also stated thatshe had only seen the defendant a few times sincehe had been a sixth- grader in her class. Thedefense also called Ms . Thelma Owens, who is anemployee at the Southern Poverty Law Center.She is related to the defendant, as his aunt, andshe stated that she helped to raise him. She wenton to state that the defendant was very respectfulof her and any type of authority figures."There was absolutely no question that DetectiveSignore lied to the defendant about thefingerprints on the Dairy Queen cup. It isimportant to recognize, however, that the lie wastold by Detective Signore only in order to findout if the defendant did, in fact, have arelationship with the other codefendants. The liewas not told to induce the defendant to confess[to] a crime . Alabama Courts have repeatedlyheld that a confession is not inadmissible merelybecause it was induced by a trick ormisrepresentation. As defense counsel pointedout in its Memorandum of Law, although policedeception is not conclusive as to the voluntarinessof a statement, it is certainly a factor to beconsidered in the determination of itsvoluntariness. See Frazier v. Cupp, 394 U.S.731f, 89 S.Ct. 1420, 22 L.Ed.2d 684] (1969).This Court would again note, however, that thedeception used in this case was not deception thatled to a confession to the actual crime. Thedeception or misrepresentation used by DetectiveSignore was only used in order to establishwhether or not a relationship existed between the

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defendant and codefendants. After the statementwas made concerning 'the fingerprints on theDairy Queen cup, Defendant Jackson admittedonly to knowing the codefendants, but denied anyinvolvement in the actual crime."This Court must look at the totality of thecircumstances in analyzing whether or not thedefendant's extrajudicial statement was voluntaryor not. The Court is convinced, after conductingthe hearing, that the defendant did, in fact,voluntarily come to the police station and, afterbeing read his Miranda rights and signing hiswaiver, he agreed to talk to the detectives. Therewas no testimony and/or evidence presented thatwould indicate that the defendant could notknowingly and voluntarily waive his rights andagree to talk with the detectives. There was alsonothing unusual or extraordinary about the roomin which the statement was taken, or the mannerin which the statement was obtained. As JusticeStuart so ably stated *985 in her dissent [to theSupreme Court's opinion of May 18, 20011, thereis no question that Detective Signore mademisrepresentations concerning the fingerprintsfound on the Dairy Queen cup; however, whetheror not the misrepresentations render a statementinvoluntary is a question of law and does notrequire the gathering of additional facts in orderto make a decision. This trial court, however, hasconducted the hearing as ordered by the majorityand would point out that no new information orfacts were gleaned from this hearing and thiscourt finds that, after examining the totality of thecircumstances surrounding the statement of thedefendant, said statement was made voluntarilyand is therefore admissible.

FN" * Detective Signore's office in whichthe defendant's statement was taken is anormal detective office containing a deskand two chairs positioned facing the desk.Defense counsel went into very elaboratedetails about the office in its Memorandumof Law trying to show that the room wouldimply that the statement was not voluntary.

The Court - found nothing unusual,deceptive, or coercive about the room inwhich defendant' s statement was taken atMontgomery Police DepartmentHeadquarters."


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The trial court's findings are adequately supportedby the record. We have carefully reviewed therecord on return to remand to determine whetherJackson voluntarily and knowingly waived hisMiranda rights before making the inculpatorystatement to the police and whether the statementwas voluntary. After considering the totality of thecircumstances surrounding Jackson's statement, weconclude that the State met its burden in provingthat Jackson voluntarily and knowingly waived hisMiranda rights and that he made his statementvoluntarily. The record does not reveal thatJackson was threatened or coerced into giving astatement. The weight and preponderance of theevidence support the trial court's decision to denythe motion to suppress. Therefore, the trial court didnot err in denying the motion to suppress Jackson'sstatement.

II.

In his brief to this Court, Jackson raises severaladditional issues , which include subissues, forreview , all of which were argued in the Court ofCriminal Appeals and were thoroughly addressedby that court. We have carefully reviewed all theissues raised by Jackson and we will address thefollowing two issues, which were specificallyaddressed by Jackson's counsel at oral argumentbefore this Court:

1. Whether the trial court erred in granting theState's motion in limine , preventing him, Jacksonargues, from presenting motive evidence; and2. Whether the trial court erred in overriding theunanimous jury recommendation of lifeimprisonment without the possibility of paroleand sentencing Jackson to death.

A.

[10] Jackson contends that the trial court erred ingranting the State's motion in limine because, hesays, its doing so improperly prevented him frompresenting evidence that the motive for the murderwas retaliation for a drug deal that had gone "bad,"not robbery as the State alleged. He argues that bygranting the State's motion, the trial court prevented.him from testifying, from cross- examiningwitnesses, and from presenting mitigation evidence.

[11][12][13] A motion in limine is the propermethod by which to prohibit the introduction ofirrelevant evidence. Wiley v. State, 516 So.2d 812,

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814 (Ala.Crim.App.1986)T rev'd on other grounds,516 So.2d 816 (Ala.1987). The decision to grant ordeny such a motion rests within the sound discretionof the trial court and that decision *986 will not beoverturned on appeal absent an abuse of discretion.Id The test for relevancy is whether the evidence"bears any logical relationship to the ultimateinference for which it is offered." Aetna Life Ins.Co. v. Lavoie, 470 So.2d 1060, 1078 (Ala.1984);see also C. Gamble, McElroy's Alabama Evidence §21.01(1) (5th ed.1996); Garner v. State, 606 So.2d177 (Ala.Crim.App.1992).

The State filed a pretrial motion in liminerequesting that Jackson be prevented frompresenting evidence that the victim was involved indrug activity, because, it argued, such evidence wasimmaterial and irrelevant to the case. In response,Jackson argued that the victim's drug activity wentto the reason for the confrontation between Jackson,his codefendants, and the victim and that evidenceof that activity was, therefore, relevant. Afterholding a hearing on the motion, the trial courtgranted the State's motion. On the day of trial,Jackson's counsel asked the court to reconsider itsruling because Jackson might decide to testify. Thetrial court indicated that it would reconsider itsruling if Jackson decided to testify. [FN3) Jacksondid not testify, and his counsel did not raise theissue again and did not later ask the court toreconsider its ruling. Because the trial court statedthat it would reconsider its ruling, the ruling on themotion in limine was not a final order and the issuewas not preserved : for appeal. See Perry v.Brakefteld, 534 So.2d 602 (Ala.1988); Evans' V.Fruehauf Corp., 647 So.2d 718 (Ala.1994).Therefore, we review this issue under theplain-error rule. Rule 45A, Ala.R.App.P.

