FILED

IN THE ALABAMA COURT OF CRIMINAL AP]

NO.
IN RE:

00/7

OCT 2 0 2004
ALA COURT C 1A CLERK APPEALS

EX PARTE STATE OF ALABAMA.

SHONELLE ANDRE JACKSON,

PETITIONER,
VS

STATE OF ALABAMA,

RESPONDENT.

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 MONTGOMERY , 11 SOUTH UNION STREET ALABAMA 36130

(334) 242-7408

IN THE ALABAMA COURT OF CRIMINAL APPEALS NO. EX PARTE STATE OF ALABAMA. IN RE: SHONELLE ANDRE JACKSON, PETITIONER, vs. STATE OF ALABAMA, RESPONDENT.

PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE TRACY S. MCCOOEY, CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT

TROY KING Attorney General

And
James R. Routs 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

1 1
T ABLE OF CONTENTS INDEX TO EXHIBITS

TABLE

OF

CONTENTS

.................................... .................................. iii

'

TABLE OF AUTHORITIES ................................ IV PETITION FOR WRIT OF MANDAMUS ........................ 1

'

STATEMENT OF FACTS NECESSARY TO AN UNDERSTANDING O F THE

ISSUE PRESENTED ....................................... 1

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

Did the trial court err in granting Jackson's discovery requests without regard for whether "good cause" had been established? .............. 2
SUMMARY OF ARGUMENT .................................. 2 The Standard of Review for Mandamus .................. 3
ARGUMENT ............................................. 4

'

I. The Trial Court Abused Its Discretion By Granting

Jackson's Discovery Requests Without First

Determining That "Good Cause" Existed As Required By Land And Mack . . . . . . . . . . . . . . . . 4 A.The Trial Court Abused Its Discretion By Allowing 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 And The Jury Selection Process In Montgomery County . ..................................... 14

_^

D.The Trial Court Abused Its Discretion By Allowing Jackson Access To The Bullet And Shell Casing Introduced Into Evidence At Trial. ... 16 E.The Trial Court Abused Its Discretion By Allowing Jackson Access To Any And All Visitor Sign In Sheets And/Or Logs Of Visitors To Himself And His Co - Defendants . .............. 17 F.The Trial Court Abused Its Discretion By Allowing Jackson Access To Any And All Criminal And Correctional Records Of His Father, Louis Wendell Taylor . ............................. 19 II. This Court Is Due To Adopt Procedural Safeguards For The Rule 32 Discovery Process That Will Protect Nonparties To The Litigation. . . . . . . . .. . . . . . . . . . . . . . . 21 CONCLUSION .......................................... 30
CERTIFICATE OF SERVICE ...... 31

ii

INDEX TO EXHIBIT

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, and Information Necessary to a Fair Rule 32 Evidentiary Hearing EXHIBIT G Jackson's Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing EXHIBIT H State' s Response to 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, 2004 Hearing Held On the Parties Motions EXHIBIT L Court's Order Of October 13, 2004 iii

1
TABLE OF AUTHORITIES

Cases
Barbour v. State, CR-00 -1731, 2004 WL 1418383, at *9

'

(Ala. Crim. App. June 25, 2004) ..................... 8

Ex parte Coleman, 728 S o. 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, Ex parte State (Hooks), 822 So. 2d 47Io ...... 15,

13 ,

20

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 ),

WL 1496807 ' ( Ala. Crim. App. Oct .

CR-99 - 2212, 2000

6, 2000 ) .......... 3

Ex p arte 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 App. 1994) . 23 ....................... (Ala. Crim.

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.

I

1999) ............................ 12

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

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 Cases

in 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

PETITION FOR WRIT OF MANDAMUS

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 Rule 32 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's discovery requests without regard for whether "good cause " had been established?
SUMMARY OF ARGUMENT

The Montgomery County Circuit Court abused its

discretion by granting Jackson ' s motions for discovery before resolving the State's assertions of procedural bars
and insufficient pleadings . The circuit court explicitly violated the holdings of Ex parte Land, 775 So. 2d 847 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

i1

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 for writ of mandamus to clarify this issue.

4 11

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 19971998 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

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 the Montgomery County District Attorney's files relating to
the prosecution of not only Jackson, but also his codefendants . (Exhibit L) Additionally, the trial court's pl-

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.

11

i1

El 1

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 other things - deals or agreements that had been entered into between the prosecution and the codefendants 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 codefendants 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 conclusory manner without any underlying factual basis. (Exhibit A at 66-67, 4 167)

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

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?

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. Rule 32.3. 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 the guilty plea proceeding, which is in the record before us and of which the trial court could take judicial notice, clearly refutes the allegations of 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 the petition as to these allegations was proper.

