In Re Shonelle Andre Jackson v State of Alabama CR04-0096 Supreme Court AL - 2004.10.20 Petition for Writ of Mandamus 1 of 3 - 400pp

IN THE ALABAMA COURT OF CRIMINAL AP]

NO. 00/7EX PARTE STATE OF ALABAMA.

IN RE:

SHONELLE ANDRE JACKSON,

PETITIONER,

VS .

STATE OF ALABAMA,

RESPONDENT.

FILED

OCT 2 0 2004

ALA COURT C 1ACLERK APPEALS

PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE TRACY S. MCCOOEY, CIRCUIT JUDGE,

FIFTEENTH JUDICIAL CIRCUIT

TROY KING

Attorney General

And

James R. Bouts

ASSITANT ATTORNEY GENERAL

Jeremy McIntire

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

CAPITAL LITIGATION DIVISION

ALABAMA STATE HOUSE

11 SOUTH UNION STREET

MONTGOMERY , ALABAMA 36130

(334) 242-7408

IN THE ALABAMA COURT OF CRIMINAL APPEALS

NO.

EX PARTE STATE OF ALABAMA.

IN RE:


PETITIONER,

vs.

STATE OF ALABAMA,

RESPONDENT.




TROY KINGAttorney General

And

James R. Routs


Jeremy McIntire




ALABAMA STATE HOUSE


MONTGOMERY, ALABAMA 36130

(334) 242-7408

11 TABLE OF CONTENTS

TABLE OF CONTENTS ....................................

INDEX TO EXHIBITS .................................. iii

' TABLE OF AUTHORITIES ................................ IV

PETITION FOR WRIT OF MANDAMUS ........................ 1

' F THESTATEMENT OF FACTS NECESSARY TO AN UNDERSTANDING OISSUE PRESENTED ....................................... 1

STATEMENT OF THE ISSUE . . . . . . . ............ • • .......... 2

Did the trial court err in granting Jackson'sdiscovery 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 Granting'Jackson's Discovery Requests Without FirstDetermining That "Good Cause" Existed As Required

By Land And Mack . . . . . . . . . . . . . . . . 4

A.The Trial Court Abused Its Discretion ByAllowing Discovery On Jackson's Brady Claim .. 6

B.The Trial Court Abused Its Discretion By

Allowing Jackson Access To The Criminal, Mental

Health, And Correctional Records Of All State

Witnesses ...................................... 11

C.The Trial Court Abused Its Discretion By

Allowing Jackson Access To Juror Questionnaires

And Other Documents Relating To The Jury AndThe Jury Selection Process In Montgomery

County . ..................................... 14

_^ i

D.The Trial Court Abused Its Discretion ByAllowing 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 To

Himself And His Co -Defendants . .............. 17

F.The Trial Court Abused Its Discretion ByAllowing Jackson Access To Any And All CriminalAnd Correctional Records Of His Father, LouisWendell Taylor . ............................. 19

II. This Court Is Due To Adopt Procedural

Safeguards For The Rule 32 Discovery ProcessThat Will Protect Nonparties To The Litigation.

. . . . . . . .. . . . . . . . . . . . . . . 21

CONCLUSION .......................................... 30

CERTIFICATE OF SERVICE ...... 31

ii

INDEX TO EXHIBITS

EXHIBIT A Jackson' s Amended Rule 32 Petition

EXHIBIT B State's Answer to Jackson's Amended Rule

32 Petition

EXHIBIT C State's Motion to Dismiss Procedurally

Barred Claims

EXHIBIT D State's Motion to Dismiss Insufficiently

Plead Claims

EXHIBIT E State's Motion to Dismiss Claims Pursuant

to Rule 32.7(d)

EXHIBIT F Jackson's Motion for Discovery ofInstitutional Records, Files, andInformation Necessary to a Fair Rule 32

Evidentiary Hearing

EXHIBIT G Jackson's Motion for Discovery ofProsecution Files, Records, and

Information Necessary to a Fair Rule 32

Evidentiary Hearing

EXHIBIT H State' s Response to 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 Jackson's Motion for

Discovery of Prosecution Files, Records,

and Information Necessary to a Fair Rule

32 Evidentiary Hearing

EXHIBIT J Jackson' s Response to the State's

Opposition to his Discovery Requests

EXHIBIT K Transcript of the October 13, 2004Hearing Held On the Parties Motions

EXHIBIT L Court's Order Of October 13, 2004

iii

1

Cases

TABLE OF AUTHORITIES

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 parte 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 47Io ...... 15, 18, 29

I Ex arte State (In re: Hooks . v. • State), 822 So. 2d 476

(Ala. Crim. App. 2000)

Ex parte State of Alabama (Hooks ), CR-99 -2212, 2000

WL 1496807 (Ala. Crim. App. Oct . 6, 2000 ) .......... 3

' Ex parte Western Mental Health Center, 2003 WL

23025579 (Ala. 2003 ) .......................... 13, 27

Head v. Stripling , 590 S . E.2d 122(Ga. 2003 ) ......... 23

I Hill v. State, 651 So. 2d 1128 .......................(Ala. Crim. App. 1994) . 23

Jackson v. State, 836 So. 2d 915

(Ala. Crim. App. 1999) ............................ 16

McGowan v. State, 2003 WL 22928607, at *24

(Ala. Crim. App. 2003) ............................ 13

' Payne v . State, 79 1 So. 2d 383,

(Ala. Crim. App. 1999) ............................ 12

I

People ex rel Dale y v. Fitzgerald, 526 N.E.2d 131(Ill. 1988) .......................................... 6

People ex rel Dale y, 526 N.E.2d at 135 .............. 20

I iv

Peo le v. Johnson, 2002 WL 592153, at *14(Ill. 2002) ........................................ 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 Aia.R . Crim.P . .... ............................ 1

Rule 32.2, Aia.R.Crim.P . ............................. 8

Rule 45(c) of the Alabama Rules of Civil Procedure .. 28

V


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

2) Motion for Discovery of Institutional Records,

Files, and Information Necessary to a Fair Rule 32

Evidentiary Hearing.

1

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

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'sdiscovery 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

2

(Ala. 2000), and Ex parte Mack , 2003 WL 1950008 (Ala. 2003)

that require that the petitioner first demonstrate "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

I 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

i 1 3

corpus matters, and post-conviction writs in criminal

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,

I. The Trial Court Abused Its Discretion By Granting

Jackson's Discovery Requests Without First Determining

That "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.' 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 parte 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.

' 1 N.b. The circuit court invited the State to file the instant petition forwrit of mandamus to clarify this issue.

11

4

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 not

provide a petitioner with a right to "fish"through official files and that it "is not a

device for investigating possible claims, but a

means 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:

"`the issues presented in the petition, the scope of the

5

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(111. 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

1 1

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'spl-

order granted Jackson' s request for access to any case

2 Due to the page constraints of petitions for writ of mandamus, the State is

unable to discuss every item of discovery that the trial court erred in

granting. The State has discussed the most flagrant examples of the trial

court's abuse of its discretion in granting discovery. If, however, this

Court finds that the trial court did, in fact, grant blanket discovery

without undertaking the required "good cause" analysis - as shown in the

State's argument below - then this Court would have an obligation to vacate

the entire order with instructions for the trial court to reconsider the

issues under the correct analysis and use the appropriate principles.

i 1 6

El1 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 to

defense counsel the evidence of - among otherthings - deals or agreements that had been

entered 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 court

abused 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 the

case. It appears that this motion is merely a `fishing expedition."').

4 Jackson also alleges seven other Brady violations in the same conclusorymanner without any underlying factual basis. (Exhibit A at 66-67, 4 167)

7

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 ante 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

8

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 in

misconduct or criminal behavior just because he has a lengthy criminal record

or because he may have a huge incentive to do whatever it takes to gain a new

trial or sentencing proceeding. Why, then, is it permissible for a trial

court to presume that a prosecutor, who is legally and ethically required to

reveal deals with co-defendants, might have violated that duty in the absence

of information that would make such a presumption reasonable?

9

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 material

issue of fact before the trial court and there

being no purpose to be served by further

proceedings, the summary disposition of thepetition 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

10

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.

nn. for 1gr discover asthe trial court's stated

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 atShonelle Andre Jackson's trial, including: 1) all

juvenile detention, jail, prison, parole,

probation, and presentence investigation records;

2) all sentencing reports; 3) all arrest,conviction, and adult and juvenile criminal

offense 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

11

any detention or court authority; 6) all records

of any prosecuting authority; 7) all psychiatric,

psychological, and mental health records; 8) alldocuments relating to any lie detector test taken

by 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

1I

what they might reveal or how they related to any claims

before the trial court. See Pa yne 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 Rule

16's plain language.

12

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 parte Western Mental Health Center 2003 WL 23025579-'^

(Ala. 2003). The trial court in this case or e

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

1 1 *4 n.7. To rememdy this injury , this Court should issue a

1 1 7 This case is discussed in greater detail below.

11

13

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 Allowing

Jackson Access To Juror Questionnaires And Other

Documents Relating To The Jury And The Jury Selection

Process In Montgomery County.

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 contentio

that the juror misconduct claims were procedurally barr d

and that the ineffective assistance of counsel claim wa

^ tue- to __be dicer issed bec'auseTFie underlying issue was

without merit. ©^_ 1

The juror misconduct claims were p cedurally barred.

(Exhibit C at 2-3) In Woods v. State, 2004 WL 1909291 (Ala.

Crim. App. Aug. 27, 2004), this Court reiterated the

14

Iprinciple 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

15

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.

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-

16

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 Allowing

Jackson Access To Any And All Visitor Sign In Sheets

And/Or Logs Of Visitors To Himself And His Co-

Defendants.

17

1The 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 t a 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).

18

F. The Trial Court Abused Its Discretion By AllowingJackson Access To Any And All Criminal And

Correctional Recordd8is_Fk-^her , Louis Wendell

Tay

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

B In addition, for the reasons shown below, granting discovery of his father's

records violates every concept of fairness and due process imaginable.

Jackson's father is a nonparty to this case. His privacy rights must stand

until he is given notice that his records are being sought and an opportunity

to respond.

119

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

20

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 Protect

Nonparties 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

21

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, d 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

22

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 .q., 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

23

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 H es and the Board of Pardons and

Paroles, it makes no sense to treat the respondent in a

Rule 2 petition as "the State" for purposes of serving

massive , boilerplate discovery requests in collateral

proceedings. The State, as represented by the prosecutorial

24

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

25

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 authority 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 documents

for use at a criminal trial.

10 This discovery request was granted despite the absence of any pleaded facts

suggesting that any State witness has any mental health records or has

received mental health treatment. Petitioner's fishing expedition, however,

it not the biggest problem relating to this issue, considering the fact that

this order was issued without any of the State' s witnesses ever being

notified that their records were being sought and without their having a

chance to appear and contest the issue before the trial court.

1 26

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. 101190, 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 or

the State's witnesses have ever waived their right to this privilege, nor

that they are aware that these records (if any exist) are being sought for

use in this proceeding. The trial court, below, did not even inquire into

this matter during the motions hearing, as the Court granted all discovery

requests immediately upon hearing arguments concerning the petitioner's Brady

claim as it related to discovery.

27

It is time for this Court to apply Rules 37 and 45 of

the Alabama Rules of Civil Procedure - in addition 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.12 This

11 12 In Land, the Court commented in dicta that requiring State agencies to

11 28

Court should also clarify its earlier ruling in Ex parte

State (Hooks), 822 So. 2d 476, that held the Court 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

Governinq 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 s 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's

' speculation about the effects of subpoena compliance and record review was

accurate. In a time of budget shortfalls and layoffs, it is unduly burdensome

to perform a record search that could be avoided if the party making the

request was subject to sanctions if it were determined that such a request

was merely part of a "fishing expedition."

' 29

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.

I October 20, 2004

I I

Respectfully submitted,

Troy KingAttorney General

James R. Houts

Assistant Attorney General

Jer y McIntire

Assistant Attorney GeneralCounsel of Record*

State of Alabama

Office of the Attorney General

11 South Union Street

Montgomery, AL 36130-0152

(334) 353-4014 *

30

111

i I

CERTIFICATE OF SERVICE

I hereby certify that on this loth 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:

' Bryan A. Stevenson

Angela L. SetzerEqual Justice Initiative of Alabama

' 122 Commerce StreetMontgomery, AL 36104

I

jum7Wemy . McIntire


Counsel of Record *

ADDRESS OF COUNSEL:


Capital Litigation Division

Alabama State House


Montgomery, AL 36130(334) 353-4014 *

6MAR 1 8 2005 --I7l- T

cocIOVG0^

l- Cd41m,cj) Oej jN Ae-j0 . If

31

G 'ALIN THE ALABAMA COURT OF CRIMINAL APPEALS

NO. D Ogv


IN RE:


PETITIONER,

V5.

STATE OF ALABAMA,

RESPONDENT.

FIL

O C T 2 0 ZQti4

CLERKALA COURT CRIMINAL APPEALS

EXHIBITS

FOR THE




Volume I of II

TROY KING

Attorney General

And

James R. Houts


Jeremy McIntire




ALABAMA STATE HOUSE



INDEX TO EXHIBITS

EXHIBIT A Jackson's Amended Rule 32 Petition

EXHIBIT B State's Answer to Jackson's Amended Rule

32 Petition

EXHIBIT C State's Motion to Dismiss Procedurally

Barred Claims

EXHIBIT D State's Motion to Dismiss Insufficiently

Plead Claims

EXHIBIT E State's Motion to Dismiss Claims Pursuant

to Rule 32.7(d)

EXHIBIT F Jackson's Motion for Discovery of

Institutional Records, Files, andInformation Necessary to a Fair Rule 32

Evidentiary Hearing

EXHIBIT G Jackson's Motion for Discovery ofProsecution Files, Records, and

Information Necessary to a Fair Rule 32

Evidentiary Hearing

EXHIBIT H State's Response to Jackson's Motion forDiscovery of Institutional Records,

Files, and Information Necessary to aFair Rule 32 Evidentiary Hearing

EXHIBIT I State's Response to Jackson's Motion for

Discovery of Prosecution Files, Records,

and Information Necessary to a Fair Rule

32 Evidentiary Hearing

EXHIBIT J Jackson's Response to the State's

Opposition to his Discovery Requests

EXHIBIT K Transcript of the October 13, 2004

Hearing Held On the Parties Motions

EXHIBIT L Court's Order Of October 13, 2004

ii

I IA

1111111111

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT,MONTGOMERY COUNTY, ALABAMA

*


Petitioner,*

*V.

*

STATE OF ALABAMA,

Respondent.*

Case No . CC-97-2300.60

AMENDED PETITION FOR RELIEF FROM JUDGMENT PURSUANTTO RULE 32 OF THE ALABAMA RULES OF CRIMINAL PROCEDURE

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.)

12. Due to Mr. Jackson's inability to afford a lawyer, the Honorable William

' Gorden, 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,

' short hearing. After only twenty-five minutes of deliberation, the jurypenalty

' 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

I 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

1^ I

?

1

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.

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.

^ 1 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. Washin ton, 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, Petitioner

' has 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.

r}

I 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 of Mr. 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." Td. 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

4

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

of powers 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 Su erior 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 of this 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.

3The 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.)

5

I, tI

"received by the average competent attorney operating on the open market"). "It is well

' 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." Walthorp v.

1 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's

Trial , and Thereby Deprived Petitioner of his Sixth and FourteenthAmendment Rights.

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. Washington, 466 U.S. 668 (1984).

1. Trial Counsel Failed to Adequately Investigate 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

6

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 . Mont ome , 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"); Nealy v. Cabana, 764 F.2d 1173,

1177 (5th Cir. 1985) ("A substantial body of... case law insists ... that effective counsel

conduct a reasonable amount of pretrial investigation ."); Goodwin v. Balkcom, 684 F.2d 794,

805 (11 th Cir. 1982).

' 19. In this instance, counsel failed to make an independent investigation of the

I 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

^ 1 7

I 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

I defense counsel sought to introduce a tape recording of his statement at trial, counsel learned

1 that the "tape was never impounded." (R. 38.) By virtue of their failure to find and interview

i i 8

1this 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

1 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 lace duringplace

a robbery.

25. Counsel should have investigated and presented evidence in support of this

theory in response to the State's motion in Iiinine to prevent Mr. Jackson from presenting

^ 1 9

1evidence 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

aactivity , 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 was

a drug dealer . and that his wife could establish his reputation as such. (R. 31.)

1 10

I I

I convicted Mr. Jackson of capital murder.

2. Trial Counsel Failed to Procure Necessary Expert 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.g., 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

expert witness. 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

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.5

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.

12

11 -

J

1 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

I

and in front of a jury. See paragraphs 56-57.

13

1 1 -

' 36. 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 Effectivel Challenge theState' s Investigation and Presentation of the Case

14

139. Counsel failed to effectively challenge the State's investigation and

1 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

it the morning of trial, primarily because counsel was "`mistaken as to his age." R.filed until

' 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

1constitutionally 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

^ 1 15

11 1

1I 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

W 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-EWR)." (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

' underly ing 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

1 16

11 *1

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

1weapon 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

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

case was entirely circumstantial . The record in this case doesevidence in this not contain

evidence sufficient to establish that a robbery took place during the murder or that Mr.

I 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

^ 1 17

1 1 1

I 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 be

18

1 1 1

I' 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

1by 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

19

1

1 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

n 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

I have presented evidence and argument to show that, in light of the standards articulated in

Ex arte 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`h 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

1 jury.

1120

1 1.

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. Washin gton, 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

21

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

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.

11

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

erfonnance was defective . Had counsel conducted investigation, counsel could haveP

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

permitted 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 M.

^ 12 3

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

24

I 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.' 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'sackson'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

1 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

I'Attorney Russell initially objected to the admission of the video "until after we have seen

' it," but was reminded by his co-counsel attorney Bruner. that he "had seen it." It was then admitted.

(R. 259.)

1 25

evidence in support of a conviction of less than capital murder. As articulated earlier, counsel

should have presented evidence, in the fonn 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 thecl-s.

26

' 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 IikeIy 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

r record. (See, e.a R. 250, 368, 530.) It is absolutely essential that capital sentences be

I 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. Georgia, 428 U.S.

' 153, 167 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (Georgia's capital

1 sentencing provision requiring transmittal on appeal of complete transcript and record is

important "safeguard against arbitrariness and caprice.") Counsel's failure to ensure an

1271

1-# A

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 Re quest and Failed toObject to the Trial Court ' s Failure to Instruct theJury on the Lesser Included Offense of Robbery

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 court properly 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 Object when the TrialCourt Improperly Left the Courtroom While theJury Watched Mr. Jackson's Videotaped

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

Statement.

^ 1 28

object to this constitutes ineffective assistance of counsel. See infra, issue VIII (incorporated

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

I ensure that the jury was properly instructed constitutes ineffective assistance of counsel. See

I infra , issue XI (incorporated by reference).

7. Trial Counsel Failed to Ensure that the Jurorswere Properly Instructed about the Accom liceCorroboration 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

iaccomplices, 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

I 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 permitted the State to rely on this uncorroborated testimony to gain a

^ 1 29

conviction against Mr. Jackson. Trial counsel did not, however, move the trial court to

nrnnerly instruct the, furors ahniit the accomnlice corroboration requirement. 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 PerformanceDenied Mr. Jackson his Right 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. Taylor, 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 Death

' Penalty.

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 j udicial 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. Washington, 466 U.S . 668 (1984).

1. Trial Counsel Failed to Investigate and Present even aPortion of the Available Mitigation Evidence During the

I 31

1Penal Phase and Sentencing Hearing

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

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. Singletary , 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 Wiggins , 123 S. Ct.

' at 2537 (citing the American Bar Association , Guidelines for the Appointment and

Perfonnance of Counsel in Death Penalty Cases, 11.8.6, p.133 (1989), as "guides to

determining what is reasonable" conduct in capital defense work).

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1I

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 Wiggins, 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`" Cir. 2002) (counsel ' s failure to

investigate , obtain , or present the "powerful mitigating evidence of [defendant ]'s borderline

mental retardati on , psychiatric disorders , and history of drug and alcohol abuse"constituted

' ineffective assistance of counsel ); Harris v. Dugaer, 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

1 Jackson ; a grandfather , Tommy Tay lor; aunts, Joyce Harvest , and Geraldine Tay lor; a great

13 3

1I aunt, Betty Brawlin; uncles, Freddie Owens, Donald Collins, and Roosevelt Emerson, Jr.; and

I 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

i 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

I 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? in, 177

r 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

I 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

I 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]." Cunnin ham 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

Ii 35

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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

36

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.

I

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1 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 male

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

1 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

1 40

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unable to support adequately her children . Consequently , the Jackson 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 infonned 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 n than six occasionsno less 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.

1' 42

14 ,

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,

w 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,

1 43

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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 of the 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,

I I Shonelle's father , Louis Taylor , carried a knife on his person most places he went. Louis

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ITaylor, 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

' 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 of violence 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 Mr. 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

45

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,

46

testified that ShonelleWanda Jackson and Keisha Young , would have onelle 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,

' 47

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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

' 48

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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

1 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

I49

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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

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,

rv t and Chakka Harvest would have testified that

I 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 attended church

Iwith 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

1Shonelle 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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1

educational history and good character, trial counsel failed to adequately prepare and present

this evidence at either the penalty or judicial sentencing phases of Mr. Jackson's trial. Had

I this evidence been presented, Mr. Jackson would have been sentenced to life without

possibility of parole . Their performance was clearly deficient and prejudicial to Mr . Jackson.

1See Wiggins, 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. Turpin, 177 F.3d 1184 (11th Cir. 1999)

I (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. Dug er, 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

I members described defendant as a devoted father, husband, and brother).

I 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

I reasonable probability of a difference in outcome is sufficient to establish constitutionally

^ 1 51

1I

ineffective assistance of counsel).

' 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."

' Id. (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

i 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. Dugger, 833 F.2d

1430, 1433 (11th 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. Dugger, 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 aPhase Strategy to' Penal and Sentencing

Convince the Sentencin Authority that Lifewithout Parole was the Appropriate Sentence inthis Case.

52

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. Turpin, 142 F.3d 1383 , 1389 (11th Cir . 1998) (citing Penny v.

7Indeed, 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.

53

IL 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.

158.)

138. Trial counsel then failed to present any additional evidence to the judge, instead

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 impainnents, 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 PresentInde pendent Expert Witnesses at the Sentencingand Penal Phases of Mr. Jackson's Trial

1 54

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.

55

1143. A mental health expert would have gathered information relating to Mr.

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.

1 144. 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

1 impaired his mental state. This exert would have also assisted counselp in recognizing the

1 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

1how these factors resulted in an impaired and suggestible individual.

1 145. Trial counsel's failure to obtain and present independent expert witnesses at

1 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

1 deficient performance, the outcome of Mr. Jackson's trial would have been different and he

1 would not have been sentenced to death.

56

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 Failin to Object tothe Method of Execution in Alabama as Cruel andUnusual Punishment

' 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 Failing toObject to the Double Countin of Robbe as anElement of the Capital Offense and as anAggravating Circumstance

1 148. 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 ( 197 6) . Such error failed to narrow

' 57

Ithe 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 Object to the DeathSentence in this Case as Disproportionate, inViolation of Mr. Jackson's State and Federal

' Rights

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 SentencinPhases of His Capital Trial

1 150. 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

II, I58

1

111111111

11

ineffective representation during the penalty and sentencing phases, Mr. Jackson would be

sentenced to life in prison without parole. See Kyles v. Whitle , 514 U.S. 419 (1995) (errors

considered cumulatively); Derden v. McNeel, 978 F.2d 1453 (5`h 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. Wiggins v. Smith, 123 S. Ct. 2527 (2003); Williams v. Taylor, 120 S. Ct.