FN3. The following colloquy occurred:"[Defense counsel]: Judge, we would askthe Court to reconsider the ruling on themotion in limine and at least withholdruling until maybe the sentencing phase.Our client--we have not made a decision asto whether we are going to allow our clientto testify or not. His testimony, if he doestestify, will be diametrically opposed to thefacts--underlying facts as the districtattorney had presented them, which createsa conflict and a jury question. Histestimony deals with a drug deal. I don't


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want to be put in a situation where we can'task our client questions about what reallyhappened in this case. We would belimited, to have his testimony limited.THE COURT: Well, you know, that's the

first I have heard of that, for the record.It's not a criticism . It's just for the record.You know, I will--you know, if and whenyou decide whether or not your client isgoing to testify, I will let you ask me toreconsider it at that point."

Nothing in the record supports Jackson' s contentionthat the offense was the result of a drug deal gone"bad." The record indicates that the victim's wifeinformed the police that her husband was asmall-time dealer of crack cocaine. However,neither Jackson nor the codefendants mentioned adrug deal gone "bad" in their statements tolaw-enforcement officers after the offense. At thehearing, defense counsel stated that he wanted tocross-examine certain witnesses about the victim'sbeing a drug dealer to determine if those witnesseswould testify that the victim had been killed as theresult of a "bad" drug deal. Defense counsel merelyspeculated that there was a potential for suchtestimony; nothing in his proffer indicates thatevidence existed to support this theory. While thestatement of Gerard Burdette , a passenger in theautomobile with the victim at the time of themurder, did refer to "gang" activity, the statementdid not indicate that the murder was related to drugactivity. Nothing in the record, other than defensecounsel 's speculation, supports Jackson's theory thatthe killing was the result of a drug deal gone "bad."Speculation and conjecture do not establish relevantevidence of the existence of a viable defense.Therefore, we hold that the trial court's grant of theState's motion *987 in limine did not constituteerror, plain or otherwise.

B.

[14] Jackson contends that the trial court erred inoverriding the jury recommendation of lifeimprisonment without the possibility of parole,which was unanimous , and sentencing him to death.

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jury's sentencing recommendation.

Section 13A-5-47(b), Ala.Code 1975 , requires thatthe trial court order and receive a writtenpresentence-investigation report before itdetermines the sentence in a capital case . Section13A-5-47(b) further provides that thepresentence- investigation report and any evidencesubmitted in connection with it shall be made partof the record in the case.

"Rule 26.3(b), Ala. R.Crim. P., provides for whatcan be contained in such a presentence report.When a defendant has a significant juvenilerecord , his or her teenage difficulties will appearas part of the presentence report. However, underthe Alabama capital-sentencing scheme , juvenileadjudications are not convictions and cannot beconsidered as prior criminal activity. Freeman v.State, 555 So.2d 196, 212 (Ala.Crim.App. 1988),affil, 555 So.2d 215 (Ala.1989), cert. denied, 496U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d 284( 1990). Only convictions can negate the statutorymitigating circumstance of no significant historyof prior criminal activity. § 13A-5- 51(1),Ala.Code 1975; Freeman v. State, 651 So.2d576, 597-98 (Ala.Crim.App.1994)."

Ex parte Burgess, 811 So.2d 617, 623 (Ala.2000).

The record , specifically the sentencing order,reveals that the trial court found one statutorymitigating circumstance--that Jackson was. 18 yearsold at the time of the crime. § 13A-5-51(7),Ala.Code 1975. However , Jackson alleges . that the.,,trial court used his juvenile record. to negate thestatutory mitigating circumstance that he had nosignificant history of prior criminal activity.13A-5-51( 1). In fact , the trial court specifically.stated that Jackson 's juvenile record could not beconsidered in determining whether that statutorymitigating circumstance existed . However, thecourt noted that Jackson had a significant priorcriminal history : he had three felony convictions.Error, if any, by the trial court in consideringJackson's juvenile record was harmless . Er parteDavis . 718 So .2d 1166, 1178 (Ala.1998).Therefore, the trial court properly assessed theweight it was to assign that mitigating circumstancein light of Jackson ' s prior felony convictions.

2.

IFirst, Jackson contends that the trial court erred inconsidering his juvenile record in overriding the

Jackson contends that the trial court improperlyconsidered his physical characteristics in


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considering the statutory mitigating circumstance ofhis age at the time of the offense. See13A-5-51(7), Ala.Code 1975. Specifically, heargues that the trial court's reference to his heightand weight at the time of the crime was arbitraryand that it deprived him of a reliable sentencingdetermination.

In Ex parte Clisbv, 456 So.2d 105, 108-09(Ala.1984), cert. denied, 470 U.S. 1009, 105 S.Ct.1372, 84 L.Ed.2d 391 (1985), this Court stated:

"[T]he sentencing authority in Alabama, the trialjudge, has unlimited discretion to consider anyperceived mitigating circumstances , and he canassign appropriate weight to particular mitigatingcircumstances. The United States Constitutiondoes not require that specific *988 weights beassigned to different aggravating and mitigatingcircumstances. Murrv v. State, 455 So.2d 53(Ala.Crim.App.198[3] ), rev'd on other grounds,455 So.2d 72 (Ala.1984). Therefore, the trialjudge is free to consider each case individuallyand determine whether a particular aggravatingcircumstance outweighs the mitigatingcircumstances or vice versa. Moore v. Balkcom,716 F.2d 1511 (11th Cir. 1983). Thedetermination of whether the aggravatingcircumstances outweigh the mitigatingcircumstances is not a numerical one, but insteadinvolves the gravity of the aggravation ascompared to the mitigation."

[15] The record reflects that in weighing themitigating circumstance of Jackson 's age at the timeof the offense, the trial court noted Jackson's height,his weight, and his age at the time of the offense, aswell as the fact that Jackson was the father of a3-month-old child, that be had smoked marijuanasince he was 14 years old, that he consumed alcoholon a regular basis, and that he had an extensivecriminal record. The court also noted that Jacksonwas "a physically mature adult" at the time of theoffense. A trial judge can consider past behaviorand prior criminal activity in evaluating adefendant's maturity and in determining the weightto be given the mitigating circumstance of thedefendant's age . Cf. Ex parte Burgess, supra. Thedecision whether a particular mitigatingcircumstance is proven and the weight to be given itrests with the judge and the jury. See Carroll v.State, 599 So.2d 1253 (Ala.Crim.App.1992), affd,627 So.2d 874 (Ala.1993), cert. denied, 510 U.S.1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994).