Id. at 589-590. If this Court has already established that facts in the record of the conviction being attacked must
be countered by specific factual allegations in a Rule 32 petition to create a material issue of fact, how can it not

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. the trial court's stated nn. for 1gr discover as

to this issue, and issue a writ of mandamus to the Montgomery County Circuit Court ordering that court to ' vacate its discovery order. B. The Trial Court Abused Its Discretion By Allowing ' Jackson Access To The Criminal , Mental Health, And Correctional Records Of All State Witnesses. ' The trial court also granted Jackson's request for all documents relating to any State witness at his trial,

including all criminal records, mental health records,

correctional records, etc. Jackson was granted access to the following records: All documents relating to any State witness at Shonelle Andre Jackson's trial, including: 1) all juvenile detention, jail, prison, parole, probation, and pre- sentence 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) all documents 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

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

1 I

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

This case is discussed in greater detail below.

13
11

writ of mandamus to the Montgomery County Circuit Court ordering that court to vacate its discovery order.
C. The Trial Court Abused Its Discretion By 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

I
principle that juror misconduct claims are subject to the procedural bars of Rule 32.2 and, once pleaded by the State, it is the petitioner's burden to disprove their existence. In Woods, this Court determined the juror misconduct claims were procedurally barred because the

petitioner failed to provide any facts in his amended petition that, if true, would disprove the existence of the procedural bars. Jackson failed to include any facts in his amended petition that, if true, would rebut the presumption that the claims were procedurally barred. Because the State pleaded procedural bars in relation to the juror misconduct claims, the trial court abused its discretion by granting the requested discovery. The trial court's order violates
this Court's previous holding that discovery is inappropriate as to procedurally barred claims in a Rule 32

petition . See Hooks , 822 So. 2d 476 (Ala. Crim. App. 2000).
The State also objected to Jackson's discovery requests

because the ineffective trial counsel claim is due to be

dismissed pursuant to Ala. R. Crim. P. 32.7(d). (Exhibit E at 5) In Woods v. State, this Court reaffirmed its earlier

holdings that "when this court and/or the Alabama Supreme Court has specifically addressed and rejected a substantive

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 CoDefendants.

17

1
The trial court also granted Jackson's request for discovery of all jail visitor sign in sheets and/or logs of visitors pertaining to Shonelle Andre Jackson, Antonio Dion
Barnes, Eric Orlando Williams, and Christopher Rudolph. Jackson is not entitled to discovery of sign in sheets and logs 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 Allowing Jackson 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.

19

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 For The 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 i mputed 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 noncapital 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.

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 from the various agencies most commonly affected by the use of boilerplate discovery 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.
Respectfully submitted, Troy King Attorney General James R. Houts Assistant Attorney General

Jer y McIntire Assistant Attorney General Counsel of Record* State of Alabama Office of the Attorney General 11 South Union Street Montgomery, AL 36130-0152 (334) 353-4014 *

I II

October 20, 2004

30

1 1 1
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. Setzer Equal Justice Initiative of Alabama Commerce Street Montgomery, AL 36104

'

122

j emy . McIntire
Assistant Attorney General Counsel of Record *

um7W

ADDRESS OF COUNSEL: Office of the Attorney General Capital Litigation Division Alabama State House 11 South Union Street Montgomery, AL 36130 (334) 353-4014 *

MAR 1 8 2005 --I7l- T

6
cIOVG0^

cj) Oej

jN

Aej0

. Ifl- Cd41m,
31

co

G 'AL
IN THE ALABAMA COURT OF CRIMINAL APPEALS NO.

FIL O C T 2 0 ZQti4
CLERK ALA COURT CRIMINAL APPEALS

Ogv

EX PARTE STATE OF ALABAMA. IN RE: SHONELLE ANDRE JACKSON, PETITIONER,

V5.

STATE OF ALABAMA, RESPONDENT.

EXHIBITS FOR THE

PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE TRACY S. MCCOOEY, CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT

Volume I of II

TROY KING Attorney General

And
James R. Houts 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

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, and Information Necessary to a Fair Rule 32 Evidentiary Hearing EXHIBIT G Jackson's Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing EXHIBIT H State's Response to 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, 2004 Hearing Held On the Parties Motions

EXHIBIT L Court's Order Of October 13, 2004

ii

II

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA * SHONELLE ANDRE JACKSON, Petitioner, V. STATE OF ALABAMA, Respondent. *

* * *

Case No . CC-97-2300.60

1 1 1 1 1 1 1 1 1 1

AMENDED PETITION FOR RELIEF FROM JUDGMENT PURSUANT TO 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-540(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.)