1495 (2000); Strickland v. Washington, 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.

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

detennination 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.

59

111

1

11

1

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 12arte O'Leary, 438 So . 2d 1372, 1373 (Ala . 1983); Ex parte

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 (11`" 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 I

asked during voir dire.

154. Additionally , several jurors failed to disclose that they knew prosecutors, the

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 infonnation on

voir dire . Also, juror Jan Burkes did not reveal to the court that her cousin is Judge Gillis.

Additionally , Robert Hodgson failed to disclose , when asked on voir dire , that he knewD^

Montgomery County District Attorney, Ellen Brooks. Had these jurors disclosed this

60

information , these jurors would likely have been removed from Mr . Jackson ' s jury venire.

Additionally , J uror Ashley Dickey Walden failed to disclose that she has several friends in'C.^

the Montgomery County Police Department when asked during voir dire.1 '

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 th e]

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 onlyJ g

' to determine whether or not Mr . Jackson was guilty of capital murder . (R. 41.) Nonetheless,

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.

' 157. Additionally , j urors 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 revea 1CJ

that he had heard about the case before trial . Jurors Coatest Carter, Jan Burkes and Jame

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 disclose

this information on voir dire . Finally, juror Mary Jackson also failed to reveal that she had

61

Ibeen involved in prior civil lawsuits.

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 parte 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 parte 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 Jan Burkes , 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,

62

including Cathy Bullock , Catrina Buggs, David Davis , William Davis , Barbara Endsley,

Bernice Ethridge , James Garner, Mary Jackson , Monroe Clark , Coatest Carter, and Ashley

1 Dickey Walden. This crime scene investigation constituted unauthorized independent

• investigation and was impermissible. See United States v. Martinez, 14 F.3d 543 (11"' Cir.

T 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

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 arte 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 pane Lasley, 505 So.

2d 1263 (Ala. 1987) ( several jurors conducting home experiment warranted reversal.); see

63

1

also United States v . Castello, 526 F. Supp . 847 (W.D. Tex . 1981) (court reversed where

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 j urors 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

64

I' 1

Alabama State law.

165. In B d v . Ma land, 373 U.S. 83 ( 1963), the United States Supreme Court

stated that "the suppression by the prosecution of evidence favorable to an accused upon

Trequest 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.

' case , the State failed to turn over to defense counsel the evi166. In this dente 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 of the witnesses. Giglio

' 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 arte Womack,

541 So . 2d 47 (Ala. 1 988) .

' 167. Additionally , the evidence introduced at trial and in the records that Mr.

VR4 . NoT Q C) 1^-- SJackson 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 narne nor did he

' mention 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 with

' an individual named "Big Leon ." None of the offense reports or statementsprovided by the District Attorney's office explain how Detective Signore

65

1

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.

(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. V, (3c-J`l

(c) As indicated in a April 2 8, 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 Sheriff'sDepartment relating to this complaint . \,.J .K^

(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 Caine 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.*N .

(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. Nok%tc

(f) Other gaps in the evidence indicate that the State has not provided all of therequired evidence to Mr. Jackson. [fir. 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

66

iprosecution were not disclosed to Mr. Jackson's trial counsel. fir'

(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. rip

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. Virginia , 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

67

I ..I

"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 4`h 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.

68

I

1

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). All of these descriptions are consistent with an

' individual who is mentally retarded.

172. Moreover, records of the Alabama Department of Corrections in 1997 '®O0;^Vjestablishes that Mr. Jackson received an Full Scale IQ score of 75 on a Beta II Test.9

173. Additionally, investigation reveals that Mr. Jackson's mother, Marilyn Jackson,

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: Definition,Classification 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).

69

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 Eddings

v. Oklahoma, 455 U. S. 104, 115 n.l l (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,

70

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 of the 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. Criin. App. 1993) (citing Ex parte 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 SS aziano 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 parte Johnson, 620 So. 2d 709, 712 (Ala. 1993)

72

("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 ofthe 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

7 3

Ipretrial 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

I 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. Maryland, 373 U.S. 83 (1963). Mr.

I 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).

I185. 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

I continuance deprived Mr. Jackson of his rights to due process, to present a defense, a fair

I 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 VIDEOTAPED

I STATEMENT.

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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 object).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.

I IX.

I

THE STATE IMPROPERLY OBTAINED MR. JACKSON'SCONVICTION BY UNCORROBORATED ACCOMPLICE

75

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 Gurle 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.

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. Kentuck , 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 Exparte Thomas, 659 So. 2d 3 (Ala. 1994), the Alabama Supreme Court

I 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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IState, 673 So. 2d 791 (Ala. Crim. App. 1995) (principles of Batson and its progeny extended

I 1 to gender discrimination). In addition, there was a lack of meaningful voir dire and the

I district attorney for Montgomery County has a history of racial discrimination in jury

selection . See=e , Ex parte Yelder, 630 So. 2d 107,109 (Ala. 1992); Ex parte Bird, 594 So.

2d 676, 681 (Ala. 1991); Parker v. S tate, 568 So . 2d 335 (Ala. Crim. App. 1990); Powell v.

I

I

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.

1

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 of your personal affairs." (R. 85.) Similar to the trial

court in Cage, this court also told the jury that the State need not prove Mr. Jackson's guilt

"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 of the jury" should be excluded from evidence. Ott 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. Wainwri ht, 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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I could follow the law, the trial court erred in granting the state's challenge for cause as to

1111

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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

Fourteenth Amendment in the Batson context . See e . g., Powers v . Ohio, 499 U.S. 400

embraced a broader definition of cognizability under the Equal Protection Clause of the

(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,

I 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. Ex parte 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 Winshib, 397

U.S. 358, 364 (1974); see also Montana v. Egelhoff, 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 Ex parte_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 t' 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.

1

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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. Seems e.a., 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 v. Pearce, 395

U.S. 711, 717 ( 1969); Meyer v. State, 575 So. 2d 1212 (Ala. Crim. App. 1990). The double

counting ofrobbery 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.

I XVII. ALABAMA'S MANNER OF EXECUTIONCONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

' 210. The Eighth Amendment requires states to take all feasible measures to

F

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.

84

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.

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;

85

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(c) issue an order relieving petitioner ofhis 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.

submitted,

Angela L. SetzerEqual Justice Initiative of Alabama122 Commerce StreetMontgomery, AL 36104334-269-1803

Counsel for Mr. Jackson

Dated: March 31, 2004

ATTORNEY'S VERIFICATION

I swear under penalty of perjury that , upon in rmatrabel ief, the foregoing is

true and correct. Signed on March 31, 2004.n la .

Counsel for Mr. Jackson

SWORN AND SUBSCRIBED before me this the day of MM4 c l , 2004.

A l4 Notary Public

y es : c ^' o Z o ocum^niss, zir

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11111111111111111


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:

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

Angela L. Setzer

87

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA


Petitioner,

v.

STATE OF ALABAMA,

Respondent.

CC-1997-2300.60

STATE OF ALABAMA ' S ANSWER TO JACKSON ' S AMENDED PETITION

FOR 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,

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(l), 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)

2

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

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

3

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. Cram. 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 -Appointed

Attorneys 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.

4

1

11

11

1Li

1

I iII

11

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 strategicchoices or unprofessional mistakes, but is

instead asserting that despite the best

intentions to act in the client's behalf,

the attorney's performance has beenimproperly hampered by forces beyond the

attorney'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, if

they 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.

to meet the requirements of Rules 32.3 and 32.6(b),

b) This claim is due to be dismissed for failing

Ala.R.Crim.P. Jackson does not fully disclose the

5

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

6

1Criminal Appeals ruled that the ground for the claim

wa s 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

f d bh l do rea ounn t raising a claim this court as a y to e

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

1 should be dismissed as a matter of law.

d) Alternatively, this claim is denied.

A. The Claim That Jackson Was Denied EffectiveAssistance Of Counsel During The Guilt Phase

Of His Trial.

' 10. This claim is contained in paragraphs 17-71

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

1 7

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 The

State ' s Capital Murder Charge Against

Jackson.


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:

a) The claim that trial counsel was

ineffective for failing to adequately

meet with Jackson and establish a

relationship 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

I which would entitle Jackson to relief and no purpose

2 This claim is due to be dismissed as insufficiently

plead to the extent that Jackson is alleging thattrial counsel's failure to investigate would have

resulted in the discovery of evidence or testimony

separate and distinct from evidence concerning a

"drug deal gone bad". In Thomas v. State, 766 So. 2d

860, 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 offailure to investigate must show with specificitywhat information would have been obtained with

investigation, and whether, assuming the evidence is

admissible, its admission would have produced a

different result." Jackson fails to specify to the

Court 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 the

guilt-phase or penalty phase of trial. As such,

Jackson's claim fails to comply with the specificityand 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).

9

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.

10

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


meet with Jackson ' s family.


to be summarily dismissed pursuant to Ala. R. Crim. P.


which would entitle Jackson to relief and no purpose



counsel not failed to investigate , they would have

found evidence indicating that the murder was the






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

in 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)





Crim. P. 32.7(d) because no material issue of law or




c) The claim that trial counsel was


meet with or interview the State's

witnesses or other individuals whose

testimony would have undermined the

State' s case.






12


' counsel not failed to investigate, they would have

' found evidence indicating that the murder was the



' ' s motion intrial court would have denied the State

' limine. However, the record demonstrates that in

objecting to the State's motion in lirnine, counsel did


' tih s mo one Statehave been presented in response to t

' in limine. Prior to trial, Jackson's counsel argued

that the victim and defendant were drug dealers and the


' Trial counsel further explained to the trial court that







' Crim. P. 32.7(d) because no material issue of law or

11 13




d) The claim that trial counsel was

ineffective for failing to locate and

interview Gerard Burdette.







counsel not failed to investigate, they would have

found evidence indicating that the murder was the







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

14


Trial counsel further explained to the trial court that







Crim. P. 32.7(d) because no material issue of law or



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.

15

2d 733, 744 (Ala. Crim. App. 2000)("A finding of no

manifest injustice under the `plain error' standard on



counsel provided in Strickland v. Washington");

Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.


not raising a claim this court has already found to be




should be dismissed as a matter of law.

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 wasineffective for failing to procure the

assistance of a firearm and projectileexpert.

a) Based on the trial record, this claim is due to

be summarily dismissed pursuant Ala. R. Crim. P.

16




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?

17

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

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.






amended Rule 32 petition, Jackson argues that the State

relied on Leroy Geary to establish that it was the

18

1person 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

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

d i ' t ft h Rth 317 386 438r ver s sea a e cras . ( . ,er , ).

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

k oJac s n was the shooter. Therefore, Jackson cannot

establish deficient performance or prejudice under

^ 1 19

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

ineffective for failing to procure the

assistance of an investigator and/or

social worker.

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



20





proceedings, the court may either dismiss the 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).

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

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)The claim that trial counsel was


assistance of a mental health expert.






22

i

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

' ifi ll id tif t l i i t hy any menspec ca y en a mpa rmen s e

' 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

i i " ' ipet t on ). Jackson s cla m 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).

' b) Alternatively, this claim is denied.

23

e)The claim that trial counsel was


assistance of an expert on drug and

alcohol 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

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) .



For Failing To Effectively Challenge The

State ' s Investigation And Presentation Of

The Case.


and contains numerous sub-claims. These claims are


a. The claim that trial counsel was

ineffective for failing to timely

file a Youthful Offender Application.



25



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,

burglar-y, 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

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 wasineffective for failing to challengeJackson ' s underlying convictions.



Ala.R.Crim.P. Jackson does not disclose the factual

27

1

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

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


' R l 32 6(b) 32 3 Al R C i P th f it iu e . , . , a. . r m. .; ere ore, s


Crim. P. 32.7(d).

1b) Alternatively, this claim is denied.

c. The claim that trial counsel was

ineffective for conceding guilt

' before the trial court.

' 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

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.


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 ismy duty to tell you what the law of this case is

29

and how you will go about arriving at a verdict in

this phase of the case.

(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 burdenentirely on the State of Alabama to prove his

guilt beyond a reasonable doubt before you findhim 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 does

not 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 was

ineffective for failing to remove

30

1

certain jurors and for failing to

' secure a jury expert.



' Ala.R.Crim.P. Jackson does not disclose the factual

' 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 s that the"If th t d ti i di erm ee cour ere. (n vo r

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

' " ' s claim fails to comply with thepetition ). Jackson

' specificity and full factual pleading requirements of

' Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is


7i 32 (d).Cr m. P. .

' b) Alternatively, this claim is denied.

1' 31

f. The claim that trial counsel was

ineffective for failing to object to

the 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

and, as a result, this claim should be dismissed as a

' matter of law.


g. The claim that trial counsel was'


raise and argue Batson and J.E.S.

objections.


' law because the underlying issue was raised on direct

' appeal and held to be without merit. Jackson v. State,


Court of Criminal Appeals held that no Batson or J.E.S.

' 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.

' 2d 733 744 l ", (A a . Crim. App. 2000 )( A finding of no

' manifest injustice under the `plain error' standard on


' prejudice under the test for ineffective assistance of


' 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 alread y found to be

' 33






h. The claim that trial counsel was

ineffective for failing to adequatelyinvestigate and cross -examine certain

witnesses.



Ala.R.Crim.P. Jackson does not disclose the factual

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

the petition or grant leave to file an amended

petition"). Jackson's claim fails to comply with the




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.

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 limitations 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.

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


State, 805 So. 2d 733, 744 (Ala. Crim. App. 20,00)("A





36

Washington'); Callahan v. State, 767 So. 2d 380, 388







law.


j. The claim that trial counsel was

ineffective for failing to challenge

the State ' s expert ballistic

evidence.


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

11

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

' material issue of law or fact exists which would

' 38



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





proceedings , the court may either dismiss the petition





39


32.7 (d) .

t) Alternatively, this claim is denied.

k. The claim that trial counsel was


irrelevant and prejudicial evidence.


law because the underlying issue was raised on direct



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. Crim. App. 2000)("A finding of no







not raising a claim this court has already fo.und to be

40






1. The claim that trial counsel was


evidence without the proper chain of

custody.


law because the undet_ILying issue was raised on direct


836 So . 2d 915, 953-955 (Ala. Crim. App. 1999). The

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


State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A





Washington"); Callahan v. State, 767 So. 2d 380, 388

41







law.


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

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

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





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

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.


o. The claim that trial counsel was

ineffective for failing to ensure a

complete 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

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


claim was without merit. See Dobyne v. State, 805 So.




47



Callahan v. State, 767 So. 2d 380 , 388 (Ala . Crim. App.





held to be without merit and, as a result , this claim


(b) -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.










48

claim was without merit. See Dob ne v. State, 805 So.













(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

950.(Ala. Crim. App. 1999). Jackson cannot prevail on



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




Callahan v.=State, 767 So. 2d 380, 388 (Ala. Crim. App.





held to be without merit and, as a result , this claim




Failing To Insure That The Jury Was

Instructed About The Accomplice

Corroboration Requirement.



50




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' standard. on.





1999 )("Counsel can not be said to be ineffective for




held to be without. merit and, as a result, this claim



8. The Claim That The Cumulative Effect Of

Counsel ' s Ineffective Performance At The

51

Guilt Phase Denied Jackson The Right To The

Effective Assistance Of Counsel.



(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 counsel

must identify the acts or omissions

of counsel that are alleged not to

have been the result of reasonableprofessional judgment. The court

must then determine whether, in

light of all the circumstances, the

identified acts or omissions were

outside 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

Moreover, Rule 32.7(d) states:

If the court determines that the

petition is not sufficiently

specific, or is precluded, or fails

to state a claim, that no material

issue of fact or law exists which

would entitle the petitioner torelief under this rule and that no

purpose would be served by any

further proceedings, the court mayeither dismiss the petition or grant

leave 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 Effective

Assistance Of Counsel During . The Penalty And

Sentencing Phases of His Trial.


' and contains numerous sub-claims. These claims are

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 pursuant

' to Ala. R. Crim. P. 32.3, 32.6(b). Jackson fails toidentify any evidence or information that would have

' 53


Failing To Investigate And Present "Even A

Portion Of The Available Mitigating

Evidence " At Both The Penalty And

Sentencing 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.


I and is answered as follows:

' a) This claim is denied.

' 3. The Claim That Counsel Was Ineffective

For Failing To Obtain And Present

Independent Expert Testimony At ThePenalty And Sentencing Phases.

' 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 pleadingrequirements of Rule 32.6(b), 32.3, Ala. R. Crim. 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 theacts or omissions on the part of his trial counsel thathe believed constituted deficient performance, hefailed to include in his petition any facts tending toindicate how those acts or omissions prejudiced hisdefense.").i ^ 54

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

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.



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

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.



For Failing To Object To Double Counting

Robbery As An Element Of The Capital

Offense And As An Aggravating

Circumstance.



a) This claim is without merit and should be










57










should be dismissed as a matter of law pursuant to Rule

32.7(d) of the Ala. R. Crim. P.


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








Callahan v. State, '767 So. 2d 380, 388 (Ala. Crim. App.






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 Effective

Assistance Of Counsel.



59

1

a) This claim should be dismissed pursuant to

Ala. R. Crim. P. 32.7(d) as a matter of law because

Ithis 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 counsel

must identify the acts or omissions

' of counsel that are alleged not to

have been the result of reasonable..

professional judgment. The court

' must then determine whether, in

light of all the circumstances, the

identified acts or omissions were

outside 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

60

specific, or is precluded, or fails

to state a claim, 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 anyfurther proceedings, the court may

either dismiss the petition or grant

leave 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

61

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; Magwood 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.

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;

63

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.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 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;

Magwood 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).

64

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

65

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

66

dismissed pursuant Ala. R. Crim. P. 32.7(d) because no

material issue of law or fact exists which would



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 time

of trial or sentencing or in time to file a

posttrial motion pursuant to Rule 24, or in time

to be included in any previous collateral

proceeding and could not have been discovered by

any of those times through the exercise of

reasonable diligence;

(2) The facts are not merely cumulative to other

facts that were known;

(3) The facts do not merely amount to impeachment

evidence;

(4) If the facts had been known at the time of

trial or of sentencing, the result probably would

have been different; and

(5) The facts establish that the petitioner isinnocent of the crime for which the petitioner was

convicted or should not-have received the sentence

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

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 IS

DISPROPORTIONATE IN VIOLATION OF JACKSON ' S STATE

AND FEDERAL RIGHTS.



68

a) 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 parte Singleton,

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.





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.


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

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. 2.d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206

70

(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)


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).






that was raised or addressed on appeal. See e.g., Ex


71



So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206


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:



addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and




2d 544, 551 (Ala. Crim. App. 1994); Ex arte Singleton,

548 So. 2d 167, 171 (Ala. 1989).



v. State, 836 So. 2d 915, 941-943(Ala. Crim. App.

1999).. Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama

72


that was'raised or addressed on appeal. See e.g., Ex



1103, 1105 ( Ala. Crim. App. 1988 ), cert . denied, 539



1988), cert. denied, 486 U.S. 1036 (1988).


IX. THE CLAIM THAT THE STATE IMPROPERLY OBTAINED

JACKSON'S CONVICTION BY UNCORROBORATED ACCOMPLICE

TESTIMONY.


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 Obtained

Jackson's Conviction By Uncorroborated

Accomplice Testimony.


because it was raised or addressed at trial. (R. 26-

73

30).. 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 , 943-946 (Ala. Crim. App.

1999). RuLe 32..2(a)(4), Ala.R.Crim.P. and Alabama








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.

74




because it could have been but was not raised. or





2d 544, 551 (Ala. Crim. App. 1994); Exparte Singleton,

548 So. 2d 167, 171 (Ala. 1989).



v. State, 836 So. 2d 915, 946 (Ala. Crim. App. 1999).



raised or addressed on appeal. See e.g., Ex parte

Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114


1105 (Ala. Crim. App. 1988 ), cert. denied, 539 So. 2d

1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989);


cert.. denied, 486 U.S. 1036,(1988).

75


X. THE CLAIM THAT THE STATE'S USE OF ITS PEREMPTORY

CHALLENGES DISCRIMINATED ON THE BASIS OF RACE AND

GENDER.



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 e.g.,



1171 ( 1994).

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

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 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).

d) Alternatively, this claim is denied.

XI. THE CLAIM THAT THE TRIAL COURT'S REASONABLE DOUBT

INSTRUCTION WAS UNCONSTITUTIONAL.








77

trial but was not. See e .g., Daniels v. State, 650 So.


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,





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.





78

addressed at trial. Rule 32.2(a)(3) Ala.R.'Crim.P. and

Alabama caselaw provide that relief 'cannot be given on


trial but was 'not. See e.g., Daniels v. State, 650 So.


548 So. 2d 167, 171 (Ala. 1989).




.1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama





1103, 1105 (Ala. Cram. App. 1988), cert. denied, 539



1988), cert. denied, 486 U.S. 1036 (1988).


XIII. THE CLAIM THAT THE TRIAL COURT IMPROPERLY

GRANTED THE STATE'S CHALLENGES OF JURORS FOR

CAUSE.

79




because it could have been but was not raised, or




trial but was not. See e . g . , Daniels v. State, 650 So.

2d 544, 551 (Ala. Crim. App. 1994); Expar_te Singleton,

548 So . 2d 167, 171 (Ala. 1989)..












1988)., cert. denied, 486 U.S. 1036 (1988).

80


XIV. THE CLAIM THAT THE TRIAL COURT IMPROPERLY ADMITTED

EVIDENCE THAT DID NOT HAVE A PROPER CHAIN OF

CUSTODY.




because i t 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.,



1171 ( 1994).



v. State, 836 So..2d 915, 953-955 (Ala. Crim. App.



that was raised. or addressed on appeal. See e.g., Ex



1103,, 1105 (Ala. Crim. App..1988), cert. denied, 539

81

So. 2d 1103 (Ala. 1989)., cert. denied, 110 S.Ct. 206


1988), cert. denied, 486 U.S. 1036 (1988).

c) Alternatively, this claim is denied.,

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.


548 So. 2d 167, 171 (Ala. 1989).


because it was raised and addressed on appeal . Jackson






82





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.










548 So . 2d 167, 171 (Ala. 1989).




1999).. Rule 32.2(a)(4), Ala.R.Cri_m.P. and Alabama

83








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.g., 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

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. 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).

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

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

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




raised or addressed on appeal . See e.g ., Ex parte

Ford, 630 So . 2d 115 (Ala. 1993 ), cert. denied, 114


1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d

1103 (Ala. 1989), cert. denied , 110 S.Ct. 206 (1989);


cert. denied, 486 U.S. 1036 (1988).


87

MISCELLANEOUS MATTERS

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

factual basis" for such claims as required by Rule

32.6(b), Ala.R.Crim.F.

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.


Troy King

Attorney General

erem W. Mclntire


Counsel of Record *

State of AlabamaOffice of the Attorney General

11 South Union StreetMontgomery, AL 36130-0152

May 31, 2004 (334)' 353-4014 *

89


I hereby certify that on -Zt_th 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:

Bryan A. Stevenson


122 Commerce Street

Montgomery, AL 36104

/% A,1A.,/ rV4t-,

ere W. McIntire


Counsel of Record *

ADDRESS OF COUNSEL:

Office of the Attorney GeneralCapital Litigation Division

Alabama State House



(334) 353-4014 *

90

Page 2 of 48

Westlaw.

836 So.2d 915(Cite as : 836 So .2d 915)

Court of Criminal Appeals of Alabama.

Shonelle Andre JACKSONV.

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 andfirst-degree theft of property. He appealed. TheCourt of Criminal Appeals, Baschab, J., held that:(1) defendant voluntarily gave inculpatory statementto 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

Page 1

111 Criminal Law X1030(1)110k1030(1) Most Cited Cases

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 X1030(1)110k1030(l) 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 X1035(2)110kl035 (2) Most Cited Cases(Formerly I10k 1036 .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.