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The trial court did not err in its assessment of theweight to assign the mitigating circumstance ofJackson's age at the time of the offense.

3.

Jackson further contends that the trial courtimproperly plagiarized the sentencing order fromShellito v. State, 701 So.2d 837, 843-44 (F1a.1997),cert. denied, 523 U.S. 1084, 118 S.Ct. 1537, 140L.Ed.2d 686 (1998). in its analysis of the mitigatingcircumstance of Jackson's age. Specifically,Jackson argues that the trial court used thesentencing order from Shellito as a"till-in-the-blank" form, thereby depriving him ofan individualized sentencing determination.

The record shows that in the sentencing order, thetrial court stated that Jackson's case was similar toShellito_ Upon review of Shellito and of the trialcourt's sentencing order, we conclude that the trialcourt adopted only the analysis used in She//ito. Inthis case, the trial court's assessment contains athorough analysis of the facts and the circumstancesinvolved in this case, thereby providing anindividualized sentencing determination. We findno error.

4.

Jackson contends that the trial court failed to make.an adequate determination of his culpability byfailing to determine whether he was the actualshooter in the murder.

In its sentencing order, the trial court stated "thereis evidence that [Jackson] was the shooter [and]there is evidence that suggests that [one of Jackson'scodefendants], not [Jackson] fired the shot thatkilled [the victim]." The record supports the court'sdetermination of Jackson's culpability. Therefore,Jackson's argument that the trial court failed todetermine his culpability is without merit.

5.

Finally, Jackson contends that the trial court'soverride of the jury's unanimous recommendation oflife imprisonment without *989 parole wasimproper, arbitrary, and unconstitutional, and that itwrongfully negated the role of the jury. He arguesthat - § 13A-5-47(e), Ala.Code 1975 [FN4]--Alabama's judicial override statute--is standardless,


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unlike override statutes in other states, and that itfails to give lower courts guidance in rejecting ajury's recommendation.

FN4. Section 13A-5-47(e), Ala.Code 1975, provides:"In deciding upon the sentence , the trialcourt shall determine whether theaggravating circumstances it finds to existoutweigh the mitigating circumstances itfinds to exist, and in doing so the trialcourt shall consider the recommendation ofthe jury contained in its advisory verdict,unless such a verdict had been waivedpursuant to Section 13A-5-46(a) or13A-5-46(g). While the jury'srecommendation concerning sentenceshall be given consideration, it is notbinding upon the court."(Emphasis added.)

This Court in Ex parte Apicella, 809 So.2d 865(Ala•200I ), upheld the constitutionality of having ajudge, not the jury, determine the punishment in acapital case . In Ea- parte Turlor, 808 So.2d 1215(Ala.2001), this Court held that thecapital-sentencing procedure set forth in §§13A-5-47 and 13A-5-53, Ala.Code 1975, providedsufficient guidance to prevent the arbitrary andcapricious imposition of a death sentence. [FN5]Specifically, the Court noted that thecapital-sentencing procedure "ensures that the trialjudge is given adequate information and sufficientguidance in deciding whether to accept or to reject ajury's recommended sentence" and that § 13A-5-53,Ala.Code 1975, provided sufficient guidelines foran appellate determination of "whether a trialjudge's override of the jury's recommendation isappropriate in a particular case ." 808 So.2d at 1219.

FN5. We cannot accept Jackson'sinvitation to engraft the rule propounded inTedder v. State, 322 So.2d 908, 910(Fla.1975)(stating that for a trial court toimpose a death sentence over a jury'srecommendation of life imprisonmentwithout parole, "the facts suggesting asentence of death should be so clear andconvincing that virtually no reasonableperson could differ"). Section 13A-5-47(e)

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provides an explicit statutory directivethat the jury's recommendation as to thesentence is "not binding upon the court."Adopting a rule like the one set forth inTedder would impermissibly rewrite thestatute, in violation of our constitutionalduty to observe the separation between thepowers conferred upon the judiciary andthose conferred upon the Legislature. § 43Constitution of Alabama of 1901.

We now turn to an analysis of the propriety of theoverride of the jury's recommendation of lifeimprisonment without parole in Jackson 's case.

[16] Section 13A -5-53, Ala.Code 1975 , provides,in pertinent part:

"(b) In determining whether death was the propersentence in the case the Alabama Court ofCriminal Appeals, subject to review by theAlabama Supreme Court, shall determine:"(1) Whether the sentence of death was imposedunder the influence of passion, prejudice, or anyother arbitrary factor;"(2) Whether an independent weighing of theaggravating and mitigating circumstances at theappellate level indicates that death was the propersentence; and"(3) Whether the sentence of death is excessive ordisproportionate to the penalty imposed in similarcases, considering both the crime and thedefendant."(c) The Court of Criminal Appeals shallexplicitly address each of the three questionsspecified in subsection (b) of this section in everycase it reviews in *990 which a sentence of deathhas been imposed."(d) After performing the review specified in thissection , the Alabama Court of Criminal Appeals,subject to review by the Alabama Supreme Court,shall be authorized to:."(1) Affirm the sentence of death;

"(3) In cases in which the death penalty isdeemed inappropriate under subdivision (b)(2) or(b)(3) of this section , set the sentence of deathaside and remand to the trial court with directionsthat the defendant be sentenced to lifeimprisonment without parole."

Thus , reinstatement of a jury recommendation oflife imprisomnent without parole is appropriate inthose circumstances where the trial court has


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836 So.2d 979(Cite as : 836 So .2d 979)

overridden the jury's recommendation based onbias, passion, or prejudice; where the weighing ofaggravating or mitigating circumstances isdefective; or where the sentence isdisproportionately severe under all of thecircumstances . See § 13A-5-53(b), Ala.Code 1975.

In this case, before determining the sentence, thetrial court considered all the available evidence;heard arguments on aggravating circumstances andmitigating circumstances; entered written findingsof fact summarizing the offense and Jackson'sparticipation in it; made specific written findingsconcerning the existence or nonexistence of eachaggravating circumstance enumerated in §13A-5-49, each mitigating circumstance enumeratedin § 13A- 5-51, and any additional mitigatingcircumstance offered pursuant to § 13A-5- 52;weighed the advisory verdict of the jury;considered and weighed thepresentence-investigation report; considered andindependently weighed the mitigating circumstancesand the aggravating circumstances; and statedspecific reasons for giving the jury'srecommendation the consideration it gave therecommendation, see Er parte Taylor. Afterfollowing this procedure, the trial court concludedthat the aggravating circumstances outweighed themitigating circumstance and imposed the deathpenalty, overriding the jury's recommendation.