141 Criminal Law X1044.2(1)I IOki044.2(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 X1035(2)11Ok1035(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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Page 3 of 48

836 So.2d 915(Cite as: 836 So .2d 915)

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 toraise issue again. Rules App.Proc., Rule 45A.

[61 Criminal Law X1044.2(1)110k1044.2(l) 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.

171 Criminal Law €412.1(4)110k412.1(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.

(8] Criminal Law X414I I Ok414 Most Cited Cases


Confessions and inculpatory statements arepresumed to be involuntary and inadmissible.

191 Criminal Law €517.1(2)I I0k517.1(2) Most Cited Cases

(9] Criminal Law X518(1)I I 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.


Page 2

Trial court's finding of voluntariness of confessionneed only be supported by a preponderance of theevidence.

[111 Criminal Law €1158,(4)110k1158(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 X1144.121 l0k1144.12 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.

1131 Criminal Law X1158(4)11Oki158(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 I Ok412.1( 1) Most Cited Cases

1141 Criminal Law X519(1)110k519(I) 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)110k4l2.1(1) Most Cited Cases

1151 Criminal Law x'519(1)110k519(1) Most Cited Cases

To determine if a defendant's will was overbornewhen he made a confession or another inculpatory

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Page 4 of 48

836 So.2d 915(Cite as: 836 So.2d 915)

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 €412.1(1)I I Ok4 l 2.1(1) Most Cited Cases

1161 Criminal Law €521110k521 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 €1035(10)1 I0k1035(l0) Most Cited Cases

1171 Criminal Law €1044.2(1)I10k1044.2(l) 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.

118] Criminal Law €1035(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.

1191 Sentencing and Punishment €1706350Hk1706 Most Cited Cases

[19J Sentencing and Punishment €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 x171435OHk1714 Most Cited Cases

1201 Sentencing and Punishment €1721350Hkl721 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.

121J Sentencing and Punishment €1777350Hkl777 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.

1221 Sentencing and Punishment €1785(3)350Hkl785(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.

123] Sentencing and Punishment €1784(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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Page 5 of 48

836 So.2d 915(Cite as : 836 So .2d 915)

fired fatal shot, trial court ultimately concluded thatassigning weight to advisory verdict based ontesting reliability of advisory verdict wasinappropriate.

1241 Sentencing and Punishment €32935011k329 Most Cited Cases

Trial court is the sentencing authority.

1251 Sentencing and Punishment €1784(3)350Hk 1784(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.

( 261 Sentencing and Punishment €308350Hk308 Most Cited Cases

By necessity, when sentencing, a trial court mayrely on information the jury did not hear.

1271 Sentencing and Punishment €1784(3)350Hk1784(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.

(28] Criminal Law €1038.21 lOk1038.2 Most Cited Cases

1281 Criminal Law X1038.3I I Okl038.3 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.

1291 Criminal Law €795(2.50)110k795(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-1- 9(b); Rules App.Proc., Rule 45A.

[301 Criminal Law €594(3)I10k594(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.

[31] Criminal Law €586110k586 Most Cited Cases

1311 Criminal Law €11511 IOkI 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 €594(1)110k594(1) 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 €1035(3)I I0k1035(3) Most Cited Cases

133] Criminal Law €1039I10k1039 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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Page 6 of 48

836 So.2d 915(Cite as : 836 So -2d 915)

at 9:30 next morning were subject to plain errorreview, where defendant failed to present claims totrial court . Rules App.Proc., Rule 45A.

1341 Criminal Law IC;=1035(3)110ki035(3) Most Cited Cases

(34] Criminal Law x1039110ki039 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.

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.

(381 Criminal Law €511.2110k511.2 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 €74l(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.

(40] Criminal Law €511.31 lOk511.3 Most Cited Cases

1351 Criminal Law €I166.2111 Oki 166.21 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.

136] Criminal Law E=511.1(7)110k511.1(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.

(371 Criminal Law €511 . 1(2.1)110k511.1(2.1) Most Cited Cases

(371 Criminal Law €511.1(3)110k511.1(3) Most Cited Cases

Circumstantial evidence is sufficient to showcorroboration of an accomplice 's testimony. Code1975, § 12-21-222.

141] Criminal Law €511.1(1)110k511.1(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.

142] Criminal Law E=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.


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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11

11

11

11

1

' Claim that trial court's reasonable doubt instructionimproperly lowered state's burden of proof was

836 So.2d 915(Cite as : 836 So -2d 915)

Page 7 of 48

Page 6

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

offense or as to each fact about which accomplicestestified; rather, state was simply required to

present other evidence that tended to connectdefendant to commission of the offense. Code1975, § 12-21-222.

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.

1441 Criminal Law €1038.2110k1038.2 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.

[45] Criminal Law X1038.2110k1038.2 Most Cited Cases

1501 Criminal Law X1036.1(6)I lOklO36.1(6) Most Cited Cases

Claim 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.

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.



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.

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.

[47] Criminal Law €1115(2)110k1115(2) 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.,

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.

[481 Criminal Law X1038.1(5)I IOk1038.1(5) Most Cited Cases

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Rule 45A.

1531 Criminal Law &438(1)110k438(1) 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.


Photographs that tend to shed light on, tostrengthen, or to illustrate other testimony presentedmay be admitted into evidence.


Photographic evidence, if relevant, is admissible

even if it has a tendency to inflame the minds of the

jurors.

[561 Criminal Law X438(5.1)110k438(5.1) Most Cited Cases

1561 Criminal Law X675110k675 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.


Photographs that depict the crime scene arerelevant, and, therefore, admissible.

1591 Criminal Law €1035(5)I10k1035(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 error review, where capitalmurder defendant failed to present claim to trialcourt. Rules App.Proc., Rule 45A.

1601 Criminal Law X1035(5)I10k1035(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.

[611 Jury €108230k 108 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.

163] 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 X1152(2)110kl 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 X108230k108 Most Cited Cases

A blanket declaration of support of or opposition tothe death penalty is not necessary for a trial judge todisqualify a juror for cause. Code 1975, §12-16-152.

[661 Criminal Law ©=1035(5)110k1035(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.

1671 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 X388.3I I Ok388.3 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.

169] Criminal Law €404.30I10k404.30 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.

1701 Criminal Law X404.20I I0k404.20 Most Cited Cases

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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.

171] Criminal Law X404.20I I Ok404.20 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.

1721 Criminal Law X404.30I I0k404.30 Most Cited Cases

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 X404.301 l0k404.30 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.

1741 Criminal Law X404.651 I0k404.65 Most Cited Cases

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 X1165203k1165 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 C-29(14)'I I Ok29(14) Most Cited Cases(Formerly 203k607, 203k18(5))

The capital crime of robbery when a victim is'intentionally 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).

1771 Homicide X607203k607 Most Cited Cases(Formerly 203k18(5))

' Although an intentional murder must occur duringthe course of the robbery in question in order to

'establish 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 C-607203k607 Most Cited Cases(Formerly 203k18(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 capital'offense 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 €607203k607 Most Cited Cases

' (Formerly 203k18(5))

1791 Homicide X1325' 203k1325 Most Cited Cases

(Formerly 203k282)

Although a robbery committed as a mereafterthought and unrelated to a murder will not'sustain 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 x1915203k915 Most Cited Cases(Formerly 203k152)

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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).

(811 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 :1144.13(3)I lOkI 144.13(3) Most Cited Cases

1821 Criminal Law C- 1144.13(4)110k! 144.13(4) Most Cited Cases

1821 Criminal Law 0;-1144.13(5)1 10k1 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.

(831 Criminal Law €l159.2(1)110k 1159.2(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.

[84] Criminal Law X1159.2(2)11Ok1159.2(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)1 lOkI 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.


[861 Criminal Law '552(3)I10k552(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 C=30135Hk30 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, § 13A-5- 40( a)(2),

13A-5-49, 13A-5-50.

1881 Attorney .and Client X13145k131 Most Cited Cases

1881 Constitutional Law €5292k52 Most Cited Cases

1881 Constitutional Law €24292k242 Most Cited Cases


1881 Eminent Domain €2(1.1)148k-!(I. 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

Page 10

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).

1891 Sentencing and Punishment X1796350Hkl796 Most Cited Cases

Electrocution as means of capital punishment doesnot constitute cruel and unusual punishment.U.S.C.A . Const .Amend. 8.

(90] Sentencing and Punishment X1796350Hk 1796 Most Cited Cases

Alabama's method of electrocution as means ofcapital punishment does not constitute cruel andunusual punislunent; 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.

[91] Sentencing and Punishment x1784(3)350Hk1784(3) Most Cited Cases

1911 Sentencing and Punishment X1785(3)35014k 1785(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).

[921 Sentencing and Punishment X1784(3)350Hkl784(3) Most Cited Cases

1921 Sentencing and Punishment X1785(3)350Hk1785(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 imprisorunent, against mitigating

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836 So.2d 915(Cite as: 836 So-2d 915)

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, §§ 13A-5-49(l, 4), 13A-5-51(7),13A-5-53(b)(1).

1931 Sentencing and Punishment X1681350Hkl68l Most Cited Cases

1931 Sentencing and Punishment X1704350Hk1704 Most Cited Cases


Death sentence was appropriate for defendant. whocommitted capital offense of murder committedduring first-degree robbery, given aggravatingcircumstances , 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).

194] Sentencing and Punishment X1681350Hk1681 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.

BASCHAB, Judge.

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Page 1 l

The appellant, Shonelle Andre Jackson, wasconvicted of capital murder for the killing ofLefrick 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. [FN 1 ]The 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.

FN1. 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 sdftdrink 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. Thecoroner testified that the cause of death was agunshot wound to his chest . Based on these events,the appellant , Barnes, Williams, and Rudolph wereindicted 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 Brook-view 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 indicatedthat it was the vehicle driven by the appellant andhis codefendants in connection with the murder.

Victoria Moss testified that , on April 25, 1997, asshe was driving near the Smiley Court area, she sawa 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 reachedher vehicle . She went to check on the man , but thegray car started coming 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" infront 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 describedthe 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 vehiclesinvolved 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 Porterfield'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 theones 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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836 So.2d 915(Cite as: 836 So .2d 915)

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 run 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, lieshot 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 lie 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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836 So.2d 915(Cite as: 836 So .2d 915)

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

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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.

[l][2] 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. Ea- 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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[3] The appellant's first argument is that the trialcourt improperly granted the State's motion inlimine, which prevented *930 the 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, which 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 ." Pero, v. Bralce/iekl, 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 his

statement about the murder and improperly refused

to conduct a suppression hearing outside the

presence of the jury. Before trial, he filed a motionto suppress his statement and requested that the trialcourt conduct a hearing on his motion. The trial

court denied the motion without conducting ahearing . At trial, the State introduced a videotape

of, 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 voluntarily

went to the police station , he was "particularlyvulnerable to police tactics of deception."(Appellant's brief at p. 14.) In his motion to

suppress 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 cupfrom 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 fingerprints 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][10][11] [12] [13][14] [15 ] [161 Confessionsand inculpatory statements are presumed to beinvoluntary and inadmissible . Ex paste 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. 199 1)).'In determining whether a confession is11

voluntary, 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. State, 588

So.2d 903, 907 (A1a. 1991), cert . denied , 502 U.S.1044, 112 S.Ct. 904, 116 L.Ed,2d 805 (1992)).

"In reviewing the correctness of the trial11 1

court ' 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. 199 1)."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 the

circumstances .' Boalden 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 Ea parteMatthews, 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 )); Culontbe, 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).

of '[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 todetermine its voluntariness . Frasier 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), at3'd, 673 So.2d 473 (Ala.1995), cert. denied. 518 U.S. 1020, 116 S.Ct, 2556, 135L.Ed.2d 1074 (1996) (quoting Ex parte 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. Hisstatement 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 error . 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 parse Price, 725 So .2d 1063

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(Ala.1998); Henry 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).

III.

[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 parseDavis. 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),cell . 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), affd, 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 pcrrte 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.Crim.P.,, specifically providesfor the inclusion of the defendant's prior juvenilerecord in the presentence report.

"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 themitiggating 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 1 149 (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. 199 1)."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 the

appellant was a physically mature adult at the timeof the offense . However , those physical attributes

were 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 this

regard.

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); Murrv 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 hear. 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 ismeritless . 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 parse 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. I993)."

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 February20, 1998, investigators of the District Attorney'soffice 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 DistrictAttorney, 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 byCorporal Cunningham can be used as evidence inthe Defendant's behalf."

(C.R.100.) At the close of the State'scase-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')."

Reese v. State. 549 So.2d 148, 151(AIa.Cr.App.1989), overruled on other grounds,Huntley v. State. 627 So.2d 1013 (Ala.1992). Seealso Banks v. State, 647 So.2d 46(Ala.Cr.App.1994); Miler 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. its 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 what's 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 clcfendant suffered any harm ordetriment on account of the judge's temporaryabsence,' Thomas, 150 Ala. at 48 [43 So. 371](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 alltunes 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 poste 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 Ex Parte

Ellis, 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 be 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.' McCov 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 setaside the accomplice 's testimony and determinewhether 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 , standingby 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 .' Andrewsv. State, 370 So.2d 320, 322 (Ala.Cr.App.), cert.denied, 370 So.2d 323 (AIa.1979). In this case,as in Perry v. State, 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."Montgorner i, v. State, 40 Ala. 684, 688 ( 1867).More recently, in Ex 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 (Ala ,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 .380Maglech 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 tired 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 harmless 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.1982); 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.

lx.

[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 sec 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 .' Knightv. 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 Ev parteWatkins. 509 So.2d 1074 (AIa.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 ordeject 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 Kuenzel v. State, 577So.2d 474 (AIa.Cr.App.1990), affd, 577 So.2d531 (Ala.1991), 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 So.2d 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 Ex 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 a death 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 violated cert . denied , 520 U . S. 1199, 117 S.Ct. 1559, 137'the principles of Cage v. Louisiana, 498 U.S. 39, L.Ed.2d 706 (1997), we held:I I I S.Ct. 328, 112 L.Ed.2d 339 (1990). The trial "The Due Process Clause of the Fourteenth

court instructed the jury on reasonable doubt as Amendment 'protects the accused against

' follows : conviction except upon proof beyond a

"I have told you that the State has to prove this reasonable doubt of every fact necessary to

case beyond a reasonable doubt from the constitute the crime with which he is charged.' In

evidence . So let's talk for a moment about what a re Winship . 397 U.S. 358, 364, 90 S.Ct. 1068,

reasonable doubt is. Simply put, ladies and 1073, 25 L.Ed.2d 368 (1970). In Cage v.

gentlemen , a reasonable doubt is a doubt for Louisiana , the United States Supreme Court

Iwhich you can give a reason . It may arise from found that a jury charge that defined 'reasonable

I all the evidence . It may arise from any part of the doubt' by using the phrases 'grave uncertainty,'Ievidence . It may arise from lack of evidence in 'actual substantial doubt ,' and 'moral certainty'

any case after a careful and impartial could have led a reasonable juror to interpret the

consideration of all of the case . That is what you instructions to allow a finding of guilt based on a'have got to look at is look at the evidence --all the degree of proof below that required by the Due

evidence that is presented to you in this case to Process Clause. Subsequently , the Court 'made it

determine whether or not the State has proven the clear that the proper inquiry is not whether thedefendant guilty beyond a reasonable doubt. You instruction "could have " been applied in an

don't find a person guilty of a criminal charge unconstitutional manner , but whether there is a

based on conjecture or suspicion or sunrise . On reasonable likelihood that the jury aid so apply it.'

the other hand though, you don't find a person not Victor v. Nebraska, 511 U.S. 1, 6, 1 14 S.Ct.

' guilty because of some vague or conjectural or'

1239, 1243, 127 L.Ed.2d 583 (1994) (quoting72 73 d 462i 502 U Sll M Gs burden is tofanciful doubt. Now the State , - , an n. ,e v. re, . .Este c u

prove the defendant guilty beyond a reasonable 112 S.Ct. 475, 482 and n. 4, 116 L.Ed.2d 385doubt . But the State does not have to prove him ( 1991), emphasis in original ). Thus, the'guilty beyond all doubt or beyond a shadow of a constitutional question presented here is whether

doubt or to a mathematical certainty . But the there is a reasonable likelihood that the juryState has to satisfy its burden by proving his guilt understood the instructions to allow thebeyond a reasonable doubt from the evidence in conviction based on proof insufficient to meet the

this case. Winship reasonable doubt standard. Victor v.

"I would simply say to you that proof beyond a Nebraska; Ex pcu•te Kirbv, 643 So.2d 587 (Ala.),

'reasonable doubt is proof of such a convincingcharacter that you will be willing to rely and act

cert. denied, [513] U.S . [ 1023], 115 S.Ct. 591,130 L.Ed.2d 504 (1994); Cox v. State, 660 So.2d

upon it without hesitation in the most important 233 (Ala.Cr.App. 1994).

of your *949 own affairs . So if you are "In reviewing the reasonable doubt instruction,

convinced by the evidence that the defendant has we do so in the context of the charge as a whole.

been - proven guilty of an offense beyond a Victor v. Nebraska: Baker- v. United States, 412

reasonable doubt , then you must find him guilty . F.2d 1069 (5th Cir . 1969), cert. denied, 396 U.S.On the other hand , if you are not convinced by 1018 , 90 S.Ct . 583, 24 L .Ed.2d 509 (1970);

' the evidence that he has been proven guilty Williams V. State, 538 So.2d 1250

beyond a reasonable doubt , then you must find (Ala.Cr.App . 1988). So long as the definition ofhim not guilty as you look at the charges in this 'reasonable doubt ' in the charge correctly conveys

case ."(R. 83-85 ). The appellant specifically contends

the concept of reasonable doubt , the charge willnot be considered so prejudicial as to mandate

that the instruction improperly lowered the State's reversal . Victor v . Nebraska ; Holland v. United

burden of proof. He did not present this issue to the States, 348 U . S. 121, 75 S . Ct. 127, 99 L . Ed. 150

trial court. Therefore , we review it for plain error . ( 1954)."Rule 45A, Ala. R.App. P. 686 So.2d at 459. " 'Use of some but not all of the

terminology found offensive in Cage does not

In Knotts v. State, 686 So.2d 431 (Ala.Cr.App.), automatically constitute reversible error.' " Taylor- v,

' opinion after remand, 686 So.2d 4846 l 1996

State, 666 So.2d 36, 56 (Ala.Cr.App.1994), affd,denied 516 U SAl 1995) rt2d 73666 S(A a. )(Ala.Cr.App.1995), atfd, 686 So.2d 48 , . .a. , ce .(o.


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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.

X1.

[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. Id.'"Ex parte Bank-head, 585 So.2d 1 1 2 (Ala.1991).Accord, Ex parse Siebert, 555 So 2d 780, 783-84(Ala.1989), cert. denied, [497] U.S. [1032], 110S.Ct. 3297, 111 L.Ed.2d 806 (1990); McElrov'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.), affd, 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 . Aultnuut 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 purseSiebert, 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." Ei parte Siebert, 555 So.2d780, 784 (Ala.1989), cert. denied, 497 U.S. 1032,110 S.Ct. 3297, 111 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 Ex parse 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.Ct.2694, 129 L.Ed.2d 825 (1994); Hanev v. State, 603So.2d 368 (Ala.Cr.App.199 I ), affd, 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 nor 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 tieadmission 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.

XII.

[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 Taylor 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 causebecause 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 657-58],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 parseNobis, 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] blanketdeclaration of support of or opposition to thedeath penalty is not necessary for a trial judge todisqualify a juror." Ex parte Yihiisenhant, 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 1 18 (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(1979) ]. 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 'With erspoon-excludables at issue here, arenot 'distinctive groups' for fair cross-sectionpurposes."" 'Lockhat7 v. McGee, 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 parte 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. Id. 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. MccCrav v. State,548 So.2d 573, 576 (Ala.Crim.App. 1988)."

Ev parte Holton, 590 So.2d 918, 919-20(Ala.1991).

" ' "The put-pose for requiring that the chain ofcustody be shown is to establish to a reasonableprobability that there has been no tampering withthe evidence ." Et- parte 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.Crim.App.1984).'11

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)." E.r parte 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. Slate, 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][84][85][86] .

Section 13A -5-40(a)(2), Ala.Code 1975, provides

that a murder committed "by [a] defendant during a

robbery in the first degree or an attempt thereofcommitted 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 dangerousinstrument; 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 commits 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 by13A-6-2( a)(1); and (3) that the murder wascommitted 'during ' the robbery or attempted

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robbery, i.e., that the murder was committed 'inthe course of or in connection with the

commission of, or in immediate flight from thecommission of the robbery or attempted robberyin the first degree, § 13A-5-39(2). Connally 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 intentional

killing. Davis v. State. 536 So.2d 110(Ala.Cr.App.1987); Ma,,wvood v. State, 494So.2d 124 (Ala.Cr.App.1985), affd, Ex parte

Magwood. 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. Thornas v. State, 460So.2d 207 (Ala.Cr.App.1983), affd, 460 So.2d216 (Ala. 1984)." 'As the Alabama Supreme Court held in Cobern

v. 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, seeBufford v. State, supra, O'Frv 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, 370So.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 (AIa.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.

Hallforcl v. State, 548 So.2d 526(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)."

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 inferencestherefrom , 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 parte

Bankston , 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.Roberson 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 aider 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.) He alsocontends that this "double counting" punished him

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twice for the same act, thus violating the Fourth,Fifth, Sixth, Eighth, and Fourteenth 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. 1115,115 S.Ct. 1973, 131 L.Ed.2d 862 (1995).

" 'This practice, known as "double counting" or"overlapping," has been upheld. Haney v. State,.603 So.2d 368 (Ala.Cr.App.1991), affd, 603So.2d 412 (AIa.1992), cert. denied, 507 U.S. 925,113 S.Ct. 1297, 122 L.Ed.2d 687•(1993); Kuenzei[v. State. 577 So.2d 474, 489 (Ala.Cr.App.1990),

affd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S.886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991) 1" 'Section 13A-5-50, Code of Alabama 1975,states , in part, as follows:" ' "The fact that a particular capital offense asdefined in section 13A- 5-40(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."" '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 Kenneth, 472So-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 aggravatingcircumstance for consideration by the jury in

recommending a sentence , does not constitute adenial of the guarantee against double jeopardy."

'Kuenael, 577 So.2d at 488, quotingFortenberry 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, 730

So.2d 1246 (Ala.1999); Ex parte Smith, 698 So.2d219 (Ala.), cert. denied, *960522 U.S. 957, 118S.Ct. 385, 139 L.Ed.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.Ct.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); Muv 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 l ), 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); Proffitt 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 andunusual punishments , the Court stated:"Punishments are cruel when they involve torture

or 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), affd in part, rev' d in unrelatedpart, 726 F.2d 1505 (11th 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 the

past 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 Kentmler [, 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. Spa=iano 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(A1a.Cr.App.1991), 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

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the appellate courts of this state. See, e.g., Evparte 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.1991). See also Er parte Giles,632 So.2d 577 (Ala.1993) (holding *963 that

Ala. Const. § 11 '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. State. 555 So.2d

196 (Ala.Cr.App.1988), affd, 555 So-2d 215(Ala.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.' Er 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 parse Jones. and we have chosen

not 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. Murry v. State, 455 So.2d 53(Ala.Cr.App.1983), rev'd on other grounds, 455So-2d 72 (Ala. 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.'"Clisbr• 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(b)(1), 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), affd. 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 (Ala.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.

APPENDIXTrial 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.

11. 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 individual 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 the 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. [FN5]

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, 683 So.2d 1027(Ala.Crim.App.1994'), affd, Ex parteWindsor. 683 So.2d 1042 (A1a.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 of

his 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 Indiana

I allow the sentencer--the trial judge--to override ornot accept the advisory verdict; however, unlike thestates of Florida and Indiana, neither the Alabama

IDeath Act nor Alabama case authority informs thetrial court how it is to consider the advisory verdict.[FN7]

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FN7. The holding in Roark v. State, 644N.E.2d 565 (Ind.1994), reh'g denied, ---N.E.2d ---- (Ind.1995), to 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 Martinez Chavez 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 of

Indiana 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 Jurv 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, the 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. "I 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 pointis 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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836 So.2d 915(Cite as : 836 So .2d 915)

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]

FN10. 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

Page 47

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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Westiaw..

836 So.2d 979(Cite as: 836 So .2d 979)

HSupreme 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, affirmed. 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.

A flirrned.

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

[11 Criminal Law X412.1(4)110k4l2.1(4) Most Cited Cases

Police officer's false statement to defendant that

Page I

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 X1144.121 l 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)I IOk1158(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.

[41 Criminal Law X412.1(1)I10k412.1(1) Most Cited Cases

141 Criminal Law '695.5I IOk695.5 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.

15] 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 X412.2(5)11Ok412.2(5) Most Cited Cases

Whether a Miranda waiver is voluntary, knowing,


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836 So.2d 979(Cite as: 836 So - 2d 979)

and intelligent depends on the particular facts andunderlying circumstances of each case, includingthe background, experience, and conduct of theaccused.

[7] Criminal Law X412(4)I10k412(4) Most Cited Cases

171 Criminal Law €695.5110k695.5 Most Cited Cases

The voluntariness of an inculpatory statementremains undetermined until the trial court hasexamined the totality of the circumstancessurrounding the statement.

181 Criminal Law E=4141 I0k414 Most Cited Cases

The trial court's finding that a statement wasvoluntary need only be supported by apreponderance of the evidence.

(91 Criminal Law X412.1(1)110k412.1(1) Most Cited Cases

(91 Criminal Law X520(1)110k520(l) Most Cited Cases

(91 Criminal Law X522(1)110k522(l) 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.

(101 Homicide €997203k997 Most Cited Cases(Formerly 203k163(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.

[11] Criminal Law €632(4)110k632(4) Most Cited Cases

Page 2

A motion in limine is the proper method by whichto prohibit the introduction of irrelevant evidence.

1121 Criminal Law X632(4)I10k632(4) Most Cited Cases

(121 Criminal Law X1153(1)110k1 153(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.


The test for relevancy is whether the evidence bearsany logical relationship to the ultimate inference forwhich it is offered.

1141 Sentencing and Punishment X1784(3)350Hkl784(3) Most Cited Cases

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.


The decision whether a particular mitigatingcircumstance is proven and the weight to be given itrests with the judge and the jury.

1161 Sentencing and Punishment X1789(10)350Hk1789(10) Most Cited Cases


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836 So.2d 979(Cite as: 836 So -2d 979)

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, see13A- 5-40(a)(2), Ala.Code 1975; the 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, see13A-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 l ] and remanded the case to the Court ofCriminal

FN I . Rule 39, Ala.R.App.P., was amendedeffective May 19, 2000, as todeath-penalty cases."The amendment removes the provision inthe 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

Page 3

notice any plain error or defect in theproceedings 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 . L°r parteJackson. 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 Bradley v. State, 494So.2d 750, 760-61 (Ala.Crim.App.1985), affd, 494So.2d 772 (AIa.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 1 (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.Crim.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

Crim.App. 1996). The voluntariness of an(Ala.inculpatory statement remains undetermined untilthe trial court has examined the totality of thecircumstances surrounding the statement. See Ex

parse Hill. 557 So.2d 838, 841 (Ala.1989).

436S384 U ,..FN2. Miranda v. Arizona,86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

' s finding that a statement was[8][9] The trial courtvoluntary 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 surrounding

the statement was free fromcircumstances ,inducement, 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 parse 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 or_incriminating statement involuntary." Ex parse Hill.

557 So.2d 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

Page 5 of 14

Page 4

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 Miranda

rights, 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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836 So.2d 979(Cite as: 836 So - 2d 979)

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 detennination of itsvoluntariness . See Frazier v. Cupp, 394 U.S.731[, 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

Page 5

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, 2001], 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."


I836 So.2d 979(Cite as : 836 So-2d 979)

Li

1111

1111111

I

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.

11.

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.

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814 (Ala,Crim.App.1986), 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, McElror'r 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.Brakefield, 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.

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 preventedhim 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 . Wilev v. State, 516 So.2d 812,

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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836 So.2d 979(Cite as : 836 So -2d 979)

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 thefirst 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 is

going 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.

First, Jackson contends that the trial court erred inconsidering his juvenile record in overriding the

jury's sentencing recommendation.

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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 Sold576, 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 no.significant history of prior criminal activity.13A-5-51(1). In fact, the trial court specificallystated 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. Ex parte

Davis. 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.

Jackson contends that the trial court improperlyconsidered his physical characteristics in


1

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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 . Murry 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 he 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 parse 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).

Page 8

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 (Fla.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"fill-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 toSlrcllito. Upon review of Shellito and of the trialcourt's sentencing order, we conclude that the trialcourt adopted only the analysis used in Shellito. 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 makean 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 July'srecommendation concerning sentenceshall be given consideration, it is notbinding upon the court."(Emphasis added.)

This Court in a- puree Apicella. 809 So.2d 865(Ala.2001), upheld the constitutionality of having a

Ijudge , not the jury, determine the punishment in acapital case. In Fa- porte Ta-vlor, 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, providedI sufficient 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 a

Ijury'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 is

I appropriate 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)

Page 9

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 imprisonment without parole is appropriate inthose circumstances where the trial court has

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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 in13A-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 Ex pane 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.

Page 10

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.

MOORS, C.J., and HOUSTON, SEE, BLOWN,HARWOOD, WOODALL, and STUART, JJ.,concur.

JOHNSTONE, J., concurs in pant, 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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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 lesser - included 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 affirming 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 ." Ex parte 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

Page 12

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 fired 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). Given

Jackson'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 following

the 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(§ 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 . Therefore, Irespectfully dissent from the judgment.

836 So.2d 979

END OF DOCUMENT

Page 13


LIN THE ALABAMA COURT OF CRIMINAL AP

NO. CK U Vol(


IN RE :


PETITIONER,

Vs.

STATE OF ALABAMA,

RESPONDENT.

FILEDis

OCT 2 0 2004

CLERKALA COURT CRIMINAL APPEALS

EXHIBITSFOR THE


TO THE HONORABLE TRACY S. MCCOOEY , CIRCUIT JUDGE,


Volume II of II

TROY KING

Attorney General

And

James R. Houts


Jeremy McIntire




ALABAMA STATE HOUSE





Petitioner,

v.

STATE OF ALABAMA,

Respondent.

Case No: CC-97-2300.60

STATE ' S MOTION FOR SUMMARY DISMISSAL OF THE CLAIMS IN

JACKSON ' S AMENDED RULE 32 PETITION THAT ARE PROCEDURALLY

BARRED FROM REVIEW PURSUANT TO RULE 32.2(a) 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

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 appeal . . .or

(5) which could have been but was not raised on

appeal . . . .

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 FAIR

TRIAL , DUE PROCESS , AND A RELIABLE SENTENCE

'This claim is unnumbered in Jackson's amended rule 32

petition.

2

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 VIOLATING

JACKSON'S FEDERAL AND STATE RIGHTS. Ala. R.

Crim. P. 32.2(a)(3) and (5). (paragraphs 164-

168)

Ground V : THE CLAIM THAT THE DEATH SENTENCE IN THIS CASE

IS DISPROPORTIONATE IN VIOLATION OF JACKSON'S

STATE AND FEDERAL RIGHTS . Ala. R . Crim. P.

32.2(a )( 3) and ( 4). (paragraphs 175-177)

Ground VI: THE CLAIM THAT THE TRIAL COURT COMMITTED

REVERSIBLE ERROR BY FAILING TO INSTRUCT THE

JURY ON THE LESSER INCLUDED OFFENSE OF ROBBERY.

Ala. R . Crim. 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. Crim. P.

32.2(a)(3) and (4). (paragraphs 186-187)

Ground IX(A): THE CLAIM THAT THE STATE IMPROPERLY OBTAINED

JACKSON'S CONVICTION BY UNCORROBORATED

ACCOMPLICE TESTIMONY. Ala. R. Crim. 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)

I

IGround X: THE CLAIM THAT THE STATE'S USE OF ITS

PEREMPTORY CHALLENGES DISCRIMINATED ON THE

3

^'i

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). (paragraphs

195-198)

' 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: 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)

Ground XV: 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). (paragraphs

207-209)

' 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 OF

THE ABOVE ERRORS ENTITLE JACKSON TO RELIEF.

Ala. R. Crim. P. 32.2(a)(3) and (4).

(paragraph 212)

4

4. Rule 32.7(d) of the Alabama Rules of Criminal

I Procedure provides, in relevant part, as follows:

If the court determines that the petition . .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 beserved by any further proceedings, the court

may either dismiss the petition or grant leave

to 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.


a A.4

)Ter y McIntireAssistant Attorney General

5


I hereby certify that on this ' day of 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,


Bryan A. Stevenson

Angela L. Setzer

Equal Justice Initiative of Alabama

122 Commerce Street

Montgomery, Al 36104

J emy McIntire


ADDRESS OF COUNSEL:


Capital Litigation DivisionAlabama State House

11 South Union StreetMontgomery, AL 36130-0152(334) 353-4014

6

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY , ALABAMA

SHONELLE ANDRE JACKSON, }

Petitioner,

v. )

STATE OF ALABAMA,

Respondent.

Case No: CC-97-2300.60

STATE ' S MOTION FOR SUMMARY DISMISSAL OF THOSE CLAIMS IN

JACKSON ' S AMENDED RULE 32 PETITION THAT ARE INSUFFICIENTLY

PLEADED UNDER RULES 32 . 3 AND 32.6(b ) OF THE ALABAMA RULES

OF CRIMINAL PROCEDURE



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:

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):

' The Claim That Jackson Was Denied The Effective



' Attorneys In Capital Cases . (Paragraphs 12-16 ) Ala. R.Crim . P. 32.2 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.

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.

by the trial court. Under Rule 32.7(d), Ala.R.Crim.P.,

this claim of ineffective assistance of counsel that is not



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/or

social 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

3



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. 32.2

and 32.6(b).

Jackson fails to state how he was prejudiced by trial

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

4

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).

Ground I (A) (2) (e) : The claim that trial counsel was


assistance of an expert on drug and

alcohol 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,


5




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).

6

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







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 remove

certain 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

7

jury expert would have assisted in voir dire. ("If the







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 certain

witnesses . (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

8

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.

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



9


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 . Crim. 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,





10

Ground III : THE CLAIM THAT THE STATE WITHHELD

FAVORABLE EVIDENCE FOR THE DEFENSE THUSE

VIOLATING JACKSON ' S FEDERAL AND STATE

RIGHTS . (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

m 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

11

exculpatory. All of Jackson' s Brad 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,





any facts tending to indicate how those acts or omissions

prejudiced his defense.").

CONCLUSION


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

12

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.

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).'


erem McIntire


2Any failure by the State to include a claim(s) subject todismissal under Ala. R. Crim. P. 32.3 and 32.6(b) is not

meant as a waiver of that ground.

13


I hereby certify that on this day of may, 2004, I


Petitioner, by placing the same in the United States Mail,


Bryan A. Stevenson


122 Commerce Street

Montgomery, Al 36104

rem W. McIntire


ADDRESS OF COUNSEL:


Capital Litigation DivisionAlabama State House11 South Union StreetMontgomery, AL 36130-0152

(334) 353-4014

14

r



Petitioner,

v.

STATE OF ALABAMA,

Respondent.

Case No : CC-97-2300.60

STATE ' S MOTION FOR SUMMARY DISMISSAL OF THE CLAIMS IN

JACKSON ' S AMENDED RULE 32 PETITION WHICH PRESENT NO

MATERIAL ISSUES OF FACT OR LAW UNDER ALABAMA RULE OF

CRIMINAL PROCEDURE 32.7(d)



dismiss those claims in Jackson ' s amended Rule 32 petition

for which there are no material issues of law or fact. In

support of this motion, the State of Alabama submits the

following:


Procedure provides that claims for which no material issues

of fact or law exist 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 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.

Ala. R. Crim. P. 32.7(d) ( emphasis added). Thus, where the

petitioner, as here, fails to plead a claim for which a

material issue of fact or law exists , the circuit court may

dismiss such claim without an evidentiary hearing. Fincher


2. The State relies on its Answer to Jackson's Rule

32 Petition; the trial transcripts; the Court of Criminal

Appeals's opinion on direct appeal, Jackson v. State, 836

So.2d 915 (Ala. Crim. App. 1999), and the Supreme Court of

Alabama's decision in Ex parte Jackson, 836 So.2d. 979

(Ala. 2002), to show that there are no material issues of

law or fact presented by the claims listed in this motion.

3. Insofar as the State relies on the Court of

Criminal Appeals' rejection of many underlying substantive

issues on direct appeal under a plain error analysis in

asking this Court to summarily dismiss many of Jackson's

ineffective assistance claims, the State cites Williams v.

State, 783 So. 2d 108, 133 (Ala. Crim. App. 2000). In

2

Williams, the Court of Criminal Appeals specifically held

' that "[a] finding of no manifest injustice under the "plain

error' standard on a direct appeal serves to establish a


assistance of counsel provided in Strickland." Id. at 133.

See also Callahan v. State, 767 So. 2d 380, 388 (Ala.

Crim. App. 1999); Dobyne v. State, 805 So. 2d 733, 744-46

1 (Ala. Crim. App. 2000). A Rule 32 petitioner cannot

' "relitigate" an underlying substantive issue already

' rejected on appeal by raising it "`under the guise of

ineffective assistance of counsel in a post-conviction

proceeding."' Id. (quoting State v. Clark, 913 S.W. 2d

' 399, 406 (Mo. Ct. App. 1996)).

' 4. The State also notes that some of the ineffective

assistance claims raised by Jackson are due to be dismissed

because the underlying issues are meritless. The State

relies on Thigpen v. State, 825 So. 2d 241, 245 (Ala. Crim.

App. 2001), for the proposition that counsel cannot be

ineffective for failing to raise a meritless argument.

5. As for the claims the State is moving to dismiss

on the basis that the record on appeal clearly shows the

claims are meritless, the State relies on Gibby_v.State,

3

753 So. 2d 1206, 1207-08 (Ala. Crim. App. 1999) (holding

that a postconviction claim that is refuted by the record

on direct appeal is without merit).

6. Listed below are the claims raised in Jackson's

Rule 32 petition that are subject to summary dismissal for

failure to plead a claim for which a material issue of law

or fact exists.




Attorneys In Capital Cases . (Paragraphs 12-16 ) Ala. R.

Crim . P. 32.7(d)

Ground I (A) (1) (a ) , (b) , (c) , and (d) :

The Claims That Counsel Was Ineffective

For Failing To Adequately Investigate The

State's Capital Murder Charge Against

Jackson . (Paragraphs 18-27 ) Ala. R.

Crim . P. 32.7(d)

Ground I (A) (2) (a) : The Claim That Counsel Was

Ineffective For Failing To Procure

The Assistance of a Firearm and

Projectile Expert . ( Paragraph 28-31)

Ala. R . Crim . P. 32.7(d)

Ground 1 (A) (2) (b) : The Claim That Counsel Was


The Assistance of an Expert on

Eyewitness Identifications.

(Paragraph 32-34) Ala. R . Crim. P.

32.7(d)

Ground 1(A) (2) (c) : The Claim That Counsel Was


The Assistance of an Investigator

4

and/or Social Worker. (Only as to

the claim that they would have

assisted in challenging the

admissibility of Jackson's

Statements ) (Paragraph 35) Ala. R.

Crim. P. 32.7(d)

Ground I (A) (3) (a) : The Claim That Counsel Was IneffectiveFor Failing To Timely File a YouthfulOffender Report. (paragraphs 39-40) Ala.

R. Crim. P. 32.7(d)

Ground I (A) (3) (c) : The Claim That Trial Counsel Was

Ineffective For Conceding Guilt Before

The Trial Court. (paragraphs 42) Ala. R.

Crim. P. 32.7(d)

Ground I (A) (3) (d) : The Claim That Counsel Was Ineffective

For Shifting The Burden Of Proof During

Jury Selection. (paragraphs 43-45) Ala.

R. Crim. P. 32.7(d)

Ground I (A) (3) (f) : The Claim That Counsel Was Ineffective

For Failing To Object To The State's

Challenges For Cause. (paragraphs 48)

Ala. R. Crim. P. 32.7(d)

Ground I (A) (3) (g) : The Claim That Counsel Was Ineffective

For Failing To Adequately Raise And Argue

Batson And J.E.B. Objections. (paragraphs

49-51) Ala. R. Crim. P. 32.7(d)

' Ground I (A) (3) (i) : The Claim That Counsel Was Ineffective

For Failing To Challenge The

Voluntariness Of Jackson's Statements In

' Front Of The Jury. (paragraphs 56-57)

Ala. R. Crim. P. 32.7(d)

Ground I (A) (3) (j) : The Claim That Counsel Was IneffectiveFor Failing To Challenge The State's

' Expert Ballistic Evidence. (paragraphs

58) Ala. R. Crim. P. 32.7(d)

i-I5

IGround I (A) (3) (k ) : The Claim That Counsel Was Ineffective

For Failing To Object To Irrelevant And

Prejudicial Evidence . (paragraphs 59)

Ala. R . Crim . P. 32.7(d)

Ground I (A) (3) (1 ) : The Claim That Counsel Was Ineffective

For Failing To Object To Evidence Without

The Proper Chain Of Custody . (paragraphs

59) Ala . R. Crim . P. 32.7(d)

' Ground I (A) (3) (m) : The Claim That Counsel Was Ineffective

For Failing To Present A Viable Defense

Theory . (paragraphs 60-64 ) Ala. R. Crim.

' P. 32.7(d)

Ground I (A) (3) (n ) : The Claim That Counsel Was Ineffective

For Failing To Give An Adequate Closing

Statement. (paragraphs 62-64 ) Ala. R.

Crim . P. 32.7(d)

Ground I (A)(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 Sue Sponte.

(Paragraph 66) Ala . R. Crim . P. 32.7(d)

Ground I(A)(5): The Claim That Counsel Was Ineffective

For Failing To Object To The Trial

Court ' s Leaving The Courtroom While The

Jury Watched Jackson ' s Videotaped

Statement To Police . (Paragraph 67) Ala.

R. Crim. P. 32.7(d)

Ground I (A)(6): The Claim That Counsel Was Ineffective

For Failing To Object To The Trial

' Court ' s Instruction On Reasonable Doubt.

(Paragraph 68) Ala. R. Crim . P. 32.7(d)

' Ground I(A)(7): The Claim That Counsel Was Ineffective

For Failing To Insure That The Jury Was

Instructed About The Accomplice

1i ^ fi

Corroboration Requirement . ( Paragraphs

69-70 ) Ala. R . Crim . P. 32.7(d)

Ground I (A)(8): The Claim That The Cumulative Effect Of

Counsel's Ineffective Performance At The

Guilt Phase Denied Jackson The Right To

The Effective Assistance Of Counsel.

(Paragraph 71) Ala. R. Crim . P. 32.7(d)

Ground I(B)(4): The Claim That Counsel Was Ineffective

For Failing To Object To Alabama's Method

Of Execution As Cruel And Unusual

Punishment . .(Paragraph 147) Ala. R.

Crim. P. 32.7(d)

Ground I(B)(5): The Claim That Counsel Was Ineffective

For Failing To Object To Double Counting

Robbery As An Element Of The Capital

Offense And As An Aggravating

Circumstance . (Paragraph 148) Ala. R.

Crim . P. 32.7(d)

Ground I (B)(6): The Claim That Counsel Was Ineffective

For Failing To Object To The Death

Penalty In This Case As Disproportionate.

(Paragraph 149).Ala . R. Crim . P. 32.7(d)

Ground I(B)(7): The Claim That The Cumulative Effect Of

Counsels ' Ineffective Performance At The

Penalty And Sentencing Phases Denied

Jackson The Right To The Effective

Assistance Of Counsel . ( Paragraph 150)

Ala. R. Crim. P. 32.7(d))

Ground 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 . (Paragraph 156) Ala . R. Crim.

P. 32.7(d)

Ground III: The Claim That The State Withheld Favorable

Evidence From The Defense Thus Violating

Jackson ' s Federal And State Rights.

(Paragraphs 164-168) Ala. R. Crim . P. 32.7(d)

7

1

Ground XVII: The Claim That Alabama 's Manner Of

Execution Constitutes Cruel And Unusual

Punishment . (Paragraphs 210-211) Ala. R.

Crim. P. 32.7(d)

7. The State, therefore, respectfully requests that

this Honorable Court summarily dismiss, without an

evidentiary hearing, the above-cited claims made in

Jackson's amended Rule 32 petition which present no

material issues of fact or law.'


b,e,WzVV?;2,,-L-erem McIntire


'Any failure by the State to include a claim(s) subject to

dismissal under Ala. R. Crim. P. 32.7(d) is not meant as a

waiver of that ground.

8


I hereby certify that on this gjl, day of May , 2004, I


Petitioner, by placing the same in the United, States Mail,


Bryan A. Stevenson

Angela L. Setzer


122 Commerce StreetMontgomery, Al 36104

ere W. McIntire


ADDRESS OF COUNSEL:



Alabama State House11 South Union StreetMontgomery , AL 36130-0152

(334) 353-4014

9

I '.I IN THE FIFTEENTH JUDICIAL CIRCUIT COURT,

MONTGOMERY COUNTY, ALABAMA

*

SHONELLE ANDRE JACKSON,*

Petitioner,*

V. **

STATE OF ALABAMA,*

Respondent.*

Case No. 97-2300.60

MOTION FOR DISCOVERY OF INSTITUTIONALRECORDS, FILES, AND INFORMATION NECESSARY

TO A FAIR RULE 32 EVIDENTIARY HEARING

Petitioner Shonelle Andre Jackson respectfully moves this Court to order that he is

entitled to discovery of institutional records, files and information necessary to a fair Rule

32 evidentiary hearing:

1. In 1998 , Mr. Jackson was found guilty of capital murder and sentenced to

death, despite a unanimous jury verdict sentencing him to life without the possibility of

parole, in the Montgomery County Circuit Court. Mr. Jackson is now before this Court

seeking relief from his unconstitutionally obtained capital conviction and death sentenced

pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.

2. Alabama courts have recognized that "[t]he hovering death penalty is the

special circumstance justifying broader discovery in capital cases ." Ex parte Monk, 557 So.

I ,2d 832, 836-37 (Ala. 1989); see also Johnson v. Mississi i, 486 U.S. 578, 584 (1988) ("The

fundamental respect for humanity underlying the Eighth Amendment's prohibition against

cruel and unusual punishment gives rise to a special `need for reliability in the determination

that death is the appropriate punishment."') (quoting Gardner v. Florida, 430 U.S. 349,363-

364 (1977) (quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1975))).

3. Mr. Jackson specifically relief on Ex parte Land, 775 So. 2d 847, 852 (Ala.

2000), in which the Alabama Supreme Court granted the petitioner's mandamus petition and

ordered that the petitioner was entitled to postconviction discovery to support claims which,

1 if proven true, would entitle the petitioner to relief.