We commend the trial court for its thoroughsentencing order and especially for its explanationfor its override of the jury. recommendation. Thetrial court found two statutory aggravatingcircumstances: (1) that the capital offense wascommitted while Jackson was engaged in a robberyor an attempted robbery, and (2) that the capitaloffense was committed by a person under sentenceof imprisonment. The trial court found onestatutory mitigating circumstance: that Jackson was18 years old at the time of the offense. It is evidentfrom the trial court's sentencing order that itindependently weighed the aggravatingcircumstances and the mitigating circumstance.Additionally, the trial court provided a detailedanalysis of its consideration of the jury'srecommendation of a sentence of life imprisonmentwithout the possibility of parole and the reasons itrejected that recommendation and sentencedJackson to death. There is no evidence in therecord before us indicating that bias, passion, orprejudice were factors in the trial court's imposing

the death sentence.

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We have independently weighed the aggravatingand mitigating circumstances to determine if deathis the appropriate sentence; we conclude, as did theCourt of Criminal Appeals, that the aggravatingcircumstances in this case outweighed themitigating circumstance. Furthermore, we agreewith the Court of Criminal Appeals that in this casethe punishment of death is not excessive ordisproportionate to the penalty imposed in similarcases. *991 Therefore, we hold that the impositionof the death sentence in this case was proper.

The judgment of the Court of Criminal Appeals isaffirmed.

OPINION OF FEBRUARY 15, 2002,WITHDRAWN ; OPINION SUBSTITUTED;APPLICATION FOR REHEARINGOVERRULED ; AFFIRMED.

MOORE, C.J., and HOUSTON, SEE, BROWN,HARWOOD, WOODALL, and STUART, JJ.,concur.

JOHNSTONE, J., concurs in part , concurs in theresult in part, and dissents in part as to the opinionand dissents from the denial of rehearing.

LYONS, J., concurs in part and dissents in part asto the rationale and dissents from the judgment anddissents from the denial of rehearing.

JOHNSTONE, Justice (concurring in part,concurring in the result in part, and dissenting inpart as to the opinion and dissenting from the denialof rehearing).

With one exception, I concur in the rationale of themain opinion on the issue of guilt or innocence.The exception is that I do not agree with the trialjudge's rationale, recited in the main opinion, for theconclusion that Detective Signore's lie did notrender the defendant's statement involuntary andtherefore inadmissible. That the statement was nota full confession but was, rather, only an admission


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836 So.2d 979(Cite as: 836 So.2d 979)

of inculpatory relationships is immaterial to theissue whether the statement was voluntary. I agree,however, with the conclusion that the lie in this casedid not constitute such a threat or such coercion aswould render the statement involuntary andinadmissible.

A caveat is appropriate on an aspect of the opinionof the Court of Criminal Appeals in this case,Jackson V. State, 836 So.2d 915(Ala.Crim.App.1999). In Part V of that opinion, theCourt of Criminal Appeals appears to hold that thefacts of this case would not support a juryinstruction on the lesserincluded offense ofrobbery. Had the defendant requested such a juryinstruction, it would have been due him. Theevidence supporting this theory, however, is not sostrong that the trial court committed plain error inomitting such an instruction in the. absence of arequest for one by the defendant.

I respectfully dissent from affirming the Court ofCriminal Appeals in its affirmance of the judgmentimposing the death penalty pursuant to the trialjudge 's override of the unanimous recommendationof life imprisonment without the possibility ofparole returned by the jury. I agree with JusticeLyons's special writing that the unanimousrecommendation of the jury for life imprisonmentshould be deemed a mitigating circumstance. Ifurther agree with Justice Lyons that the twoaggravating circumstances found in this case do notoutweigh the combined mitigating circumstances ofthe life recommendation, the uncertainties in theevidence that the defendant was the triggerman, andthe young age of the defendant.

In assigning no weight nor binding effect to alife-imprisonment recommendation by a jury,Alabama law reduces to a sham the role of the juryin sentencing and allows baseless , disparatesentencing of defendants in capital cases. The firstof these consequences of Alabama law is a denial ofdue process of law, and the second is both a denialof due process and a denial of equal protection.

Accordingly, while I agree with the adjudication ofthe defendant's guilt, I dissent from affinning theaffirmance of the death sentence . I would reversethe judgment of the Court of Criminal Appealsaffirming the death sentence and would remand thecause for the defendant to be *992 resentenced tolife imprisonment without the possibility of parole.

Page I I

I also dissent from the denial of rehearing in thiscase.

LYONS, Justice (concurring in part and dissentingin -part as to the rationale and dissenting from thejudgment and dissenting from the denial ofrehearing).

I concur in the main opinion's rejection ofJackson's contentions concerning the denial of hismotion to suppress, the denial of his motion inlimine, the trial court's consideration of his juvenilerecord and his physical characteristics, and thealleged plagiarism of a sentencing order fromanother case. However, because I would reinstatethe jury's unanimous recommendation of lifeimprisonment without parole, I must dissent fromthe portion of the main opinion that holdsotherwise. I also dissent from the denial ofrehearing.

The Judicial Article, Amendment No. 328,Alabama Constitution of 1901, confers upon ourappellate courts the responsibility for review of allcases , including those in which a sentence of deathhas been imposed. The Legislature has been morespecific. The Court of Criminal Appeals, subject toreview by this Court, is authorized by § 13A-5-53,Ala.Code 1975, to review the propriety of a deathsentence and, where appropriate, to "set thesentence of death aside and remand to the trial courtwith directions that the defendant be sentenced tolife imprisonment without parole." §13A-5-53(d)(3). Justice Maddox has previouslyacknowledged that our appellate courts "areespecially sensitive to their roles when there is ajury override." Er parse Tarver, 553 So.2d 633,635 (Ala.1989), cert. denied, 494 U.S. 1090, 110S.Ct. 1837, 108 L.Ed.2d 966 (1990) (Maddox, J.,concurring specially).

Jackson contends that he is denied due process bythe mechanism of the judicial override. Hiscontention should fail in view of the authority of theappellate courts of this State to considerindependently the jury recommendation againstdeath and to determine whether death is theappropriate penalty in a given case. It is our duty,upon proper application for certiorari review, toreinstate a jury recommendation against the deathpenalty where the trial court's override. is groundedin "passion, prejudice, or any other arbitrary


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factor"; or where there has been a defectiveweighing of the aggravating circumstances and themitigating circumstances ; or where the penalty isdisproportionately severe under all of thecircumstances. § 13A- 5-53(b).