4. Mr. Jackson has alleged that his trial lawyers were ineffective for failing to

investigate and present evidence at both the guilt and penalty phases of his trial, as well as

failing to investigate, develop and present significant mitigating evidence at the penalty phase

of his trial. In order to succeed on these claims, Mr. Jackson is required to prove that his

lawyers 's performance was deficient and that the deficient perfonnance prejudiced him. See

I Strickland v. Washington, 466 U.S. 668 (1984). As the Alabama Supreme Court recognized

in Land, it will be

practically impossible for [Mr. Jackson] to show that he sufferedprejudice from the deficient performance of his counsel unlesshe could show the trial court that mitigating evidence (which hehas a reasonable basis to believe in fact exists) existed at the

time of his trial and then argue, on the basis of that evidence,that a "reasonable probability" exists that a jury hearing theevidence would have recommended life imprisonment without

r parole.

11)

1

I .

I Land, 775 So. 2d at 855.

5. Pursuant to Rules 16 and 32 of the Alabama Rules of Criminal Procedure, the

Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1,

§§1, 5, 6, 7, 13 and 15 of the Alabama Constitution , Petitioner Shonelle Andre Jackson

hereby moves this Court to order the production of the materials specified below. See also

Ex parte Monk, 557 So. 2d 832 (Ala. 1989) (capital cases are sufficiently different to justify

broadened discovery); Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Maryland, 360 U.S.

264 (1959); Giles v. Ma land, 386 U.S. 66 (1967); Davis v. Alaska, 415 U.S. 308 (1974);

Kyles v. Whit, 514 U.S. )) (1995); United States v. Pitt, 717 F.2d 1334 (11th Cir . 1983).

6. Pursuant to Rule 16.3 of the Alabama Rules of Criminal Procedure, each

request is continuing in nature and additional responsive documents that are obtained or

discovered prior to the evidentiary hearing should be produced as soon as they are obtained

or discovered . Ala. R. Crim . P. 16.3; see also Pad gett v . State, 668 So. 2d 78 98 (Ala. Crim.

App. 1995) (defendant's capital conviction reversed where prosecution delayed four days in

disclosing exculpatory blood type evidence to defense where evidence would have been

critical to cross-examination of state ' s witnesses); Ex parte Brown, 548 So . 2d 993 (Ala.

1989) (state's failure to make timely disclosure of defendant's clothing and birth certificate,

both of which were introduced against him at trial violated prosecution's continuing duty to

produce discoverable information ); Peal v . State , 491 So . 2d 991 (Ala. Crim. App.

1985)(state's failure to disclose defendant's tape-recorded statement violated the continuing

1I duty to disclose under Rule 16.3).

7. Petitioner further moves that if any document responsive to a request was, but

no longer is in the State's possession, custody or control that this Court order the State to

declare whether such document is missing or lost, has been destroyed, has been transferred

to others, or has otherwise been disposed. If any document or portion of any document

covered by these requests is withheld from production, the State should furnish a list

identifying each such document or portion

1. INSTITUTIONAL RECORDS TO BE PRODUCED

8. Mr. Jackson respe silly requests that this Court order that he be granted leave

to inspect , copy and photograph the following records:

A.

9. Any and all records pertaining to Louis Wendell Taylor ' generated or

maintained by the Alabama Department of Corrections, including but not limited to all

intake , assessment, institutional, personal , disciplinary, medical, psychological, psychiatric

and mental health records, and any other records generated or maintained by any prison,

medical facility or provider, or any other entity associated with the Alabama Department

Corrections , including but not limited to Holman Prison , Kilby Correctional Facility

Easterling Correctional Facility, Taylor Hardin Secure Medical Facility, and Bryce Medical

I Facility.

1 1 Louis Wendell Taylor is petitioner Shonelle Jackson's father.

114

111I

10. All records pertaining to Louis Wendell Taylor generated or maintained by any

and all medical provider or contractor for medical and/or psychiatric services to the Alabama

Baptist Health Care, Corning Clinical Laboratories, and Cahaba Imaging P.C.

Department of Corrections including , but not limited to Correctional Medical Services,

11. Mr. Jackson's Rule 32 petition contains allegations that his trial counsel were

11111

1111J

ineffective for filing to investigate, develop and present mitigating evidence during the

penalty and sentencing phases of his trial. Mr. Jackson has alleged that his trial counsel were

ineffective for failing to present critical mitigating evidence about Mr. Jackson's childhood,

which was "marked by extreme instability, absence of a father figure, violence, drugs, and

alcohol ." Amended Petition for Relief from Judgment Pursuant to Rule 32 ofthe Alabama

Rules of Criminal Procedure at 38 ; Petition for Relieffrom Judgment Pursuant to Rule 32

of the Alabama Rules of Criminal Procedure at 25. Specifically, Mr. Jackson has all

that testimony from various witnesses, "as well as court and correctional records, would have

established that Mr. Jackson's 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 ." Amended Petition far Relieffrom Judgment Pursuant to Rule

32 of the Alabama Rules of Criminal Procedure at 38-39; Petition at 25.

12. Mr. Louis Taylor has a documented history of prior felony convictions which

resulted in his incarceration in the Alabama Department of Corrections, including one

offense which resulted in at least a two-year sentence . Department of Corrections records

5

of Louis Taylor are necessary for Mr. Jackson to prove that he was prejudiced by trial

counsel ' s deficient performance in this regard . See Wiggins v. Smith, 123 S.Ct. 2527, 2542

(2003)(counsel ineffective for failing to investigate and present evidence of client's "troubled

history" including abuse, neglectful parenting and diminished mental capacities).

13. In Land, the Alabama Supreme Court recognized that "trial counsel may be

found ineffective for failing to present evidence of adjustment to incarceration, evidence of

mental-health problems, and evidence regarding the defendant's contact with a juvenile

system," and thus found "good cause" for discovery of precisely these types of records. See

Land, 775 So. 2d at 854. Without discovery of the Department of Corrections records of

Louis Taylor, Mr. Jackson will be unable to prove his claims of ineffective assistance of

counsel.

B. Jail Records

14. Any and all records pertaining to Louis Wendell Taylor generated or

maintained by the Montgomery County Detention Facility, and any and all records pertaining

to Louis Wendell Taylor and/or Shonelle Andre Jackson generated or maintained by the

Montgomery City Jail, including but not limited to all intake , assessment , institutional,

personal, disciplinary, medical, psychological, psychiatric and mental health records, and any

other records generated or maintained by any prison, medical facility or provider, or any

other entity associated with the Montgomery County Detention Facility and the Montgomery

City Jail.

6

15. All records pertaining to Louis Taylor generated or maintained by any medical

provider or contractor for medical and/or psychiatric and/or mental health services at the

Montgomery County Detention Facility and all records pertaining to Shonelle Andre Jackson

and/or Louis Taylor generated or maintained by any medical provider or contractor for

medical and/or psychiatric and/or mental health services at the Montgomery City Jail.

16. Louis Taylor, Shonelle Jackson ' s father , has been arrested on several occasions

by the City of Montgomery for different offenses and has spent time in the Montgomery City

Jail, as well as serving time in the Montgomery County Detention Facility. Additionally,

Shonelle Jackson has been arrest on several occasions , and has served time at the

Montgomery City Jail.

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

present critical mitigating evidence about Mr. Jackson's childhood, which was "marked by

extreme instability , absence of a father figure , violence, drugs , and alcohol ." Amended

Petition for Relief from Judgment Pursuant to Rule 32 of the Alabama Rules of Criminal

Procedure at 38; Petition for Relief from Judgment Pursuant to Rule 32 of the Alabama

Rules of Criminal Procedure at 25. Specifically, Mr. Jackson has alleged that testimony

from various witnesses, "as well as court and correctional records, would have established

that Mr. Jackson's 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 ." Amended Petition for Relief from Judgment Pursuant to Rule 32 of the

7

Alabama Rules of Criminal Procedure at 38-39; Petition at 25 . Such evidence is

undoubtedly mitigating and as such, city and county correctional records of Louis Taylor are

necessary for Mr. Jackson to prove that he was prejudiced by trial counsel ' s deficient

perfonnance in this regard . See Wiggins, 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).

18. Additionally, Mr. Jackson has alleged that "[i]n addition to a life of instability,

and the resulting emotional trauma, Mr. Jackson has consistently struggled with diminished

mental capacity," but that "he has always been a hard worker who has always done well in

structured environments, such as correctional facilities." Amended Petition at 42, 44;

Petition, at 26-27. Such evidence is undoubtedly mitigating and as such, city and

correctional records are necessary for Mr. Jackson to prove that he was prejudiced by trial

counsel ' s deficient perfonnance in this regard . See Wiggins, 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).

19. As in Land, Mr. Jackson has alleged facts, which, if proven true , would entitle

him to relief. See Land, 775 So. 2d at 854 ("trial counsel may be found ineffective for failing

to present evidence of adjustment to incarceration"). Without these records, Mr. Jackson will

be unable to prove his claims of ineffective assistance of counsel. See Land, 775 So. 2d at

852 (finding that "good cause" had been shown for the discovery of petitioner's j all records).

8

it

1111F1111111

C. Mental Health Records

20. Any and all medical , psychological, psychiatric or mental health records of any

kind generated or maintained by any hospital , psychological , psychiatric or mental health

facility of any kind pertaining to Shonelle Andre Jackson and/or his mother, Marilyn Jackson,

including but not limited to the Alabama Department of Mental Health and Mental

Retardation, Alabama Department of Rehabilitation , Taylor Hardin Secure Medical Facility,

and Bryce Medical Facility; as well as any records generated or maintained by any

physicians, psychologist, psychiatrist, medical or mental health provider of any kind.

21. Mr. Jackson has asserted that he is mentally retarded, and therefore exempt

from execution. Atkins v. Virginia, 536 U.S. 304 (2002). Mr. Jackson was diagnosed as

borderline mentally retarded by the Department of Youth Services at age 15. These results

are confirmed by testing results from the Department of Corrections. Additionally,

investigation reveals that Mr. Jackson's mother, Marilyn Jackson, resided at the Elks

Memorial Center in Chisholm, Alabama , through the State Department of Mental Health

and/or the State Department of Rehabilitation. Familial biomedical history is critical to the

etiology ofmental retardation in a particular individual . See Mental Retardation: Definition,

Classification, and Systems of Supports, American Association on Mental Retardation, 10`h

ed. 2002, at 123-41. Such information is thus critical to Mr. Jackson's ability to prove his

claim . The Land Court found "good cause" for precisely this type of discovery.' Land, 775

So. 2d at 852.

9

D. Records of the Alabama Board of Pardons and Paroles

22. Any and all documents generated or maintained by the Alabama Board of

Pardons and Paroles pertaining to Shonelle Andre Jackson and/or Louis Wendell Taylor.

23. In his Rule 32 petition, Mr. Jackson has alleged that trial counsel were

ineffective for failing to investigate and present evidence at the penalty phase of Mr.

Jackson's trial about his diminished mental capacity, as well as evidence surrounding his

prior contacts with the criminal justice system. Mr. Jackson has alleged that his trial counsel

were ineffective for failing to present critical mitigating evidence about Mr. Jackson's

childhood, which was "marked by extreme instability, absence of a father figure, violence,

drugs, and alcohol." Amended Petitionfor Relief from Judgment Pursuant to Rule 32 of the

Alabama Rules of Criminal Procedure at 38 ; Petition for Relief from Judgment Pursuant to

Rule 32 of the Alabama Rules of Criminal Procedure at 25. Specifically, Mr. Jackson has

alleged that testimony from various witnesses, "as well as court and correctional records,

would have established that Mr. Jackson's father Louis Taylor, was chronically imr)risoned

when Shonelle was young , and even when not incarcerated , was usually either using drugs

and alcohol or was simply absent ." Amended Petition for Relieffrom Judgment Pursuant to

Rule 32 of the Alabama Rules of Criminal Procedure at 3 8-39; Petition at 25. Such evidence

is undoubtedly mitigating and as such , city and county correctional records of Louis Taylor

are necessary for Mr. Jackson to prove that he was prejudiced by trial counsel's deficient

performance in this regard . See Wiggins , 123 S. Ct. at 2542 (counsel ineffective for failing

10

to investigate and present evidence of client's "troubled history" including abuse, neglectful

parenting and diminished mental capacities).

24. The Alabama Supreme Court found "good cause" for precisely these types of

records in Land. See Land, 775 So. 2d at 854 ("trial counsel may be found ineffective for

failing to present evidence of adjustment to incarceration, evidence of mental health

problems, and evidence regarding the defendant's contact with the juvenile system."). As

such, these records are necessary to Mr. Jackson's ability to prove the allegations in his

petition.

E. Records of the Alabama De partment of Human Resources

25. Any and all records pertaining to Shonelle Andre Jackson generated or

maintained by the Alabama Department of Human Resources, including any sub-agency or

department that operates within or in conjunction with the Alabama Department of Human

Resources, specifically its branch in Montgomery County, Alabama.

26. Mr. Jackson's Rule 32 petition alleges that his trial counsel were ineffective

in part because they failed to investigate, develop and present evidence about his parents

heavy drug use, which not only "created an unstable homelife, but contributed to Mr.

Jackson ' s impaired mental and emotional development." Amended Petition, at 37; Petition

at 25 . Trial counsel should have investigated into the circumstances of Mr. Jackson's

upbringing , including the "neglect " that he and his siblings suffered from, as well as the

"impoverished home" in which they grew up. Amended Petition, at 40; Petition at 25.

11

27. Evidence of this neglect and poverty , as well as the Mr. Jackson ' s family's

resulting inability to deal with his mental impairments is likely contained in the records

maintained by the Alabama Department of Human Resources . This type of evidence is

undoubtedly mitigating . See Williams v. Taylor, 529 U.S. 362, 419 (2000)( counsel found

ineffective for, among other things, failing to procure defendant's social services record

documenting his "nightmarish childhood "); Blanco v . Singletary, 943 F.2d 1477 (11th Cir.

1991) (counsel never presented mitigating including evidence of childhood poverty, organic

brain damage , and depressive behavior); Armstrong v. Duper, 833 F .2d 1430 (11th Cir.

1987) (writ issued where counsel failed to investigate and present, among other things,

evidence of petitioner ' s childhood poverty).

28. All of these files were available at the time of Mr. Jackson' s trial , and his trial

counsel's failure to uncover these records and present them at the penalty phase of his trial

constitutes ineffectiveness. Without access to the information contained in the Department

of Human Resources's files, however, Mr. Jackson will be unable to prove his claims of

ineffective assistance of counsel. See Land, 775 So. 2d at 854 ("[u]ntil the documents are

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

circumstances.")

F. Police and Sheriff Department Records

29. Any and all arrest records and/or incident reports pertaining to Shonelle Andre

Jackson generated or maintained by the Montgomery Police Department, and/or the

12

Montgomery County Sheriff s Department including but not limited to records of arrests that

occurred after 1990, specifically including, but not limited to, arrests occurring on the

following dates: October 1, 1990, December 3, 1991, March 1, 1992, September 10, 1992,

February 21, 1994, April 19, 1993, June 9, 1995, August, 13, 1995, August 8, 1995,

September 6, 1995, December 12, 1995, June 30, 1996, September 18, 1996, and September

' 20, 1996.

30. Mr. Jackson additionally requests any and all arrest records and/or incident

reports pertaining to Louis Wendell Taylor generated or maintained by the Montgomery

Police Department and/or the Montgomery County Sheriff's Department.' lice D

r 31. In his Rule 32 petition, Mr. Jackson has alleged that trial counsel were

ineffective for failing to investigate and present evidence of his mental impairments, as well

as his history of alcohol and drug dependence. Evidence of alcoholism and drug addiction,

especially as it relates to mental health problems, is mitigating evidence. See Parker v..^.

Dugger, 498 U.S. 308, 314 (1991). Additionally, Mr. Jackson's petition contains allegations

that his trial counsel were ineffective for failing to present evidence of "his parents' drug use

and his father's absence," which would establish that "Mr. Jackson and his siblings suffered

from neglect; they grew up in an impoverished home and were not properly cared for.

Amended Petition, at 40; Petition, at 26.

32. Evidence of Mr. Jackson's prior arrests, some of which involved drugs, was

critical to documenting the extent to which Mr. Jackson's drug and alcohol use has

1 13

11

detrimentally affected his life. Evidence of his father's arrests and documentation of the

violence in the community in which Shonelle Jackson grew up is critical to documenting the

impoverished and neglectful environment in which Shonelle Jackson was raised. All of these

files were available to Mr. Jackson's counsel at the time of his trial, and without such

evidence, Mr. Jackson will be unable to prove his ineffectiveness claims. See Land, 775 So.

2d at 855.

II. CONCLUSION

33. In his Rule 32 petition, Mr. Jackson has alleged facts, which, if proven true,

would entitle him to relief. As such, there is "good cause" for the discovery of the

aforementioned files , records and information . See Land, 775 So. 2d at 852 ("to obtain

discovery, a petitioner must allege facts that, if proved, would entitle him to relief.")

FOR THESE REASONS, Mr. Jackson respectfully requests that this Court order the

production of the foregoing materials.

Dated : April 1, 2004

Res ctfully Submitted,

6/

BryA. StevensonAngela L . SetzerEqual Justice Initiative of Alabama122 Commerce StreeetMontgomery , AL 36104(334) 269-1803

Counselfor Mr. Jackson

14


I certify that on April 1, 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

A ela L. Setzer

15



Petitioner,*

V.*

STATE OF ALABAMA,*

Respondent.*

Case No. 97-2300.60

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THEPOSSESSION OF ALABAMA THE DEPARTMENT OF CORRECTIONS

Upon consideration of Petitioner's Motion for Discovery of Institutional Records in

the possession of the Alabama Department of Corrections, the Motion is hereby

GRANTED.

The Court ORDERS that the Alabama Department of Corrections shall produce for

inspection and copying to counsel for Petitioner or their designated agents any and all

records, files and materials pertaining to Louis Wendell Taylor, wherever such documents

may be located, with such production to be arranged within thirty days from the date of this

order.

DONE and ORDERED this the day of 2004.

Tracy McCooey, Circuit Judge


*


Petitioner,*

V.

STATE OF ALABAMA,

Respondent.*

Case No. 97-2300.60

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THEPOSSESSION OF MONTGOMERY COUNTY DETENTION FACILITY

Upon consideration of Petitioner ' s Motion for Discovery of Institutional Records in

the possession of the Montgomery County Detention Facility, the Motion is hereby

GRANTED.

The Court ORDERS that the Montgomery County Detention Facility shall produce

for inspection and copying to counsel for Petitioner or their designated agents any and all

records, files and materials pertaining to Louis Wendell Taylor, wherever such documents

may be located , with such production to be arranged within thirty days from the date of this

order.




*


Petitioner,*

V.*

STATE OF ALABAMA,*

Respondent.*

Case No. 97-2300.60

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THEPOSSESSION OF MONTGOMERY CITY JAIL


the possession of the Montgomery City Jail, the Motion is hereby GRANTED.

The Court ORDERS that the Montgomery City Jail shall produce for inspection and

copying to counsel for Petitioner or their designated agents any and all records, files and

materials pertaining to Shonelle Andre Jackson and/or Louis Wendell Taylor, wherever such

documents may be located, with such production to be arranged within thirty days from the

date of this order.




*


Petitioner,*

V.*

STATE OF ALABAMA,

Respondent.*

Case No. 97-2300.60

ORDER GRANTING DISCOVERY OF MENTAL HEALTH RECORDS

Upon consideration of Petitioner's Motion for Discovery of Mental Health Records,

the Motion is hereby GRANTED. The Court ORDERS that the Alabama Department of

Mental Health and Mental Retardation , Alabama Department of Rehabilitation , Taylor

Hardin Secure Medical Facility, and Bryce Medical Facility, as well as any physicians,

psychologist, psychiatrist, medical or mental health provider of any kind shall produce for


medical, psychological, psychiatric or mental health records of any kind generated or

maintained by any hospital, psychological, psychiatric or mental health facility of any kind

pertaining to Shonelle Andre Jackson and/or his mother, Marilyn Jackson.




*


Petitioner,*

V.*

STATE OF ALABAMA,*

Respondent.*

Case No. 97-2300.60

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THEPOSSESSION OF ALABAMA BOARD OF PARDONS AND PAROLES


the possession of the Alabama Board of Pardons and Paroles , the Motion is hereby

GRANTED.

The Court ORDERS that the Alabama Board of Pardons and Paroles shall produce

for inspection and copying to counsel for Petitioner or their designated agents any and all

records , files and materials pertaining to Shonelle Andre Jackson and/or Louis Wendell

Taylor, wherever such documents may be located, with such production to be arranged within

thirty days from the date of this order.




*


Petitioner,*

V.*

STATE OF ALABAMA,*

Respondent.*

Case No. 97-2300.60

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THEPOSSESSION OF THE ALABAMA DEPARTMENT OF HUMAN RESOURCES


the possession of the Alabama Department of Human Resources, the Motion is hereby

GRANTED. The Court ORDERS that the Alabama Department of Corrections shall

produce for inspection and copying to counsel for Petitioner or their designated agents any

and all records pertaining to Shonelle Andre Jackson generated or maintained by the

Alabama Department of Human Resources, including any sub-agency or department that

operates within or in conjunction with the Alabama Department of Human Resources,

specifically its branch in Montgomery County, Alabama.

DONE and ORDERED this the day of , 2004.



*


Petitioner,*

V.*

STATE OF ALABAMA,*

Respondent.*

Case No. 97-2300.60

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THEPOSSESSION OF MONTGOMERY POLICE DEPARTMENT

Upon consideration of Petitioner ' s Motion for Discovery of Institutional Records in

the possession of the Montgomery Police Department, the Motion is hereby GRANTED.

The Court ORDERS that the Montgomery Police Department shall produce for


records, files and materials pertaining to Shonelle Andre Jackson and/or Louis Wendell

Taylor, wherever such documents may be located, with such production to be arranged within

thirty days from the date of this order.




*


Petitioner,*

V.*

STATE OF ALABAMA,

Respondent.*

Case No. 97-2300.60

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THEPOSSESSION OF MONTGOMERY COUNTY SHERIFF'S DEPARTMENT


the possession of the Montgomery Police Department, the Motion is hereby GRANTED.

The Court ORDERS that the Montgomery County Sheriffs Department shall

produce for inspection and copying to counsel for Petitioner or their designated agents any

and all records, files and materials pertaining to Shonelle Andre Jackson and/or Louis

Wendell Taylor, wherever such documents may be located, with such production to be

arranged within thirty days from the date of this order.





Petitioner,*

V.*

STATE OF ALABAMA,*

Respondent.*

Case No. CC-97-2300.60

MOTION FOR DISCOVERY OF PROSECUTIONFILES , RECORDS, AND INFORMATION NECESSARY

TO A FAIR RULE 32 EVIDENTIARY HEARING

Petitioner Shonelle Jackson respectfully moves this Court to order that he is entitled

to discovery of prosecution files, records and information necessary to a fair Rule 32

evidentiary hearing:

1. This is a death penalty case . In 1998, Mr. Jackson was found guilty of capital

murder and sentenced to death, despite ',sunaninuw& ife.ye ct, in the Montgomery

County Circuit Court. Mr. Jackson is now before this Court seeking relief from his

unconstitutionally obtained capital conviction and death sentence pursuant to Rule 32 of the

Alabama Rules of Criminal Procedure.

2. Alabama courts have recognized that "[t)he hovering death penalty is the

special circumstance justifying broader discovery in capital cases." Ex parte Monk, 557 So.

11111

2d832,836-37 (Ala. 1989); see also Johnson v. Mississippi, 486 U.S. 578, 584 (1988) ("The

fundamental respect for humanity underlying the Eighth Amendment's prohibition against

cruel and unusual punishment gives rise to a special `need for reliability in the determination

that death is the appropriate punishment."') (quoting Gardner v. Florida, 430 U.S. 349, 363-

364 (1977) (quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1975))).

3. In support of this motion, Mr. Jackson relies specifically on Ex parte Land, 775

So. 2d 847, 852 (Ala. 2000), in which the Alabama Supreme Court granted a Rule 32

petitioner's mandamus petition and directed the trial court to grant discovery in

postconviction proceedings for claims on which the petitioner would be entitled to relief if

the allegations in his petition were proven true. Petitioner makes this motion pursuant to

Rules 16 and 32 of the Alabama Rules of Criminal Procedure, the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution, the corresponding portions of the

Alabama Constitution and state and federal law.

4. Pursuant to Rule 16.3 of the Alabama Rules of Criminal Procedure, each

request is continuing in nature and additional responsive documents that are obtained or

discovered prior to the evidentiary hearing should be produced as soon as they are obtained

or discovered. Ala. R. Crim. P. 16.3; see also Padgett v. State, 668 So. 2d 78 98 (Ala. Crim.

App. 1995) (defendant ' s capital conviction reversed where prosecution delayed four days in

disclosing exculpatory blood type evidence to defense where evidence would have been

critical to cross-examination of state's witnesses); Ex oarte Brown, 548 So. 2d 993 (Ala.

2

11 ^1

111

1989) (state ' s failure to make timely disclosure of defendant' s clothing and birth certificate,

both of which were introduced against him at trial violated prosecution's continuing duty to

produce discoverable information ); Peal v . State , 491 So . 2d 991 (Ala. Crim. App.

1985)(state's failure to disclose defendant's tape-recorded statement violated the continuing

duty to disclose under Rule 16.3).

5. Petitioner further moves that if any document responsive to a request was, but

no longer is in the State ' s possession, custody or control that this Court order the State to

declare whether such document is missing or lost, has been destroyed, has been transferred

to others, or has otherwise been disposed. If any document or portion of any document

covered by these requests is withheld from production, the State should furnish a list

' identifying each such document or portion.

II. DOCUMENTS TO BE PRODUCED

A. Prosecution 's Files

6. Petitioner moves that this Court order the Montgomery County District

Attorney's office to turn over its entire case file relating to the death of LeFraich Moore' on

April 25, 1997; its entire case files concerning the related prosecution of Shonelle Andre

Jackson, Antonio Dion Barnes, Eric Orlando Williams and Christopher Rudolph for capital

murder of LeFraich Moore; and its entire case file(s) on any prior prosecution of Shonelle

1Mr. Moore's name is spelled inconsistently throughout relevant court and

1 investigative documents. References in this discovery motion to Lefraich Moore include, butare not limited to, LeFreck Moore, LeFreick Moore, Chu, and/or Chew.

3

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Andre Jackson, Antonio Dion Barnes, Christopher Rudolph and Eric Orlando Williams .

7. Specifically, this request includes, but is not limited to the following:

' (a) each document relating to any communications or statements (written or oral),memoranda, summaries or audio or video recordings of such communicationsor statements, as well as grand jury testimony, made on or after April 25,

' 1997, the date of a prior offense committed by an unknown suspect against Mr.LeFraich Moore (including the names and addresses of the persons to whomthe communications or statements were made) including but not limited to'communications or statements relevant to: 1) the death and alleged robbery ofLeFraich Moore; 2) all events leading up to the death the death and alleged

' robbery of Lefraich Moore; 3) any condition of Shonelle Andre Jackson,including, but not limited to, information pertinent to his mental or physicalcondition at any time; 4) any condition of Lefraich Moore from April 25, 1997,until April 29, 1997 including, but not limited to the time period beginningwhen the police were first called on April 25, 1997 and continuing until theconclusion of Dr. Lauridson's post-mortem examination of April 29, 1997;

(b) All names and addresses of any person with knowledge of any fact orcircumstance surrounding the death and alleged robbery of Lefraich Moore;

(c) All documents to, from and between law enforcement officers and the State ofAlabama's investigative staff regarding the death and alleged robbery ofLefraich Moore;

d '( ) Any documents in the State s possession or available to the State that areexculpatory or favorable to Shonelle Andre Jackson on the issue of guilt or

' penalty regarding any element of the offense of capital murder related to thedeath and/or the alleged robbery of Lefraich Moore, including, but not limitedto: 1) all evidence provided by or relating to any and all prosecution witnessesthat were called during the course of Mr. Jackson's trial; 2) any and allinformation including letters, records of telephone calls, memoranda, and anyother records or documents disclosing bias or prejudice or prejudgement by thecitizens of Montgomery County, Alabama, against Shonelle Andre Jacksonand the identity of persons making statements expressing such views; 3) anyand all information in any form whatsoever, that derives from any person thatis exculpatory with respect to Shonelle Andre Jackson having committed the

' robbery and/or murder of LeFraich Moore, including but not limited tostatements made by any prosecution witness who testified at Mr. Jackson's

4

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1

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1

1

f'.

1

1

trial and any information obtained from any individuals that may haveinformation relating to LaFraich Moore's death and Mr. Jackson's prosecutionfor his death; 4) any and all information that would support a showing that thisoffense was committed while Shonelle Andre Jackson was under the influenceof extreme mental or emotional disturbance; 5) any and all informationrelevant to the capacity of Shonelle Andre Jackson to appreciate thecriminality of his conduct or to conform his conduct to the requirements of thelaw, especially any such information that would support a finding that Mr.Jackson's capacity was substantially impaired; 6) all information that supportsthe existence of statutory and/or nonstatutory mitigating circumstances; 7) anyevidence offered by the State at Mr. Jackson's trial in support of any allegedaggravation circumstance that was subject to partial or total negation;

(e) All physical or documentary evidence, including diagrams, sketches, books,papers, documents, photographs, illustrations, or tangible objects in thepossession of the prosecution, law enforcement personnel, any other Stateagency, or prosecution witness that relate to this case, Shonelle Andre Jackson,Eric Orlando Williams, Antonio Dion Barnes, or Christopher Rudolph in anyfashion, or may have impeached or otherwise contradicted, conflicted orchallenged the testimony of the State witnesses in this case, or any otherindividual that may have information relating to LeFraich Moore's death andMr. Jackson's prosecution for his death;

(f) All documents relating to the administration or results of any medical,pathological, toxicological, chemical, biochemical, criminalistic, laboratory,forensic, or scientific examination, investigation or analysis regarding thedeath of LeFraich Moore, including but not limited to: 1) each documentrelating to the crime scene investigation in the area of Estate Avenue and WestBoulevard, Montgomery, Alabama; 2) each document relating to any post-mortem scientific physical test(s), examination(s) or experiment(s) conductedin connection with the death of LeFraich Moore, including but not limited totests conducted by the Alabama Department of Forensic Sciences, theMontgomery County Sheriffs office, the Montgomery Fire Department, andthe Montgomery Police Department;

(g) All documents relating to Shonelle Andre Jackson, including: 1) all juvenileand adult detention, jail, prison, parole, probation and presentence investiga-tion records; 2) all sentencing reports; 3) all arrest, conviction, and adult andjuvenile criminal offense records; 4) all records of any law enforcementauthority, including any document relating to any plea negotiations between

5

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11

1

Shonelle Andre Jackson and the State; 5) all records of any detention or courtauthority; 6) all records that the prosecution or any law enforcement officialhas submitted to any professional personnel for examination or analysis inconnection with this case; 7) all institutional records of any kind including butnot limited to those prepared at Kilby Correctional Facility, MontgomeryCounty Detention Facility, and any other institutional record that relate toShonelle Andre Jackson; 8) all psychiatric documents relating to theconducting or results of any testing. examinations or interviews of ShonelleAndre Jackson, including but not limited to reports by the AlabamaDepartment of Youth Services, the Alabama Department of Corrections or anyother agency, and any other psychiatric, psychological or mental health recordsconcerning Shonelle Andre Jackson and 9) all documents relating to any testsof any kind conducted on Shonelle Andre Jackson, including but not limitedto any tests conducted on samples of Mr. Jackson's hair, blood, saliva, semen,or any other corporeal sample.

(h) All documents relating to the co-defendants in this case, Eric OrlandoWilliams, Christopher Rudolph and Antonio Dion Barnes, including: 1) alljuvenile and adult detention, jail, prison, parole, probation and presentenceinvestigation records; 2) all sentencing reports; 3) all arrest, conviction, andadult and juvenile criminal offense records; 4) all records of any lawenforcement authority, including any document relating to any pleanegotiations between any of these three individuals, Eric Orlando Williams,Christopher Rudolph and Antonio Dion Barnes, and the State; 5) all recordsof any detention or court authority; 6) all records that the prosecution or anylaw enforcement official has submitted to any professional personnel forexamination or analysis in connection with this case; 7) all institutional recordsof any kind including but not limited to those maintained by StatonCorrectional Facility, Montgomery County Detention Facility, and any otherinstitutional record that relate to Eric Orlando Williams, Christopher Rudolphand Antonio Dion Barnes; 8) all psychiatric documents relating to theconducting or results of any testing, examinations or interviews of EricOrlando Williams, Christopher Rudolph and Antonio Dion Barnes , includingbut not limited to reports by the Alabama Department of Youth Services, theAlabama Department of Corrections or any other agency, and any otherpsychiatric, psychological or mental health records concerning Eric OrlandoWilliams, Christopher Rudolph and Antonio Dion Barnes, and 9) alldocuments relating to any tests of any kind conducted on Eric OrlandoWilliams, Christopher Rudolph, and Antonio Dion Barnes, including but notlimited to any tests conducted on samples of the individuals' hair, blood,

6

saliva, semen, or any other corporeal sample;

(i) All documents relating to any State witnesses at Shonelle Andre Jackson'strial, including: 1) all juvenile detention, jail, prison, parole, probation, andpre-sentence investigation records; 2) all sentencing reports; 3) all arrest,conviction, and adult and juvenile criminal offense records; 4) all records ofany law enforcement authority, including all documents relating to any pleanegotiations between any State witness and the State; 5) all records of anydetention or court authority; 6) all records of any prosecuting authority; 7) allpsychiatric, psychological, and mental health records; 8) all documents relatingto any lie detector test taken by any State witness; 9) all other records andreports;

(j) Each document relating to the State's use of peremptory challenges duringpetitioner's trial, including but not limited to any information gathered aboutthe jury venirepersons;

(k) Each document relating to the use of racial criteria in the jury selection processin criminal cases prosecuted in Montgomery County, Alabama, including butnot limited to charges of racial discrimination in jury selection in casesprosecuted by Montgomery County District Attorney and assistant DistrictAttorney;

(1) Each document relating to any communication between the State and any petitjury member in petitioner 's trial before, during , or after trial;

(m) Any and all visitor sign in sheets and/or other log of visitors, both legal andnon-legal , pertaining to Shonelle Andre Jackson, Eric Orlando Williams,Christopher Rudolph and Antonio Dion Barnes maintained and kept by theMontgomery County Detention Facility.

8. This request specifically applies to, but is not limited to the following': the

I Montgomery County District Attorney's Office, the City of Montgomery Police Department,

2This request includes (a) all present and former agents, officers , investigators,consultants , employees , and staff of these organizations ; (b) any other person or entity actionon behalf of any of these organizations or on whose behalf such person or entity has acted;(c) any other person or entity otherwise subject to the control of any of these organizations.

7

1

the Montgomery County Police Department , the Montgomery County Sheriffs Department,

the Montgomery Fire Department, the Montgomery County Detention Facility, the

Montgomery City Jail, the Montgomery Violent Crimes Task Force, the Alabama

Department of Youth Services, the Alabama Department of Corrections, the Alabama

Department of Forensic Sciences, the Alabama Department of Pardons and Paroles, the

Alabama Department of Mental Health and Mental Retardation, specifically including Taylor

Hardin Secure Medical Facility and Bryce Hospital and the Montgomery County Juvenile,

Family, District and Circuit Courts and the Montgomery Municipal Courts.

9. Discovery requests of prosecution files are thus routinely granted in death

' penalty Rule 32 cases throughout the state .3 See, e . g., Land, 775 So. 2d at 850 (trial court

3Both the United States Supreme Court and the Alabama Supreme Court haverepeatedly recognized that the prosecutor has a duty to disclose relevant evidence to thedefendant. The prosecution's failure to do so "casts the prosecutor in the role of an architectof a proceeding that does not comport with standards of justice ...." Brady v. Maryland,373 U.S. 83, 88 (1963); see also Kyles v. Whitley, 514 U.S. 419 (1995) (prosecution mustdisclose favorable information to defense); Giles v. Ma land, 386 U.S. 66 (1967) (remand

' necessary where prosecution violated due process by suppressing favorable evidence andknowingly using perjured testimony); Davis v. Alaska, 415 U.S. 308 (1974) (defendant must

' be afforded opportunity to impeach credibility of prosecution witness through cross-examination); Giglio v. United States, 405 U.S. 150 (1972) (prosecution must disclose todefense impeachment information, including agreements with state witnesses); United Statesv. Bagley, 473 U.S. 667 (1985) (prosecution must disclose impeachment evidence); Napuev. Illinois, 360 U.S. 264 (1959) (prosecution may not allow false evidence to be presented

' to jury); United States v. Pitt, 717 F.2d 1334 (11th Cir. 1983) (due process mandatesdisclosure of favorable evidence); Ex parte Womack, 541 So -,2,d 47 (Ala. 1988) (prosecutionmust reveal evidence tending to exculpate accused or impeach veracity of state's witnesses);

' Ala. R. Crim. Pro. 16 (prosecution must disclose exculpatory information).

8

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). As Alabama courts have recognized, claims that the prosecutor has

illegally suppressed evidence are properly brought in Rule 32 postconviction proceedings.

See, e. . Martin v. State, 839 So. 2dg 9 S 665 (Ala. Cram. App. 2001) (failure of a prosecutor to

' disclose exculpatory evidence required new trial); Jefferson v. State, 645 So. 2d 313 (Ala.

' Crim. App. 1994) (granting new trial in Rule 32 proceedings where state failed to turn over

police reports containing witness statements identifying another person fleeing the scene of

the crime); McMillan v. State, 616 So. 2d 933 (Ala. Crim. App. 1993) (reversing conviction

' and sentence in Rule 32 proceedings where prosecution failed to disclose material evidence).

10. In Claim III of his Rule 32 petition,' Mr. Jackson has alleged that the State has

withheld material evidence from him at trial, including, among other things, "deals or

agreements that had been entered into between the prosecution and the co -defendants who

testified for the State ." Petition for Relief from Judgment Pursuant to Rule 32 of the

Alabama Rules of Criminal Procedure at 38 ; Amended Petition for Relief from Judgment

r Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure at 64 -67. Indeed, the

evidence introduced at trial and in the records that Mr. Jackson has received strongly

4In its March 1, 2004, Order, this Court held that Claim III of Mr. Jackson's petitionwas procedural y arre pursuant to Rules 32.2(a)(3), (5) of the Alabama Rules of CriminalProcedure. For the reasons articulated in Mr. Jackson's motion for reconsideration, filedcontemporaneously with this document, etitioner urges this Court to reconsider its rulingon this claim.

9

1

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 Signorelearned P.J.'s real name or obtained information referring to an individualnamed Jay. This suggests that some investigation occurred which was not

disclosed to Mr. Jackson.

(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.

(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 Sheriff's Department. Mr. Jackson's trial counselnever received any information from the Montgomery County SheriffsDepartment relating to this complaint.

(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.

(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 into

10

the car.

(f) Other gaps in the evidence indicate that the State has not provided all of therequired evidence to Mr. Jackson. Mr. 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 theprosecution were not disclosed to Mr. Jackson's trial counsel.

(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 was provided to Mr. Jackson'strial counsel.

11. All of this information strongly indicates that Mr. Jackson has yet to receive

all the discoverable evidence related to the investigation of Mr. Moore' s death . Thus, Mr.

Jackson has alleged facts , which if proven true , would entitle him to relief. See Land, 775

So. 2d at 852 (granting the petitioner' s mandamus petition and ordering that the petitioner

was entitled to postconviction discovery to support claims which, if proven true, would

entitle the petitioner to relief). Without the discovery of the prosecutor's files, however, Mr.

Jackson will be unable to prove the allegations stated in his petition.

B. Materials in the Possession of the Montgomery Coun Juvenile Famil y,District and Circuit Courts and the Montgomery Municipal Courts

12. In addition to the information requested above, Mr. Jackson respectfully

requests that this Court order that he have access to the evidence used in this case. The Rule

32 petition in this case contains a claim that trial counsel were ineffective for failing to

procure the assistance of a firearm and projectile expert who would have "assisted counsel

in undermining the State's experts that the projectile recovered from Mr. Moore's body was

necessarily fired by a .380 gun." Petition at 9; Amended Petition at 11-12. It is therefore

necessary that the bullet and shell casing be made available to Mr. Jackson in order that he

may have it evaluated and independently tested. Without access to the evidence in this case,

Mr. Jackson will be unable to prove that his trial counsel were ineffective in this regard.

' 13. Additionally, Mr. Jackson requests that this Court order the Montgomery

County Circuit Court to permit him to inspect and copy the juror questio

members of the jury pool called to sere in his case. Claim II of Mr. Jackson's Rule 32

' Petition contains allegations that his 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 his peremptory strikes. Mr. Jackson has thus alleged facts, which, if proven

' true, entitle him to relief. Tomlin v. State, 695 So. 2d 157 (Ala. Crim. App. 1996);

I 'In its orders of March 1, 2004, this Court found that Mr. Jackson's juror misconductclaim lacked specificity, pursuant to Rule 32.6(b) of the Alabama Rules of CriminalProcedure , and that it was procedurally barred pursuant to Rules 32.2(a)(3), (5), of theAlabama Rules of Criminal Procedure . As Mr. Jackson explains in his motion forreconsideration , filed contemporaneously with this pleading , these findings are in error. In

' a good faith effort to comply with this Court's order, Mr. Jackson has amended this claim tocontain the names of the jurors that he believes to have engaged in misconduct. He urges thisCourt to reconsider the procedural bars in this case, consistent with Alabama law recognizingthat juror misconduct claims are properly brought in Rule 32 proceedings. McGahee v. State,CR-00-2017, 2003 WL 21246493 (Ala. Crim. App. May 30, 2003).

' 12

I McDonough Power Equipment v. Greenwood , 464 U. S. 548 , 556 ( 1984 ) .

14. Additionally, Mr. Jackson has alleged that his trial counsel was ineffective for

failing to effectively litigate the prosecutor's discriminatory use of peremptory challenges

on the basis of race and gender. In order to prove this claim, Mr. Jackson will need to

present evidence and argument to show that, in light of the standards articulated in Expaarte

Branch, 526 So.2d 609 (Ala. 1987), the struck jurors were removed on an impermissible

basis. These factors include evidence that the struck jurors were heterogenous as the

community as a whole, that there was a lack of meaningful voir dire, and that the prosecutor

engaged in disparate treatment of the jurors. Critical to his ability to prove this claim, then,

is the information about the jurors contained in the juror questionnaires.'

15. At Mr. Jackson ' s trial , jurors were asked to fill out questionnaires prior to voir

dire. As provided in the Alabama Rules of Criminal Procedure, these questionnaires were

"not included in the clerk's portion of the record on appeal." Ala. R. Crim. P. 18.2. Without

access to these juror questionnaires , found in the custody of the Montgomery County Circuit

Clerk's Office, "it would be practically impossible" for Mr. Jackson to show that he is

entitled to relief on these claims . Land, 775 So. 2d at 855; see also Ex parte Mack , 2003 WL

'In its March 1 , 2004, Order, this Court dismissed this subpart of Mr. Jackson'sineffectiveness allegation (contained in paragraph 36 of Mr. Jackson ' s petition ). See Order

' on the State 's Motion for Summary Dismissal of the Claims in Jackson's Rule 32 Petitionthat Present no Materrial Issues of Fact or Law Under Rule 32.7(d) of the Alabama Rulesof Criminal Procedure, at 3. For the reasons set forth in his motion to reconsider, filed

' contemporaneously with this pleading , Mr. Jackson urges this Court to reconsider its rulingin this regard.

' 13

F1_*

1950008, 2 (Ala. Crim. App. Apr. 25, 2003)(granting Rule 32 petitioner's mandamus

' petition and directing circuit court to order discovery of grand and petit jury information,

without which Mack would be unable to prove his claim that trial counsel were ineffective

for failing to effectively challenge the underrepresentation of African-Americans on the

grand and petit juries).

' III. CONCLUSION

16. In his Rule 32 petition, Mr. Jackson has alleged facts, which, if proven true,

' would entitle .him to relief. As such, there is "good cause" for the discovery of the

aforementioned files, records and information. See Land, 775 So. 2d at 852 ("to obtain

' discovery, a petitioner must allege facts that if would entitle him to relief."that, proved, )

FOR THESE REASONS, Mr. Jackson respectfully requests that this Court order the

production of the foregoing materials.

Respectfully Submitted,

B^hn A. Stevenson' Angela L. Setzer

Equal Justice Initiative of Alabama122 Commerce Street

' Montgomery, AL 36104(334) 269-1803

' Counsel for Mr. Jackson

' Dated : April 1, 2004

' 14

1' CERTIFICATE OF SERVICE

I certify that on April 1, 2004 , I served a copy of the attached motion by first class

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

Jeremy McIntire' Office of the Attorney General

Alabama State House1 I South Union StreetMontgomery , AL 36130

1 AA ela L . Setzer

i11I

111

15

1

MONTGOMERY COUNTY CIRCUIT COURTFIFTEENTH JUDICIAL CIRCUIT

STATE OF ALABAMA,

1 *Plaintiff,

v. * No. CC-97-2300.60

' SHONELLE JACKSON,*

Defendant.

ORDER GRANTING DISCOVERY OF PROSECUTION FILES

Upon consideration of Shonelle Jackson's Motion For Discovery of Prosecution Files,

it is ORDERED that the Motion is GRANTED. The prosecution, including the Montgomery

County District Attorney's Office, the City of Montgomery Police Department, the

' Montgomery County Police Department, the Montgomery County Sheriff s Department, the

Montgomery Fire Department, the Montgomery County Detention Facility, the Montgomery

City Jail, the Montgomery Violent Crimes Task Force, the Alabama Department of Youth

Services, the Alabama Department of Corrections, the Alabama Department of Forensic

Sciences, the Alabama Department of Pardons and Paroles, the Alabama Department of

Mental Health and Mental Retardation, specifically including Taylor Hardin Secure Medical

Facility and Bryce Hospital and the Montgomery County Juvenile, Family, District and

Circuit Courts and the Montgomery Municipal Courts shall disclose the following

information:

^ I I

I(a) Each document relating to any communications or statements (written or oral),

' memoranda, summaries or audio or video recordings of such communicationsor statements, as well as grand jury testimony, made on or after April 25,1997, the date of a prior offense committed by an unknown suspect against Mr.