The trial court is to be commended for itsexplanation of the reasons for its override of thejury's advisory verdict . A trial court is required bystatute to enter "specific written findings"concerning the existence or nonexistence of theaggravating circumstances and the mitigatingcircumstances . § 13A-5-47(d). To facilitate theappellate courts of this State in the discharge oftheir statutory duty to review - the propriety of asentence of death, we should require the trial courtto enter specific written findings concerning thepropriety of the decision to impose the deathpenalty over a jury's recommendation of a sentenceof life imprisonment without parole . In makingsuch a determination , the trial court should bemindful of the aforementioned criteria applicable toa determination at the appellate level as to thepropriety of the sentence of death ; namely , whetherthe sentence of death was imposed under theinfluence of passion , prejudice , or any otherarbitrary factor; whether an independent weighingof the aggravating circumstances and the mitigatingcircumstances at the appellate level would indicatethat death was the proper sentence ; and whether thesentence of death is excessive or disproportionate tothe penalty imposed in similar cases , . considering*993 both the crime and the defendant. See13A-5-53(b).

The trial court here aptly observed that it did nothave any guidance from this Court as to how itshould treat the jury's recommendation in theprocess of weighing the aggravating circumstancesand the mitigating circumstances . I believe thisCourt should offer additional guidance to the trialcourt as to the effect of a jury's recommendation ofa sentence of life imprisonment without parole. TheLegislature has provided specific aggravatingcircumstances at § 13A-5-49, preceded by thephrase, "Aggravating circumstances shall be thefollowing ." Such introductory language does notleave room for augmentation of the list throughjudicial decision -making . In contrast , the legislativecatalog of mitigating circumstances is preceded bythe phrase , "Mitigating circumstances shall include,but not be limited to. the following ." § 13A-5-51(emphasis added ). So as to guide the trial court in

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determining the effect of,a jury's recommendationof life imprisonment without parole, this Courtshould hold that such a recommendation is to betreated as a mitigating circumstance. The weight tobe given that mitigating circumstance shoulddepend upon the strength of the factual basis for therecommendation based upon information known tothe jury--such as conflicting evidence concerningthe identity of the "triggerman" or arecommendation made by the victim's family forleniency--subject to the jury's recommendationbeing undermined based upon information knownonly to the trial court and not to the jury.

Pursuant to § 13A-5-53(b), Ala.Code 1975, wemust weigh the aggravating circumstances and themitigating circumstances in this case to determine ifdeath is the appropriate sentence. Burdette, apassenger in the victim's vehicle, stated that he sawa long black ".38 or maybe .357" when Jackson andhis codefendants began shooting at the victim andBurdette. Both Burdette and the medical examinerexpressed the opinion that the person with the .38pistol or the .357 handgun tired the bullet that killedthe victim. That person would have been Barnes,since Barnes and Rudolph both stated that Barneswas the person who was armed with a .357 handgunat the time of the shooting. Based on this evidence,the jury could have believed that Barnes, notJackson, fired the fatal shot, giving the jury a basisfor its recommendation of a sentence of lifeimprisonment without parole.

The trial court found two statutory aggravatingcircumstances: (1) that the capital offense wascommitted while Jackson was engaged in a robberyor an attempted robbery, and (2) that the capitaloffense was committed by a person under asentence of imprisonment. The trial court foundone statutory mitigating circumstance: that Jacksonwas 18 years old at the time of the crime. It isevident by the trial court's sentencing order that itweighed the aggravating circumstances and themitigating circumstance. However, in a close caselike this one, where the evidence suggests apossibility that Jackson might not have fired thefatal shot, treating the jury's recommendation of lifeimprisonment without parole as a mitigatingcircumstance changes the overall balance of theweighing process.

Independently weighing the aggravatingcircumstances and the mitigating circumstances and


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treating the jury's recommendation as a mitigatingCircumstance , I would conclude that the trial court'soverride of the jury 's recommended sentence and itsconsequent imposition of the sentence of death wereimproper under the circumstances of this case. SeeAla.Code 1975, § 13A-5-53(a) and (b). GivenJackson's age at the time of the offense and the factthat the evidence pointed to a codefendant *994- asthe "triggerman ," the jury's unanimousrecommendation of a sentence of life imprisonmentwithout parole tips the scales - in favor of followingthe jury's recommendation and in sentencingJackson to life imprisonment without parole.

In this way , we can abide by the . Legislature'scommand that a jury recommendation is not binding(y 13A-5-47(e)); at the same time, I do notunderstand the Legislature to have commanded thatthe jury recommendation be given no weightwhatsoever. We therefore can give the jury'srecommendation some weight in the sentencingprocess as a mitigating circumstance . I do notsuggest that a trial court can never override a jury'srecommendation of a life-imprisonment sentence,but in order to do so , the aggravating circumstancesmust be sufficiently egregious to support a sentenceof death in light of all mitigating circumstances,including a jury's recommendation of lifeimprisonment without parole. T'herefore, Irespectfully dissent from the judgment.

836 So.2d 979

END OF DOCUMENT


I-.*_.) /._ . - - .,

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IN THE ALABAMA COURT OF CRIMINAL APPEALS

NO.

EX PARTE STATE OF ALABAMA.

IN RE:


PETITIONER,

vs.

STATE OF ALABAMA,

RESPONDENT.

EXHIBITSFOR THE


TO THE HONORABLE TRACY S . MCCOOEY , CIRCUIT JUDGE,FIFTEENTH JUDICIAL CIRCUIT

Volume II of II

TROY KING

Attorney General

And

James 'R. Bouts


Jeremy McIntire

ASSISTANT ATTORNEY GENERAL

1 OFFICE OF THE ATTORNEY GENERAL

CAPITAL LITIGATION DIVISIONALABAMA STATE HOUSE11 SOUTH UNION STREET

MONTGOMERY, ALABAMA 36130

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IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA,

SHONELLE ANDRE JACKSON, )

Petitioner,

v. ) Case No: CC-97 -2300.50

STATE OF ALABAMA,

Respondent.

STATE ' S MOTION FOR SUMMARY DISMISSAL OF THE CLAIMS INJACKSON ' S AMENDED RULE 32 PETITION THAT ARE PROCEDURALLY

BARRED FROM REVIEW PURSUANT TO RULE 32.2(a ) OF THE ALABAMARULES OF CRIMINAL PROCEDURE.

Comes now the State of Alabama, the Respondent in the

above-styled cause, and moves this Honorable Court to

dismiss those claims in Jackson's amended Rule 32 petition

that are procedurally barred. In support of this motion,

the State of Alabama submits the following:

1. Rule 32.2(a) of the Alabama Rules of Criminal

Procedure provides, in relevant part, as follows:

A petitioner will not be given relief under this Rulebased upon any ground:

(2) which was raised or addressed at trial; or

(3) which could have been but was not raised attrial . . .; or

(4) which was raised or addressed on appealor

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(5) which could have been but was not raised onappeal . . . .

2. "Alabama has never recognized any exceptions to

the procedural default grounds contained in Rule 32,

Ala.R.Crim.P. [Moreover, the appellate courts] have

repeatedly stated that the procedural bars in Rule 32 apply

equally to all cases, including those in which the death

penalty has been imposed." Hooks v. State, CR-99-2212,

2000 WL 1496807, at *4 (Ala. Crim. App. Oct 6, 2000); see

also, e.g., State v. Burton, 629 So. 2d 14, 20 (Ala. Crim.

App. 1993), cert. denied, 114 S. Ct. 1664 (1994). The

procedural bars apply to Jackson's Rule 32 petition.

3. Listed below are the claims raised in the Rule 32

petition which are procedurally barred, and the specific

citation to Rule 32.2(a), which bars consideration of each

claim.



Insufficient Funds Provided For Court-Appointed

Attorneys In Capital Cases. Ala. R . Crim. P. 32.2(a)(3)and (5 ). (Paragraphs 12-16)1

Ground II : THE CLAIM THAT JUROR MISCONDUCT DURING THE

TRIAL DEPRIVED JACKSON OF HIS RIGHTS TO A FAIRTRIAL , DUE PROCESS , AND A RELIABLE SENTENCE

'This claim is unnumbered in Jackson's amended rule 32petition.

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DETERMINATION. Ala. R. Crim. P. 32.2(a)(3)and (5). (paragraphs 151-163)

Ground III: THE CLAIM THAT THE STATE WITHHELD FAVORABLE

EVIDENCE FOR THE DEFENSE THUS VIOLATINGJACKSON ' S FEDERAL AND STATE RIGHTS . Ala. R.Crim. P. 32.2(a)(3) and (5). (paragraphs 164-168)

Ground V:

Ground VI:

THE CLAIM THAT THE DEATH SENTENCE IN THIS CASEIS DISPROPORTIONATE IN VIOLATION OF JACKSON'S

STATE AND FEDERAL RIGHTS. Ala. R. Crim. P.

32.2.(a) (3) and (4). (paragraphs 175-177)

THE CLAIM THAT THE TRIAL COURT COMMITTED

REVERSIBLE ERROR BY FAILING TO INSTRUCT THEJURY ON THE LESSER INCLUDED OFFENSE OF ROBBERY.

Ala. R. Cram. P. 32.2(a)(3) and (4).(paragraphs 178-181)

Ground VII: THE CLAIM THAT THE TRIAL COURT COMMITTED

REVERSIBLE ERROR BY DENYING JACKSON A

CONTINUANCE TO SECURE A CRITICAL WITNESS. Ala.

R. Crim. P. 32.2(a)(2) and (4). (paragraphs182-185)

Ground VIII: THE CLAIM THAT THE TRIAL COURT IMPROPERLY LEFT

THE COURTROOM WHILE THE JURY WATCHED JACKSON'S

VIDEOTAPED STATEMENT. Ala. R. Cram. P.

32.2(a)(3) and (4). (paragraphs 186-187)

Ground IX(A): THE CLAIM THAT THE STATE IMPROPERLY OBTAINED

JACKSON'S CONVICTION BY UNCORROBORATEDACCOMPLICE TESTIMONY . Ala. R. Cram. P.32.2(a)(2) and (4). (paragraphs 188-191)

Ground IX(B): THE CLAIM THAT THE TRIAL COURT ERRED IN

FAILING TO INSTRUCT THE JURY ABOUT THE

ACCOMPLICE CORROBORATION REQUIREMENT. Ala. R.

Crim. P. 32.2(a)(3) and (4). (paragraph 188-191)

Ground X: THE CLAIM THAT THE STATE 'S USE OF ITSPEREMPTORY CHALLENGES DISCRIMINATED ON THE

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BASIS OF RACE AND GENDER . Ala. R . Crim. P.32.2(a ) ( 2) , (3) and ( 4). (paragraphs 192-194)

Ground XI : THE CLAIM THAT THE TRIAL COURT ' S REASONABLE

DOUBT INSTRUCTION WAS UNCONSTITUTIONAL. Ala.

R. Crim . P. 32.2(a)(3) and ( 4). (paragraphs195-198)

Ground XII : THE CLAIM THAT THE TRIAL COURT IMPROPERLY

ADMITTED PHOTOGRAPHS THAT SERVED ONLY TO

INFLAME AND PREJUDICE THE JURY . Ala. R. Crim.P. 32.2 (a)(3) and ( 4). (paragraphs 199-200)

Ground XIII : THE CLAIM THAT THE TRIAL COURT IMPROPERLY

GRANTED THE STATE'S CHALLENGES OF JURORS FOR

CAUSE . Ala. R . Crim . P. 32.2(a)(3) and (4).(paragraphs 201-203)

Ground XIV:

Ground XV:

THE CLAIM THAT THE TRIAL COURT IMPROPERLY

ADMITTED EVIDENCE THAT DID NOT HAVE A PROPER

CHAIN OF CUSTODY . Ala. R . Crim . P. 32.2(a)(2)and (4 ). (paragraph 204)

THE CLAIM THAT THERE WAS INSUFFICIENT EVIDENCE

TO CONVICT JACKSON OF CAPITAL MURDER. Ala. R.

Crim. P. 32.2(a)(3) and (4). (paragraphs 205-206)

Ground XVI : THE CLAIM THAT DOUBLE COUNTING ROBBERY AS AN

ELEMENT OF THE CAPITAL OFFENSE AND AS AN

AGGRAVATING CIRCUMSTANCE WAS IMPROPER. Ala.R. Crim . P. 32.2 (a)(3) and ( 4). (paragraphs207-209)

Ground XVII : THE CLAIM THAT ALABAMA ' S MANNER OF

EXECUTION CONSTITUTES CRUEL AND UNUSUAL

PUNISHMENT . Ala. R . Crim . P. 32.2(a)(3)and (4). (paragraph 210-211)

Ground XVIII: THE CLAIM THAT THE CUMULATIVE EFFECT OF ALL OFTHE ABOVE ERRORS ENTITLE JACKSON TO RELIEF.Ala. R . Crim . P. 32.2(a)(3) and (4),

(paragraph 212)

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4. Rule 32.7(d) of the Alabama Rules of Criminal

Procedure provides, in relevant part, as follows:

If the court determines that the petition . .. is precluded or fails to state a claim, orthat no material issue of fact or law existswhich would entitle the petitioner to reliefunder this rule and that no purpose would beserved by any further proceedings, the courtmay either dismiss the petition or grant leaveto file an amended petition.