' LeFraich Moore (including the names and addresses of the persons to whomthe communications or statements were made) including but not limited tocommunications or statements relevant to: 1) the death and alleged robbery ofLeFraich Moore; 2) all events leading up to the death the death and allegedrobbery of Lefraich Moore; 3) any condition of Shonelle Andre Jackson,including, but not limited to, information pertinent to his mental or physicalcondition at any time; 4) any condition ofLefraich Moore from April 25, 1997,until April 29, 1997 including, but not limited to the time period beginning

' when the police were first called on April 25, 1997 and continuing until theconclusion of Dr. Lauridson's post-mortem examination of April 29, 1997;

' (b) All names and addresses of any person with knowledge of any fact orcircumstance surrounding the death and alleged robbery of Lefraich Moore;

(c) All documents to, from and between law enforcement officers and the State ofAlabama's investigative staff regarding the death and alleged robbery of

t Lefraich Moore;

' (d) Any documents in the State's possession or available to the State that areexculpatory or favorable to Shonelle Andre Jackson on the issue of guilt orpenalty regarding any element of the offense of capital murder related to thedeath and/or the alleged robbery of Lefraich Moore, including, but not limitedto: 1) all evidence provided by or relating to any and all prosecution witnessesthat were called during the course of Mr. Jackson's trial; 2) any and allinformation including letters, records of telephone calls, memoranda, and anyother records or documents disclosing bias or prejudice or prejudgement by thecitizens of Montgomery County, Alabama, against Shonelle Andre Jacksonand the identity of persons making statements expressing such views; 3) anyand all information in any form whatsoever, that derives from any person thatis exculpatory with respect to Shonelle Andre Jackson having committed therobbery and/or murder of LeFraich Moore, including but not limited tostatements made by any prosecution witness who testified at Mr. Jackson's

' trial and any infonnation obtained from any individuals that may haveinformation relating to LaFraich Moore's death and Mr. Jackson's prosecutionfor his death; 4) any and all infonnation that would support a showing that thisoffense was committed while Shonelle Andre Jackson was under the influence

I 2

1

of extreme mental or emotional disturbance ; 5) any and all informationrelevant to the capacity of Shonelle Andre Jackson to appreciate thecriminality of his conduct or to conform his conduct to the requirements of thelaw, especially any such information that would support a finding that Mr.Jackson's capacity was substantially impaired; 6) all information that supportsthe existence of statutory and/or nonstatutory mitigating circumstances; 7) anyevidence offered by the State at Mr . Jackson ' s trial in support of any allegedaggravation circumstance that was subject to partial or total negation;

(e) All physical or documentary evidence , including diagrams, sketches , books,papers , documents , photographs , illustrations , or tangible objects in thepossession of the prosecution , law enforcement personnel , any other Stateagency, or prosecution witness that relate to this case , Shonelle Andre Jackson,Eric Orlando Williams , Antonio Dion Barnes , or Christopher Rudolph in anyfashion , or may have impeached or otherwise contradicted, conflicted orchallenged the testimony of the State witnesses in this case, or any otherindividual that may have information relating to LeFraich Moore ' s death andMr. Jackson ' s prosecution for his death;

(f) All documents relating to the administration or results of any medical,pathological, toxicological , chemical, biochemical, criminalistic , laboratory,forensic , or scientific examination , investigation or analysis regarding thedeath of LeFraich Moore, including but not limited to: 1) each documentrelating to the crime scene investigation in the area of Estate Avenue and WestBoulevard, Montgomery, Alabama ; 2) each document relating to any post-mortem scientific physical test(s), examination(s) or experiment(s) conductedin connection with the death of LeFraich Moore, including but not limited totests conducted by the Alabama Department of Forensic Sciences, theMontgomery County Sheriffs office , the Montgomery Fire Department, andthe Montgomery Police Department;

(g) All documents relating to Shonelle Andre Jackson , including: 1) all juvenileand adult detention , jail, prison, parole , probation and presentence investiga-tion records ; 2) all sentencing reports ; 3) all arrest , conviction, and adult andjuvenile criminal offense records ; 4) all records of any law enforcementauthority, including any document relating to any plea negotiations betweenShonelle Andre Jackson and the State; 5) all records of any detention or courtauthority ; 6) all records that the prosecution or any law enforcement officialhas submitted to any professional personnel for examination or analysis inconnection with this case ; 7) all institutional records of any kind including but

3

not limited to those prepared at Kilby Correctional Facility, MontgomeryCounty Detention Facility, and any other institutional record that relate toShonelle Andre Jackson; 8) all psychiatric documents relating to theconducting or results of any testing, examinations or interviews of ShonelleAndre Jackson, including but not limited to reports by the AlabamaDepartment of Youth Services, the Alabama Department of Corrections or anyother agency, and any other psychiatric, psychological or mental health recordsconcerning Shonelle Andre Jackson and 9) all documents relating to any testsof any kind conducted on Shonelle Andre Jackson, including but not limitedto any tests conducted on samples of Mr. Jackson's hair, blood, saliva, semen,or any other corporeal sample.

(h) All documents relating to the co-defendants in this case, Eric OrlandoWilliams, Christopher Rudolph and Antonio Dion Barnes, including: 1) alljuvenile and adult detention, jail, prison, parole, probation and presentenceinvestigation records; 2) all sentencing reports; 3) all arrest, conviction, andadult and juvenile criminal offense records; 4) all records of any lawenforcement authority, including any document relating to any pleanegotiations between any of these three individuals, Eric Orlando Williams,Christopher Rudolph and Antonio Dion Barnes, and the State; 5) all recordsof any detention or court authority; 6) all records that the prosecution or anylaw enforcement official has submitted to any professional personnel forexamination or analysis in connection with this case; 7) all institutional recordsof any kind including but not limited to those maintained by StatonCorrectional Facility, Montgomery County Detention Facility, and any otherinstitutional record that relate to Eric Orlando Williams, Christopher Rudolphand Antonio Dion Barnes; 8) all psychiatric documents relating to theconducting or results of any testing, examinations or interviews of EricOrlando Williams, Christopher Rudolph and Antonio Dion Barnes, includingbut not limited to reports by the Alabama Department of Youth Services, theAlabama Department of Corrections or any other agency, and any otherpsychiatric, psychological or mental health records concerning Eric OrlandoWilliams, Christopher Rudolph and Antonio Dion Barnes, and 9) alldocuments relating to any tests of any kind conducted on Eric OrlandoWilliams, Christopher Rudolph, and Antonio Dion Barnes, including but notlimited to any tests conducted on samples of the individuals' hair, blood,saliva, semen, or any other corporeal sample;

(i) All documents relating to any State witnesses at Shonelle Andre Jackson'strial, including : 1) all juvenile detention , jail, prison , parole , probation, and

4

I ; 2pre-sentence investigation records, ) all sentencing reports; 3) all arrest,' conviction, and adult and juvenile criminal offense records; 4) all records of

any law enforcement authority, including all documents relating to any pleanegotiations between any State witness and the State; 5) all records of any

' detention or court authority; 6) all records of any prosecuting authority; 7) allpsychiatric, psychological, and mental health records; 8) all documents relatingto any lie detector test taken by any State witness; 9) all other records andreports;

Each document relating to the State's use of peremptory challenges duringpetitioner's trial, including but not limited to any information gathered aboutthe jury venirepersons;

(k) Each document relating to the use of racial criteria in thejury selection process'in criminal cases prosecuted in Montgomery County, Alabama, including butnot limited to charges of racial discrimination in jury selection in casesprosecuted by Montgomery County District Attorney and assistant District

' Attorney;

(1) Each document relating to any communication between the State and any petit' jury member in petitioner ' s trial before , during , or after trial;

' (m) Any and all visitor sign in sheets and /or other log of visitors , both legal andnon-legal , pertaining to Shonelle Andre Jackson , Eric Orlando Williams,Christopher Rudolph and Antonio Dion Barnes maintained and kept by the

' Montgomery County Detention Facility.

' DONE and ORDERED this the day of , 2004.

nTRACY S. McCOOEY

n CIRCUIT JUDGE

5



Petitioner,

v.

STATE OF ALABAMA,

Respondent.

CC--1997- 2300.60

STATE OF ALABAMA ' S RESPONSE TO JACKSON ' S MOTION

FOR DISCOVERY OF INSTITUTIONAL RECORDS, FILES, AND

INFORMATION NECESSARY TO A FAIR RULE 32

EVIDENTIARY HEARING


above-styled cause, and respectfully requests that this

Court grant Jackson's "Motion For Discovery of

Institutional Records, Files, and Information Necessary To

A Fair Rule 32 Evidentiary Hearing" in part. Specifically,

Jackson is entitled to discovery regarding claims that are

not due to be summarily dismissed by this Court and for

which he has met the standards for post-conviction

discovery in Ex parte Land, 775 So. 2d 847 (Ala. 2000), and

Ex parte Mack, 2003 WL 1950008 (Ala. Crim. App. Apr. 25,

2003). In support of this motion, the State submits the

following:

1. Below are the claims in Jackson's amended Rule 32

petition that are not due to be summarily dismissed by this

Court:

Claim I(B)(1): The Claim That Counsel Was Ineffective

For Failing To Investigate And Present

"Even A Portion Of The Available Mitigating

Evidence" At Both The Penalty AndSentencing Phases . (Paragraphs 74-135)

Claim I (B)(2): The Claim That Counsel Was Ineffective 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.

(Paragraphs 136-139)

Claim 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 . (Paragraphs 169-

174)

2. In regard to the claims delineated above, the

State does not object to Jackson receiving some discovery.

The question is what particular discovery is permitted

under Land and Mack.

4. In Ex parte Land, 775 So. 2d 847 (Ala. 2000), the

Alabama Supreme Court recognized that "the Alabama Rules of

Criminal Procedure do not specifically provide for

postconviction discovery of documents and/or other things."

Id. at 851. However, the court recognized that "a trial

court . . . may exercise its inherent authority to order

2

1

discovery in a proceeding for post-conviction relief." Id.

at 852. The court then adopted the "good cause" standard

' for trial courts to employ in evaluating a Rule 32

petitioner's motion for post-conviction discovery. Id. The

' court also noted that the good cause standard "does not

' expand the discovery procedures within Rule 32.4." Land,

775 So. 2d at 852. The court then cautioned that

' "Postconviction discovery does not provide a petitioner

with the right to fish' through official files and that it

is not a device for investigating possible claims, but a

means of vindicating actual claims." Id. 852 (citations

omitted). The court then noted that the purpose of the

' "good cause" standard is to "guard[] against potential

abuse of the post-conviction discovery process." Id.

5. More recently, in Ex parte Mack, 2003 WL 1950008

(Ala. Crim. App. Apr. 25, 2003), the Court of Criminal

Appeals established five additional factors that should be

considered by a court in determining whether a petitioner

has established "'good cause" for post-conviction discovery.

' These factors are as follows: "'the issues presented in the

petition, the scope of the requested discovery, the length

of time between the conviction and post-conviction

3

proceeding, the burden of discovery on the State and on any

witnesses ; and the availability through other sources."'

Ex parte Mack, 2003 WL 195008, at *3 (Ala. Crim. App. Apr.

25, 2003) (quoting People v. Johnson, 2002 WL 592153, *14

(Ill. 2002) (citing People ex rel Dale v. Fitzgerald, 526

N.E.2d 131, 135 (Ill. 1988)).

6. As a general matter, the State objects to the

unduly burdensome procedures that Jackson's motion entails

and its incomplete nature. First, Jackson's motion

requesting discovery imposes an unduly burdensome procedure

regarding items the State elects to withhold because of a

claim of privilege or to protect the chain of custody of

physical items or to prevent loss or destruction. See Ex

parte Mack, 2003 WL 195008, at *3 (Ala. Crim. App. Apr.

25, 2003)(courts must consider the scope and burden of the

discovery requests in determining whether "good cause" is

established).

7. Specifically, Jackson requests that "if any

document responsive to a request was, but no longer is in

the State' s possession , custody or control, that this Court

order the State to declare whether such document is

missing or lost, has been destroyed , has been transferred

4

rto others, or has otherwise been disposed of. If any

' document or portion of any document covered by these

requests is withheld from production, the State should

(Jackson'sfurnish a list identifying each such document".

discovery motion at 3-4)

r 8. Jackson offers no justification for this procedure,

or a rule or case that mandates it. Jackson suggests a

Procedure that is both unprecedented and unduly burdensome.'

r Should the State elect to withhold an item, the State

should present the item to this Court in an in camera

hearing. See generally, Schaefer v. State, 676 So. 2d 947,

r 948-49 (Ala. Crim. App. 1995) (holding that the trial court

' should conduct an in camera proceeding to balance

assertions of privilege against the defendant's right to

exculpatory evidence). The presiding judge then determines

whether the State's privilege is deserving of protection.

' Id.; see also Allen v. State, 659 So. 2d 135, 149 (holding

that the trial court properly conducted an in camera

' Proceeding to examine privilege documents and did not find

r exculpatory evidence). The State's proposed orders provide

r for such in camera inspections.

r5

r

9. Jackson's proposal unduly increases the time and

monetary requirements on the State by requiring it to

compile and present logs or reports, concerning all

documents for which it claims a privilege or physical

evidence which must be protected against loss, destruction,

and chain of custody problems. An in camera inspection of

such items should be more than sufficient to protect any

discovery rights Jackson has.

' 10. Second, Jackson's order granting this discovery is

incomplete in that it does not grant the State the same

discovery it grants Jackson. The State's attached proposed

' orders grant both Jackson and the State the same discovery.

' Thus, this Court's signing the State's proposed orders will

eliminate the need for future motions, responses, and

additional proposed orders.

11. Applying these standards, the State now addresses

Jackson's individual requests for discovery.

a. Request For Louis Wendell Taylor ' s Department of

Corrections Records

Jackson asks for any and all records pertaining to

Louis Wendell Taylor generated or maintained by the

Department of Corrections. Additionally, Jackson requests

all records generated or maintained by any and all medical

6

provider or contractor for medical and/or psychiatric

' services to the Alabama Department of Corrections . Jackson

argues 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 broad . Jackson has other available means

' with which to prove his allegations concerning his father.

As a result , his discovery request should be denied.

The discovery of Taylor ' s correctional records are not

necessary for Jackson to demonstrate that his father was

either on drugs and alcohol or in prison when he was

growing up. Such information could easily be obtained

' through the testimony of Jackson himself, other family

members , or even through his father , Louis Taylor. In

fact , Louis Taylor already testified at the penalty phase

' of Jackson ' s trial that he wasn ' t home a lot for Jackson.

(R.572 ) Taylor also testified that he was-incarcerated in

' 1994 and 1995 . R. 574 ) Because such information has

already been presented and/or may be presented through

' Jackson , his family members , or his father , Jackson has

7

I., failed to demonstrate "good cause" for such discovery.

Therefor , this Court should not grant Jackson ' s discovery.

b. Request For Louis Wendell Taylor ' s Institutional

Records In The Possession Of The Montgomery County

Detention Facility.


Louis Wendell Taylor generated or maintained by the

Montgomery County Detention Facility. For the same reasons

set out above in paragraph 11(a), this Court should not'

' grant Jackson's discovery request.

' c. Request For Louis Wendell Taylor's And Shonelle

Andre Jackson ' s Institutional Records In The

Possession Of The Montgomery City Jail.


Louis Wendell Taylor and/or himself generated or maintained

' by the Montgomery City Jail. For the same reasons set out

above in paragraph 11(a), this Court should not grant

Jackson's discovery request as to Louis Wendell Taylor.

' The State has no objection to this Court granting both

Jackson and the State access to any and all institutional

' records pertaining to Shong1le Andre Jackson held by the

Montgomery City Jail.

d. Request For Shonelle Andre Jackson ' s and Marilyn

Jackson ' s Mental Health Records.

I8

Jackson asks for any and all mental health records

pertaining to himself and/or his mother, Marilyn Taylor.

The State has no objection to this Court granting both

Jackson and the State access to any and all medical,

psychological, psychiatric or mental health records

pertaining to Shonelle Andre Jackson. However, the State

objects to this Court granting Jackson's request as it

pertains to his mother, Marilyn Taylor. First, Jackson's

motion is overly broad in its request for any and all

medical records regardless of their relevancy to his claim

of mental retardation. Second, the mental health records

are not relevant to Jackson's claim of mental retardation.

Jackson either meets the standards for mental retardation

or he doesn 't. Third, Jackson's mother can provide her own

medical records to Jackson without a court order.

e. Request For Louis Wendell Taylor's And Shonelle


Possession Of The Alabama Board of Pardons and

Paroles.



by the Alabama Board of Pardons and Paroles. For the same

reasons set out above in paragraph 11(a), this Court should

9

not grant Jackson's discovery request as to Louis Wendell

Taylor.

The State also objects to this Court granting discovery

pertaining to the petitioner Shonelle Andre Jackson.

Jackson has not explained either in his amended Rule 32

petition or in his motion for discovery what documents this

agency possesses. Nor, does Jackson allege what the

records specifically reveal or how they relate to any

remaining claims before this 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[.]").

Clearly, Jackson's search for records are overly broad

requests to conduct a prohibited "fishing expedition." See

Ex parte Mack, 2003 WL 195008, *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

10

1I to the case. It appears that this motion is merely a

`fishing expedition. ") .

f. Request For Shonelle Andre Jackson ' s Institutional

Records In The Possession Of The Alabama Department

Of Human Resources.

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 Alabama Department of Human Resources.

g. Request For Louis Wendell Taylor's And Shonelle


Possession Of The Montgomery Police Department.



by the Montgomery Police Department. For the same reasons

set out above in paragraph 11(a), this Court should not

grant Jackson's discovery request as to Louis Wendell

Taylor. 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

held by the Montgomery Police Department.

h. Request For Louis Wendell Taylor ' s And Shonelle


Possession Of The. Montgomery County Sheriff's

Department.

11


I Louis Wendell Taylor and/or himself generated or maintained

by the Montgomery County Sheriff's Department. For the

same reasons set out above in paragraph 11(a), this Court

should not grant Jackson's discovery request as to Louis

Wendell Taylor. 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

held by the Montgomery County Sheriff's Department.

Conclusion

In sum, the State consents to Jackson receiving

discovery, with certain limitations, regarding all of the

claims, which the State has not moved to dismiss. However,

for the reasons explained above, Jackson's motion and

discovery requests are unduly burdensome (in that they

require the State to expend the time and money to provide

various logs and reports regarding withheld items) and

incomplete (in that they do not provide the State the same

discovery they grant Jackson). In addition, Jackson has

utterly failed to establish good cause for the discovery he

requests regarding his father Louis Wendell Taylor.

Accordingly, the State consents to Jackson's discovery

I12

r-1 requests only as to those institutions for which "good

cause" has been established and, as to those, only insofar

as the deficiencies regarding the unduly burdensome,

incomplete, and overly broad requests are corrected. To

facilitate the commencing of discovery, the State submits

its own proposed discovery orders to this Court for which

Jackson has established good cause for discovery. (See

attachments) The State's proposed discovery orders should

i be signed by this Court instead of Jackson's proposed order

for all of the reasons contained herein.


Court grant Jackson's discovery motion only to the extent

provided for in the State's proposed discovery orders.


Troy King

Attorney General

May 28, 2004

I

I

Jeremy W. McIntire


Counsel of Record *



Montgomery, AL 36130-0152

(334) 353-4014 *

13


I hereby certify that on this th 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:

Bryan A. Stevenson


122 Commerce Street


Jeremy W. McIntire


Counsel of Record *

ADDRESS OF COUNSEL:



Alabama State House

11 South Union StreetMontgomery, AL 36130

(334) 353-4014 *

14



Petitioner,

v.

STATE OF ALABAMA,

Respondent.

CC-1997-2300.60

ORDER GRANTING DISCOVERY

FROM THE MONTGOMERY CITY JAIL

Upon consideration of Jackson's motion for discovery

and the State's response, it is now ordered that:

Jackson's Motion for Discovery of Montgomery City Jail

records is GRANTED.

The Montgomery City Jail shall make available to

counsel for the petitioner, and the State of Alabama, for

copying at their own expense, all records pertaining to

Shonelle Andre Jackson.

DONE this day of 2004.

Tracy S. McCooey

Circuit Judge

cc: Bryan A. Stevenson, Esq.

Angela L. Setzer, Esq.

Jeremy W. McIntire, Esq.

15



Petitioner,

v. ) CC--1997--2300.60

STATE OF ALABAMA,

Respondent.ORDER GRANTING DISCOVERY OF

JACKSON ' S MENTAL HEALTH RECORDS

Upon consideration of Jackson's motion for discovery of

mental health records and the State's response, it is now

ordered that:

Jackson's Motion for Discovery of mental health records

is GRANTED.

The Alabama Department of Mental Health and Mental

Retardation , Alabama Department of Rehabilitation, Taylor

Hardin Secure Medical Facility, and Bryce Medical Facility

shall make available to counsel for the petitioner, and the

State of Alabama, for copying at their own expense, all

records pertaining to Shonelle Andre Jackson.


16



Petitioner,

v. ) CC-1997-2300.60

STATE OF ALABAMA,

Respondent.

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS

IN THE POSSESSION OF THE ALABAMA DEPARTMENT OF

HUMAN RESOURCES



Jackson's Motion for Discovery of Alabama Department of

Human Resources records is GRANTED.

The Alabama Department of Human Resources shall make

available to counsel for the petitioner, and the State of

Alabama, for copying at their own expense, all records

pertaining to Shonelle Andre Jackson.


Tracy S. McCooeyCircuit Judge




18



Petitioner,

v.

STATE OF ALABAMA,

Respondent.

CC-1997-2300.60

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS

IN THE POSSESSION OF THE MONTGOMERY POLICE

DEPARTMENT



Jackson's Motion for Discovery of Montgomery Police

Department records is GRANTED.

The Montgomery Police Department shall make available

to counsel for the petitioner, and the State of Alabama,

for copying at their own expense , all records pertaining to

Shonelle Andre Jackson.


Tracy S. McCooey

Circuit Judge

cc: Bryan A. Stevenson, Esq.Angela L. Setzer, Esq.

Jeremy W. Mclntire, Esq.

19



Petitioner,

v.

STATE OF ALABAMA,

Respondent.

CC-1997- 2300.60

STATE OF ALABAMA ' S RESPONSE TO JACKSON ' S MOTION

FOR DISCOVERY OF PROSECUTION FILES , RECORDS, AND

INFORMATION NECESSARY TO A FAIR RULE 32

EVIDENTIARY HEARING


above-styled cause, and respectfully requests that this

Court grant Jackson's "Motion For Discovery of Prosecution

Files, Records, and Information Necessary To A Fair Rule 32

Evidentiary Hearing" in part. Specifically, Jackson is

entitled to discovery regarding claims that are not due to

be summarily dismissed by this Court and for which he has

met the standards for post-conviction discovery in Ex parte

Land, 775 So. 2d 847 (Ala. 2000), and Ex parte Mack, 2003

WL 1950008 (Ala. Crim. App. Apr. 25, 2003). In support of

this motion, the State submits the following:

1. Below are the claims in Jackson's amended Rule 32

petition that are not due to be summarily dismissed by this

Court:

Claim I(B)(1): The Claim That Counsel Was Ineffective

For Failing To Investigate And Present

"Even A Portion Of The Available Mitigating

Evidence" At Both The Penalty And

Sentencing Phases. (Paragraphs 74-135)

Claim I (B) (2) : The Claim That Counsel Was Ineffective 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.

(Paragraphs 136-139)

Claim 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 . (Paragraphs 169-

174)

2. In regard to the claims delineated above, the

State does not object to Jackson receiving some discovery.

The question is what particular discovery is permitted

under Land and Mack.

4. In Ex parte Land, 775 So. 2d 847 (Ala. 2000), the

Alabama Supreme Court recognized that "the Alabama Rules of

Criminal Procedure do not specifically provide for

Postconviction discovery of documents and/or other things."

Id. at 851. However, the court recognized that "a trial

court . . . may exercise its inherent authority to order

discovery in a proceeding for post-conviction relief." Id.

at 852. The court then adopted the "good cause" standard

I for trial courts to employ in evaluating a Rule 32

1 2

I

petiti oner 's motion for post-conviction discovery. Id. The

court also noted that the good cause standard "does not

expand the discovery procedures within Rule 32.4." Land,

775 So. 2d at 852. The court then cautioned that

' Postconviction discovery does not provide a petitioner

with the right to fish' through official files and that it

is not a device for investigating possible claims, but a

means of vindicating actual claims." Id. 852 (citations

omitted). The court then noted that the purpose of the

"good cause " standard is to "guard[] against potential

abuse of the post-conviction discovery process." Id.