The State, therefore, respectfully requests that this

Honorable Court dismiss the above-cited claims in Jackson's

amended Rule 32 petition based on the rules of preclusion

contained in Rule 32.2(a) of the Alabama Rules of Criminal

Procedure.


Assistant Attorney General

ere!ny McIntire

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CERTIFICATE of SERVICE

I hereby certify that on this a$ day 6f May, 2004, I

did serve a copy of the foregoing on the attorneys for the

Petitioner, by placing the same in the United States Mail,

first class, postage prepaid and addressed as follows:

Bryan A. StevensonAngela L. Satzer

Equal Justice Initiative of Alabama122 Commerce Street

Montgomery, Al 36104

1Jeremy R. McIntireAssistant Attorney General

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ADDRESS OF COUNSEL:

Office of the Attorney GeneralCapital Litigation DivisionAlabama State House

11 South Union StreetMontgomery, AL 36130-0152(334) 353-4014

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IN THE CIRCUIT COURT OF MONTGOMERY COUNTY , AI MAMA


Petitioner,

V. ) Case No: CC-97-2300.60

STATE OF ALABAMA,

Respondent.

STATE'S MOTION. FOR SUMMARY DISMISSAL OF THOSE CLAIMS INJACKSON ' S AMENDED RULE 32 PETITION THAT ARE INSUFFICIENTLYPLEADED UNDER RULES 32.3 AND 32.6(b ) OF THE ALABAMA RULES

OF CRIMINAL PROCEDURE

Comes now the State of Alabama, the Respondent in the

above-styled cause, and moves this Honorable Court to

summarily dismiss those claims in Jackson's amended Rule 32

petition that fail to meet the requirements of Alabama

Rules of Criminal Procedure 32.3 and 32.6(b). In support

of this motion, the State of Alabama submits the following:

1. Rule 32.3 of the Alabama Rules of Criminal

Procedure provides, in relevant part, that "[t]he

petitioner shall have the burden of pleading and proving by

a preponderance of the evidence the facts necessary to

entitle the petitioner to relief." Ala. R. Crim. P. 32.3

(emphasis added).

2. Rule 32.6(b) of the Alabama Rules of Criminal

Procedure provides:

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The petition must contain a clear and specificstatement of the grounds upon which relief issought, including full disclosure of the'factualbasis of those grounds. A bare allegation that aconstitutional right has been violated and mereconclusions of law shall not be sufficient towarrant any further proceedings.

Ala. R. Crim. P. 32.6(b)

3. Listed below are the claims raised in Jackson's

amended Rule 32.petition that are subject to summary

dismissal for failure to meet the pleading requirements of

Alabama Rules of Criminal Procedure 32.3 and 32.6(b):



Insufficient Funds Provided For Court-Appointed

Attorneys In Capital Cases . (Paragraphs 12-16) Ala. R.Crim. P. 32. 2 and 32.6 (b) . 1

This claim is due to be dismissed for failing to meet

the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P.

Jackson does not fully disclose the factual basis of his

claim that he was denied effective assistance of counsel.

Jackson fails to specify how a lack of funding prohibited

counsel from being effective or what information could have

been presented if counsel had been adequately funded. His

pleading does not include any facts which, if presented by

trial counsel, would have resulted in a different finding

'This claim is unnumbered in Jackson's amended petition.

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by the trial court. Under Rule 32.7 ( d), Ala.R.Crim.P.,

this claim of ineffective assistance of counsel that is not

sufficiently pleaded is due to be dismissed . (" If the


specific , or is precluded , or fails to state a claim, or

that no material issue of fact or law exists which would

entitle the petitioner to relief under this rule and that

no purpose would be served by any further proceedings, the

court may either dismiss the petition or grant leave to

file an.amended petition").

Ground I (A) (2) (c ) : The claim that trial counsel was


assistance of an investigator and/orsocial worker . (Paragraph 35) Ala. R.Crim . P. 32.2 and 32.6(b).

Jackson fails to state how he was prejudiced by trial

counsel's failure to procure an investigator and/or social

worker. Jackson has not provided any information that

would show that the outcome of the trial would have been

different had trial counsel procured any such experts.

Jackson fails to identify any evidence or information that

would have been discovered that would have changed the

outcome of the trial. As such, Jackson's claim fails to

comply with the specificity and full factual pleading

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.Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v. State,

2003 WL 1949823, *3 (Ala. Crim. App. 2003)("Although

Bracknell specifically identified the acts or omissions on

the part of his trial counsel that he believed constituted

deficient performance, he failed to include in his petition

any facts tending to indicate how those acts or omissions

prejudiced his defense.").

Ground I (A) (2) (d ) : The claim that trial counsel was


assistance of a mental health expert.(Paragraph 36-38 ) Ala. R . Crim . P. 32.2and 32.6(b).


counsel's failure to procure a mental health worker. His

pleading does not include any facts, which a mental health

expert would have uncovered that, if presented by trial

counsel, would have resulted in a different outcome during

the guilt phase. Nor does Jackson specifically identify

any mental impairments he allegedly suffers from. Under

Rule 32.7(d), Ala.R.Crim.P., any claim of ineffective

assistance of counsel that is not sufficiently pleaded is

due to be dismissed. ("If the court determines that the

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petition is not sufficiently specific, or is precluded, or

fails to state a claim, or that no material i'ssue of fact

or law exists which would entitle the petitioner to relief

under this rule and that no purpose would be served by any

further proceedings, the court may either dismiss the

petition or grant leave to file an amended petition").

Jackson's claim fails to comply with the specificity and

full factual pleading requirements of Rule 32.6(b), 32.3,

Ala. R. Crim. P.; therefore, it is due to be summarily

dismissed by the Court. Ala. R. Crim. P. 32.7(d).

Ground I (A) (2) (e) : The claim that trial counsel was


assistance of an expert on drug andalcohol abuse . (Paragraph 29) Ala. R.

Crim. P. 32.2 and 32.6(b).

Jackson has failed to allege any facts in support of

this claim in his petition, nor has he demonstrated or

indicated how he was prejudiced by trial counsel's failure

to procure a drug and alcohol expert. As such, Jackson's

claim fails to comply with the specificity and full factual

pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim.

P.; therefore, it is due to be summarily dismissed by the

Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v. State,

2003 WL. 1949823, *3 (Ala. Crim.. App. 2003) ("Although

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any facts tending to indicate how those acts or.omissions

prejudiced his defense."). Under Rule 32.7(d),

Ala.R.Crim.P., any claim of ineffective assistance of

counsel that is not sufficiently pleaded is due to be

dismissed. ("If the court determines that the petition is

not sufficiently specific, or is precluded, or fails to


exists which would entitle the petitioner to relief under

this rule and that no purpose would be served by any




full factual pleading-requirements of Rule 32.6(b), 32.3,



Ground I (A) (3) (b) : The claim that trial counsel was

ineffective for failing to challengeJackson ' s underlying convictions.(Paragraph 41) Ala . R. Crim. P. 32.3and 32.6(b).

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Jackson does not disclose the factual basis of his

claim that he was denied effective assistance of counsel

because trial counsel failed to challenge his underlying

convictions. Jackson does not explain why guilty pleas to

the underlying convictions were not voluntary. ("If the


specific, or is.precluded, or fails to state a claim, or





file an amended petition"). Jackson's claim fails to




Court. Ala. R. Crim. P. 32.7(d).

Ground I(A)(3)(e): The claim that trial counsel was

ineffective for failing to removecertain jurors and for failing to securea jury expert. (Paragraphs 46-47) Ala.R. Crim . P. 32.3 and 32.6(b).


claim. Jackson does not identify any jurors that trial

counsel should have removed nor does Jackson explain how a

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jury expert would have assisted in voir dire. ("If the


specific, or is precluded, or fails to state a claim, or





file an amended petition"). Jackson's claim fails to




Court. Ala. R. Crim. P. 32.7(d).

Ground I (A) (3) (h ) : The claim that trial counsel was


investigate and cross -examine certainwitnesses . (Paragraphs 52-55) Ala. R.Crim . P. 32.3 and 32.6(b).


claim. Jackson does not identify testimony, evidence, or

questions that trial counsel should have elicited in their

investigation or on cross-examination. Instead, Jackson

only makes bare allegations that trial counsel's

investigation and cross-examination of witnesses was

insufficient. ("If the court.determines that the petition

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is not sufficiently specific, or is precluded, or fails to


exists which would entitle the petitioner to relief under

this rule and that no purpose would be served by any







Ground I (A) (3) (o) : The claim that trial counsel was

ineffective for failing to ensure a

complete record . (Paragraph 65) Ala. R.Crim. P . 32.3 and 32.6(b).

This claim is due to be dismissed for failing to meet

the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P.


counsel's failure to ensure a complete record. As a

result, Jackson has not provided any information that would

show that the outcome of the trial would have been

different had trial counsel ensured a complete record

such, Jackson's claim fails to comply with the specificity



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32.7(d). See, Bracknell v. State, 2003 WL 1949823, *3 (Ala.

Crim. App. 2003)("Although Bracknell specifically

identified the acts or omissions on the part of,his trial

counsel that he believed constituted deficient performance,

he failed to include in his petition any facts tending to


defense.").

Ground I(B)(3): The Claim That Counsel Was Ineffective

For Failing To Obtain And Present

Independent Expert Testimony At The

Penalty And Sentencing Phases.(Paragraphs 140-146 ) Ala. R . Cram. P.32.3 and 32.6(b).

Jackson fails to specify what information should have

been presented by "expert" witnesses. Jackson has not

provided any information that would show that the outcome

of the trial would have been different had trial counsel

procured any such experts. Jackson fails to identify any

evidence or information that would have been discovered

that would have changed the outcome of the trial. As such,





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Ground III: THE CLAIM THAT THE STATE WITHHELDFAVORABLE EVIDENCE FOR THE DEFENSE THUSE

VIOLATING JACKSON'S FEDERAL' AND STATERIGHTS . (Paragraphs 164-168) Ala. R.

Crim. P. 32.3 and 32.6(b).

The Brady allegations are due to be dismissed as

insufficiently plead. Jackson states that "evidence

introduced at trial and in the records that Mr. Jackson has

received strongly indicates that additional discoverable

material exists". (Jackson's Amnd. Pet. at 65) Far from

actually asserting that such violations took place, Jackson

has only alleged that they may exist. Furthermore, Jackson

has not specifically explained how any of the evidence

allegedly withheld from the defense was either favorable or

exculpatory to his defense. For example, Jackson alleges

that a witness drew a diagram of the crime scene and that

it was not disclosed to the defense. However, Jackson does

not explain in the petition how this diagram is either

favorable or exculpatory. Another example involves

Jackson's claim that law enforcement impounded both the

cars involved in the murder. Jackson argues that testing

Lay have been done on the vehicles which was never

disclosed to the defense. Again, Jackson fails to explain

how or why such testing, if it even exists, is favorable or

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exculpatory. All of Jackson's Brady claims lack any

statement as to why the allegedly suppressed evidence is

either favorable, exculpatory, or even discoverable.

As such, Jackson's claim fails to comply with the

specificity and full factual pleading requirements of Rule

32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be


32.7(d). Ala. R. Crim. P. 32.7(d). See, Bracknell v. State,

2003 WL 1949823, *3 (Ala. Crim. App. 2003)("Although




any facts tending to indicate how those acts or omissions

prejudiced his defense.").

CONCLUSION

4. Rule 32.7(d) of the Alabama Rules of Criminal

Procedure provides that claims that fail to meet the burden

of pleading may be dismissed without an evidentiary

hearing. Ala. R. Crim. P. 32.7(d). Specifically, Rule

32.7(d) states, in relevant part, the following:

If the court determines that the petitionis not sufficiently specific, or isprecluded, or fails to state a claim, orthat no material issue of fact or law

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exists which would entitle the petitionerto relief under this rule and that nopurpose would be served by any furtherproceedings, the court may either dismissthe petition or grant leave to file anamended petition.

Ala. R. Crim. P. 32.7(d) (emphasis added). Thus, where the

petitioner, as here, fails to plead a claim sufficiently,

the circuit court may dismiss such claim without an

evidentiary hearing. Fincher v. State, 724 So. 2d 87, 89


5. The State, therefore, respectfully requests that

this Court summarily dismiss those claims in Jackson's

amended Rule 32 petition that fail to meet the

requirements of Alabama Rules of Criminal Procedure

32.3 and 32.6(b).2


erem! McIntireAssistant Attorney General

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2Any failure by the State to include a claim(s) subject todismissal under Ala. R. Crim. P. 32.3 and 32.6(b) is notmeant as a waiver of that ground.

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