5. More recently, in Ex parte Mack, 2003 WL 1950008'

(Ala. Crim. App. Apr. 25, 2003), the Court of Criminal

Appeals established five additional factors that should be

considered by a court in determining whether a petitioner

has established "good cause" for post-conviction discovery.

These factors are as follows: "`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.'"

Ex ante Mack, 2003 WL 195008, at *3 (Ala. Crim. App. Apr.

11 3

25, 2003) (quoting People v. Johnson, 2002 WL 592153, *14

(Ill. 2002) (citing People ex rel Daley v. Fitzgerald, 526

N.E.2d 131, 135 (Ill. 1988)).

6. As a general matter, the State objects to the

unduly burdensome procedures that Jackson's motion entails

and its incomplete nature. First, Jackson's motion

requesting discovery imposes an unduly burdensome procedure

regarding items the State elects to withhold because of a

claim of privilege or to protect the chain of custody of

physical items or to prevent loss or destruction. See Ex

parte Mack, 2003 WL 195008, at *3 (Ala. Crim. App. Apr.

25, 2003)(courts must consider the scope and burden of the

discovery requests in determining whether "good cause" is

established).

7. Specifically, Jackson requests that "if any-

document responsive to a request was, but no longer is in

the State's possession, custody or control, that this Court

order the State to declare whether such document is

missing or lost, has been destroyed, has been transferred

to others, or has otherwise been disposed of. If any

document or portion of any document covered by these

requests is withheld from production, the State should

4

furnish a list identifying each such document". (Jackson's

discovery motion at 3).

8. Jackson offers no justification for this procedure,

or a rule or case that mandates it. Jackson suggests a

procedure that is both unprecedented and unduly burdensome.

Should the State elect to withhold an item, the State

should present the item to this Court in an in camera

hearing. See generally, Schaefer v. State, 676 So. 2d 947,

948-49 (Ala. Crim. App. 1995) (holding that the trial court

should conduct an in camera proceeding to balance

assertions of privilege against the defendant's right to

exculpatory evidence). The presiding judge then determines

whether the State's privilege is deserving of protection.

Id.; see also Allen v. State, 659 So. 2d 135, 149 (holding

that the trial court properly conducted an in camera

proceeding to examine privilege documents and did not find

exculpatory evidence). The State's proposed orders provide

for such in camera inspections.

9. Jackson's proposal unduly increases the time and

monetary requirements on the State by requiring it to

compile and present logs or reports, concerning all

documents for which it claims a privilege or physical

5

i t

evidence which must be protected against loss, destruction,

and chain of custody problems. An in camera inspection of

such items should be more than sufficient to protect any

discovery rights Jackson has.

10. Second, Jackson's order granting this discovery is

incomplete in that it does not grant the State the same

discovery it grants Jackson. The State's attached proposed

orders grant both Jackson and the State the same discovery.

Thus, this Court' s signing the State' s proposed orders will

eliminate the need for future motions, responses, and

additional proposed orders.

11. Applying these standards , the State now addresses

Jackson's specific requests for discovery.t

12. Jackson requests any and all records related to

the death of LeFraich Moore and the prosecution of Shonelle

Andre Jackson, Antonio Dion Barnes, Eric Orlando Williams,

and Christopher Rudolph for Moore 's murder. Jackson also

requests the Montgomery County District Attorney's Office's

entire case files on any prior prosecution of Shonelle

Andre Jackson, Antonio Dion Barnes, Eric Orlando Williams,

and Christopher Rudolph. (Jackson's discovery motion at 3-

4) The State consents to this request in part, but objects

6

i

to the extent that the request involves Antonio Dion

Barnes, Eric Orlando Williams, and Christopher Rudolph.

Additionally, the State objects to discovery being granted

on any prior prosecutions unrelated to the murder of

LeFraich Moore as overly broad and irrelevant.

13. The State agrees that Jackson is entitled to

discovery of the Montgomery County District Attorney's case

file concerning his prosecution for the murder of LeFraich

Moore. Ja.o.ks"on, however, is not entitled to any disco%ry

related to the prosecution of Antonio Dion Barnes, Eric

Orlando Williams, and Christopher Rudolph or any prior

prosecution(s) of Shonelle Andre Jackson, Antonio Dion

Barnes , Eric Orlando Williams, and Christopher Rudolph.

Jackson has failed to show "good cause" as required by Ex

arte Land for the discovery of such documents.

14. In support of his discovery request, Jackson

argues that he has alleged claims in his Rule 32 petition

that the State entered into deals or agreements with the

co-defendants in exchange for their testimony and withheld

other favorable evidence. (Jackson's discovery motion at 9)

However, these claims are either procedurally barred

pursuant to Ala. R. Crim. P. 32.2 or have been or are due

7

to be summarily dismissed under Ala. R. Crim. P. 32.7(d).

(See State ' s answer to Jackson' s amended petition at 63-68)

As such, Jackson has not and cannot demonstrate "good

cause" for their discovery.

15. Jackson has also failed to demonstrate how any

prior prosecutions in involving himself or the three co-

defendants are relevant to the remaining claims before this

Court. Jackson does not allege what the records

specifically reveal or how they relate to any remaining

claims before this 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[.]").

16. Clearly, Jackson' s search for records are overly

broad requests to conduct a prohibited "fishing

expedition." See Ex parte Mack, 2003 WL 195008, *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

8

totally unconnected to the case. It appears that this

motion is merely a `fishing expedition.'").

17. Jackson also requests access to the evidence used

in his prosecution. Specifically, Jackson requests that the

bullet and shell casing introduced at trial be made

available for testing. The State objects to Jackson's

request because the claim he relies on is without merit and

is due to be dismissed pursuant to Ala. R. Crim. P.

32.7(d). In his amended Rule 32 petition, Jackson argue_-,-

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." (Jackson's Amnd. Pet. at 11-

12) The State has moved to dismiss this claim because r4o

material issue of law or fact exists which would entitle

Jackson to relief and no purpose would be served by any

further proceedings. 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

See"STATE'S MOTION FOR SUMMARY DISMISSAL OF THE CLAIMS IN JACKSON'S AMENDED

RULE 32 PETITION WHICH PRESENT NO MATERIAL ISSUES OF FACT OR LAW UNDER

ALABAMA RULE OF CRIMINAL PROCEDURE 32.7(d)" filed on May 28, 2004.

9

recovered from Mr. Moore's body could have been fired from

either a 9 mm pistol or .357 pistol. (R. 506, 508) 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 would entitle Jackson to relief and no purpose would

be served by any further proceedings . Because Jackson's

claim is due to be summarily dismissed, he has not and

cannot show " good cause " for access to the bullet and shell

casing.

18. Jackson also requests access to the juror

questionnaires in support of his juror misconduct claims

and his claim that trial counsel was ineffective in

litigating Batson and J.E.B. objections. (Jackson's

discovery motion at 12-13) The State objects to Jackson's

request because the juror misconduct claims are

procedurally barred and the ineffective assistance of

counsel claim is due to be dismissed pursuant to Ala. R.

Crim. P. 32.7(d). (See State 's answer to Jackson' s amended

petition at 33-34, 61-62) As such, Jackson has not and

cannot demonstrate "good cause" for discovery of the juror

questionnaires.

10

19. Jackson also requests all documents relating to

any State witness at his trial, including all criminal

records, mental health records, correctional records, etc.

(Jackson's discovery motion at 7). The State objects to

Jackson's discovery request as overly broad and irrelevant.

Jackson does not allege what the records specifically

reveal or how they relate to any remaining claims before

this 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[.]").

20. Clearly, Jackson's search for records are overly






totally unconnected to the case . It appears that this

motion is merely a `fishing expedition."').

11

21. Jackson requests any and all documents relating to

the State's use of peremptory challenges, and the use of

racial criteria in the jury selection process in Montgomery

County. Jackson also requests any documents relating to

any communication between the State and any petit jury

member before, during, or after the trial. (Jackson's

discovery motion at 7) The State objects to Jackson's

discovery request as overly broad and irrelevant.2 Jackson

does not allege what the records specifically reveal or how

they relate to any remaining claims before this 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[.]").

22. Furthermore, the State objects to Jackson's

request because the claim that trial counsel was

ineffective in litigating Batson and J.E.B is due to be

dismissed pursuant to Ala . R. Crim . P. 32.7( d). (See

State's answer to Jackson' s amended petition at 33-34, 61-

2Additionally, some of the documents requested by Jackson would be protected

12

62) As such, Jackson has not and cannot demonstrate "good

cause" for the requested discovery.

23. Additionally, the State objects to Jackson's

request for any and all visitor sign in sheets and/or log

of visitors pertaining to Shonelle Andre Jackson, Antonio

Dion Barnes, Eric Orlando Williams, and Christopher

Rudolph. (Jackson's discovery motion at 7) Jackson's

discovery request is overly broad and irrelevant. Jackson

does not allege what the records specifically reveal or how

they relate to any remaining claims before this Court. See












from discovery under the Work Product Rule.

13




25. Finally, Jackson has requested that this Court

1

1I

issue discovery orders to the following agencies: the

Montgomery County District Attorney's Office, City of

Montgomery Police Department, Montgomery County Police

Department, Montgomery County Sheriff's Department,

Montgomery fire Department, Montgomery County Detention

Facility, Montgomery City Jail, Montgomery Violent Crimes

Task Force, Alabama Department of Youth Services, Alabama

Department of Corrections, Alabama Department of Forensic

Sciences, Alabama Department of Pardons and Paroles,

Alabama Department of Mental Health and Mental Retardation

(including Taylor Hardin Secure Medical Facility and Bryce

Hospital), the Montgomery County Juvenile, Family, District

and Circuit Courts and the Montgomery Municipal Courts.

The State consents to Jackson receiving discovery from some

of these agencies and objects to others. Specifically, the

State consents to Jackson receiving discovery from the

following agencies: the Montgomery County District

Attorney's Office, City of Montgomery Police Department,

14

Montgomery County Sheriff' s Department , Montgomery County

Detention Facility, Montgomery City Jail, Alabama

Department of Youth Services, Alabama Department of

Corrections, and the Alabama Department of Mental Health

and Mental Retardation (including Taylor Hardin Secure

Medical Facility and Bryce Hospital).

26. The State objects, however, from Jackson receiving,

discovery from the following agencies: Montgomery fire

Department, Montgomery Violent Crimes Task Force, Alabama

Department of Forensic Sciences, Alabama Department of

Pardons and Paroles, and the Montgomery County Juvenile,

Family, District and Circuit Courts and the Montgomery

Municipal Courts. 'Jackson has not explained either in his

amended Rule 32 petition or in his motion for discovery

what documents these agencies possess . Nor, does Jackson

allege what the records specifically reveal or how they

relate to any remaining claims before this Court. See





15











Conclusion

In sum, the State consents to Jackson receiving

discovery, with certain limitations, regarding all of the

claims, which the State has not moved to dismiss. However,

for the reasons explained above, Jackson's motion and

discovery requests are unduly burdensome (in that they

require the State to expend the time and money to provide

various logs and reports regarding withheld items) and

incomplete (in that they do not provide the State the same

discovery they grant Jackson). To facilitate the commencing

of discovery, the State submits its own proposed discovery

orders to this Court for which Jackson has established good

16

cause for discovery. (See attachments) The State's

proposed discovery orders should be signed by this Court

instead of Jackson's proposed order for all of the reasons

contained herein.)


Court grant Jackson's discovery motion only to the extent

provided for in the State's proposed discovery orders.


Troy King

Attorney General

Jeremy W. McIntire


Counsel of Record *


11 South Union StreetMontgomery, AL 36130-0152

May 28, 2004 (334) 353-4014 *

3A number of Jackson's discovery requests overlap with those in his "Motion

For Discovery of Institutional Records, Files, and Information Necessary to a

Fair Rule 32 Evidentiary Hearing". For clarity and efficiency, the State has

only prepared one proposed order in instances where requests from the two

discovery motion involved the same information or agency.

17


I hereby certify that on this th 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:

Bryan A. Stevenson

Angela L. Setzer


122 Commerce Street


Jeremy W. McIntire


Counsel of Record *

ADDRESS OF COUNSEL:



Alabama State House

11 South Union StreetMontgomery, AL 36130

(334) 353-4014 *

18



Petitioner,

v.

STATE OF ALABAMA,

Respondent.

CC-1997--2300.60

ORDER GRANTING JACKSON DISCOVERY FROM THE

MONTGOMERY COUNTY DISTRICT ATTORNEY

Upon consideration of Jackson's consolidated motion for

discovery and the State's response, it is now ordered that:

Jacksons 's Motion for Discovery of Montgomery County

District Attorney' s Office records is GRANTED.

The Montgomery County District Attorney's Office shall

make available to counsel for the petitioner, and the State

of Alabama, for copying at their own expense, all records

pertaining to Shonelle Andre Jackson and the murder of

LeFraich Moore.

Actual evidence may not be removed from the premises

where found to prevent loss, destruction, or future chain

of custody problems. With regard to any documents for

which the State claims a privilege, those documents shall

be produced to the Court for an in camera inspection.

19






20



Petitioner,

v.

STATE OF ALABAMA,

Respondent.

CC-1997-2300.60

ORDER GRANTING DISCOVERY FROM THE

MONTGOMERY COUNTY DETENTION FACILITY


and the State' s response , it is now ordered that:

Jackson's Motion for Discovery of Montgomery County

Detention Facility records is GRANTED.

The Montgomery County Detention Facility shall make


Alabama, for copying at their own expense , all records

pertaining to'Shonelle Andre Jackson.


Tracy S. McCooey

Circuit Judge




21



Petitioner,

v. ) CC-1997-2300.60

STATE OF ALABAMA,

Respondent.ORDER GRANTING DISCOVERY FROM THE

MONTGOMERY COUNTY SHERIFF ' S DEPARTMENT

Upon consideration of Jackson's motion for discovery of

mental health records and the State's response, it is now

ordered that:

Jackson's Motion for Discovery from the Montgomery

County Sheriff's Department is GRANTED.

The Montgomery County Sheriff's Department shall make


Alabama, for copying at their own expense, all records

pertaining to Shonelle Andre Jackson and the murder of

LeFraich Moore.


22

I I.

ii

Tracy S. McCooey

Circuit Judge




11 23



Petitioner,

v.

STATE OF ALABAMA,

Respondent.

CC-1997-2300.60


ALABAMA DEPARTMENT OF YOUTH SERVICES


and the State' s response , it is now ordered that:

Jackson's Motion for Discovery from the Alabama

Department of Youth Services is GRANTED.

The Alabama Department of Youth Services shall make


Alabama, for copying at their own expense , all records

pertaining to Shonelle Andre Jackson.

DONE this day of





2004.

24



Petitioner,

v.

STATE OF ALABAMA,

Respondent.

CC-1997-2300.60


ALABAMA DEPARTMENT OF CORRECTIONS



Jackson's Motion for Discovery of Alabama Department of

Corrections records is GRANTED.

The Alabama Department of Corrections, including Holman

Prison, shall make available to counsel for the petitioner,

and the State of Alabama, for copying at their own expense,

all records pertaining to Shonelle Andre Jackson.

DONE this day of , 2004.

Tracy S. McCooey

Circuit Judge




25

IN THE FIFTEENTH JUDICIAL CIRCUIT COURTMONTGOMERY COUNTY, ALABAMA

*


Petitioner,

V.*

STATE OF ALABAMA,*

Respondent.*

Case No. 97-2300.60

PETITIONER ' S RESPONSE TO THE

STATE ' S OPPOSITION TO HIS DISCOVERY REQUESTS

Petitioner Shonelle Andre Jackson is currently before this Court challenging his

capital conviction and death sentence . Petitioner has filed for discovery of prosecution files

and institutional records that are necessary to prove the claims alleged in his Rule 32 petition.

While the State agrees that Mr. Jackson is entitled to some of the items he has requested, the

State objects to others , arguing that Mr. Jackson has failed to show "good cause ," or that Mr.

Jackson's requests are overly broad. In response , Petitioner submits this pleading to

demonstrate that Ex parte Land, 755 So. 2d 847 (Ala. 2000), compels this Court to reject the

State's arguments , as Mr. Jackson has alleged facts which , if proven true , entitle him to

relief, and therefore has established "good cause " for discovery.

As a preliminary matter , some of the items in Mr. Jackson ' s discovery motion,

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including the juror questionnaires and the physical evidence in the case, are actually part of

the trial, which is the subject of this Rule 32 proceeding. Mr. Jackson is unquestionably

entitled to a complete record of his own trial proceedings. See Dobbs v. Zant, 506 U.S. 357

(1993); Hammond v. State, 665 So. 2d 970 (Ala. Crim. App. 1994); Green v. State, 796 So.

2d 438 (Ala. Crim. App. 2001). Mr. Jackson is seeking a court order for these items simply

to expedite the process for obtaining them, and the State's objection to these items is

unnecessarily oppositional. For the reasons discussed below, this Court should reject the

State's opposition to Mr. Jackson's discovery requests.

I. JUROR QUESTIONNAIRES

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). Mr. Jackson's only

discovery request with regard to this claim - for the juror questionnaires - was opposed

by the State solely based on its argument that the claim was not cognizable: "The State

objects to Jackson's request because the juror misconduct claims are procedurally barred. .

" State of Alabama 's Response to Jackson 's Motion for° Discovery of Prosecution Files,

Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearin,, at 10. As

articulated in Petitioner's Response to the State 's Motions to Dismiss, Ex parte Dobyne, 805

So. 2d 763 (Ala. 2001), compels this Court to reject the State's argument that the claims are

procedurally barred and accordingly compels it to reject its arguments opposing Mr.

Jackson 's discovery requests.

Mr. Jackson also requested these questionnaires, as well as 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 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). The State similarly contends that "the

ineffective assistance of counsel claim is due to be dismissed, . . . ." State's Response, at 10.

For reasons articulated in his response to the State's motions to dismiss, the factual

allegations in support of Mr. Jackson's ineffectiveness claim should not be dismissed from

his petition. Discovery should thus be granted. There is "good cause" for Mr. Jackson

getting access to the jury questionnaires in this case because, if the allegations related to them

in his Rule 32 petition are true, Mr. Jackson would be entitled to relief. See Ex parte Land,

775 So. 2d 847, 852 (Ala. 2000)("to obtain discovery, a petitioner must allege facts that, if

proved, would entitle him to relief.")

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1 II. PROSECUTION FILES

The State concedes that Mr. Jackson is entitled to discovery of the District Attorney's

file concerning his prosecution for the murder of LeFraich Moore , but argues that he is not

entitled to the following: any files related to the prosecution of his co-defendants, or any

prior prosecutions related to Mr. Jackson or his co -defendants; the bullet and shell casing

introduced at trial ;' records related to witnesses at his trial ; visitor log from Montgomery

County Detention Facility; and records from agencies involved in the prosecution of Mr.

Jackson, as well as the Montgomery Juvenile , Family, District and Circuit courts and the

Montgomery Municipal Courts . State 's Response , at 7-15 . The Court should reject the

State's arguments because Mr. Jackson has established "good cause" for the discovery of all

of this evidence.

In assessing the State ' s argument that Mr. Jackson is not entitled to some of the

requested discovery, including parts of his record and his own juvenile files, to prove his

facially meritorious claims , it is important to note that the Montgomery County District

Attorney's office has a history of suppressing evidence in death penalty cases. In Martin v.

State , 839 So . 2d 665 (Ala. Crim . App. 2001), the Alabama Court of Criminal Appeals

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 orderis 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 State ' s opposition to permitting Mr. Jackson access to these items should not beindulged by this Court.

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reversed a death penalty case in Rule 32 where this same District Attorney's office

suppressed not one, but numerous pieces of evidence. The Court found that "[t]he verdict

here was so tainted by the prosecutorial nondisclosure of material evidence that it is not

`worthy of confidence."' Id. at 681 . The Martin case provides a context for Mr. Jackson's

discovery requests related to his Brady claim.

A. Files Relating to the Co-Defendants and Prior Prosecutions

The State first argues that Mr. Jackson is not entitled to any discovery related to the

prosecution of Eric Williams, Antonio Barnes, Christopher Rudolph or any prior

prosecutions of Mr. Jackson or the three co-defendants because the claim is due to be

dismissed;2 alternatively, the State argues that Mr. Jackson has not shown specifically what

the records contain, or how these records are relevant to the claims before the Court. The

State' s arguments should be rejected.

Mr. Jackson has, in fact, shown why the files relating to prior prosecutions are

relevant. In his Rule 32 petition, he alleged that the State suppressed several pieces of

evidence and entered into deals or agreements with the co-defendants in his case in exchange

for their testimony, in violation of Brady v . Maryland . 373 U. S. 83 (1969 ), and Giglio v.

United States, 405 U.S. 150 (1972). Amended Petition, at 65. Evidence of these deals is

likely contained in the District Attorney' s file for the prosecution of each of the co

2As Petitioner has argued in his response to the State's motion to dismiss, Bradyclaims are cognizable in Rule 32 proceedings, and therefore Mr. Jackson's claim cannot besummarily dismissed by this Court. Petitioners Response, at 15-17.

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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).'

Additionally, the visitor logs from the Montgomery County Detention Facility-where

Mr. Jackson and the other co-defendants were housed prior to trial -- may corroborate these

allegations with a record of the times and dates that members of the District Attorney's office

visited with any of the co-defendants prior to trial.' Upon information and belief the

Montgomery County District Attorney's office entered into deals with the co-defendants in

exchange for their testimony against Mr. Jackson at trial. In order to prove this, Mr. Jackson

must have the files of the District Attorney in the prosecution of Eric Williams, Christopher

Rudolph and Antonio Barnes in the death of Mr. Moore, which will document interactions

with the co-defendants, as well as any plea agreements . Such information may also be

contained in any prior prosecutions of these co -defendants , and as such the District

Attorney's files with regard to prior prosecutions are necessary to prove this claim as well.

To the extent that the State argues that Mr. Jackson must specifically articulate what

is contained in the files, beyond what he has already stated, this argument was rejected by the

'Additionally, evidence contained in the District Attorney's files related to priorprosecutions of Mr. Jackson is necessary for Mr. Jackson to prove that his trial counsel wereineffective for failing to challenge the underlying convictions which formed the basis for theaggravating circumstance against Mr. Jackson that "the capital offense was committed by aperson under sentence of imprisonment." Amended Petition, at 16.

'The State additionally objects to Mr. Jackson receiving this piece of evidence.

State's Response, at 13.

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I' Alabama Supreme Court in Land: "Until the documents are actually produced, it is

impossible to determine whether they contain evidence of mitigating circumstances." Land,

755 So. 2d at 854. Without these files, Mr. Jackson will be unable to prove his allegationsI

that the District Attorney suppressed this evidence , and will be prevented from succeeding

I on his claim.

B. Documents Relating to State Witnesses

Mr. Jackson additionally seeks access to documents relating to state witnesses at trial,

I including criminal and mental health records. In response, the State contends that Mr.

I Jackson is not entitled to these documents because he "does not allege what the records

specifically reveal or how they relate to any remaining claims before the court." This Court

should reject the State's arguments. First, as discussed above, to the extent that the State

believes that Mr. Jackson must state what the records specifically reveal, this argument was

rejected in Land: "Until the documents are actually produced, it is impossible to determine

whether they contain evidence of mitigating circumstances." and, 755 So. 2d at 854.

Second, Mr. Jackson has explained how these items relate to the claims in his petition. In

his Rule 32 petition, he alleged that the State has suppressed a number of items, including

I information obtained from A.C. Porterfield, a witness at his trial. The requested records will

I likely contain the suppressed information , or lead to the discovery 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, 948I

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