1
2. 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 jury penalty ' 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
1 ^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
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 OF COUNSEL DURING THE GUILT AND PENALTY PHASES OF HIS TRIAL IN VIOLATION OF THE FOURTH, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. ^ 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 of ineffective 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 substantive claims. 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 by reference 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

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 and in 1999, amended the statute to significantly raise the level of funding for court-appointed lawyers in capital cases. See Ala. Code 15-12-21 (1975) (amended 1999). Unfortunately, this change came 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: "we have limited resources in this matter. We tried to use them as best we could.... if I did something wrong, I apologize to the Court. But there are a zillion people in this. I can only pay Ron William a certain amount to go out and see what he can do." (R. 24.)

I, t I
'

"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.

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 Fourteenth Amendment 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 the State'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. ' Washin gton, 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

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

ii

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

1
this witness, counsel was thus forced to read Mr. Burdette's statement into the record at trial. (R. 33.) 23. Trial counsel's failure to conduct an independent investigation of Mr. Moore's death was constitutionally required. Counsel's failure in this regard was particularly prejudicial in this case, given the circumstantial nature of the evidence. The State relied ' primarily on the testimony of the three co-defendants in this case to attempt to prove it's theory of the case that Mr. Jackson and three other young men were driving around Montgomery in a stolen car on a Friday night. While driving they passed the victim's car which one of the co-defendants knew had a good stereo system in it. According to the State, Mr. Jackson decided that he wanted to steal the stereo system, and a few minutes later, swerved his car in front of the victim's so that the two cars collided. Shots were fired and the State's theory is that Mr. Jackson shot and killed the victim. ' 24. Had counsel conducted a constitutionally adequate investigation of the State's

capital charges against Mr. Jackson, counsel would have been able to present a viable

' defense theory as to why Mr. Jackson was not guilty of capital murder because the motive for the killing was based on the fact that the victim was involved with gang members and was place ' a drug dealer who was known to sell fake drugs, and thus the killing did not take lace during 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
evidence that the killing occurred during a drug deal. This evidence would have included
' testimony from witnesses such as Gerard Burdette and the victim ' s wife, Lacreama Moore. These witnesses could have established not only that the victim was involved in gang

activity, but that this activity involved selling drugs.

' 26. Additionally, had trial counsel investigated and interviewed family members ' and friends such as Marilyn Jackson , LaQuanda Jackson , Wanda Jackson, Keisha Young, Monica Taylor , Julia Taylor, LaTanya Austin and Greg McGee, counsel would have uncovered and presented evidence that Shonelle began selling drugs at a very young age as a "drug gofer" for older men in the neighborhood who were gang members , and that Shonelle himself was a gang member and was involved in gang activity . Such interviews and

investigation would have also revealed that Mr. Jackson and a co - defendant had previously been convicted of drug offenses , (R.394, C.177), and that Mr. Jackson used drugs on the day of the crime . C.105, 112, 121, 122.). 27. Had counsel marshaled the evidence of the victim's drug use and gang activity, as well as Mr . Jackson ' s history of selling drugs and gang involvement , and alerted the trial court to this evidence , the trial court would have denied the State's motion in limine, and allowed counsel to present evidence that the motive for this crime was not robbery, but instead was a result of a drug deal gone bad . Counsel could then have presented this theory
' of defense to the jury both in evidence and argument , and the jury would have not have

' 'Indeed, counsel was on notice about this as the prosecutor acknowledged that the victim was a drug dealer. and that his wife could establish his reputation as such. (R. 31.)

10

II
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 codefendants. (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 -

factors about the event, such as the short amount of time that Mr. Geary had to view the

' event, the fact that the event involved violence, and the circumstances surrounding his alleged identification, such as the fact that it occurred at 11:00 pm, that the witness was viewing the incident through a 7 foot chain link fence and across two lanes of traffic (R. ' 202), and that the street light closest to the event had gone out just prior to this incident (R. ' 206), in addition to any factors about the witness, such as physical limitations or amount of ' stress on the witness, that affected his ability to perceive the event, combined to make the witness' identification unreliable. 34. Because jurors have a tendency to overestimate the accuracy of eyewitness ' identification, an expert could have explained how negative factors impact the accuracy of the identification, and this would have then aided the jury in assessing the accuracy, and therefore the credibility, of Mr. Geary's testimony when making their decision. ' 35. Trial counsel failed to obtain the assistance of an investigator or social worker to uncover exculpatory evidence, examine the State's evidence, interview the State's ' witnesses and potential defense witnesses, and otherwise assist in the development of a viable defense. As a result, trial counsel lacked the necessary information to make important decisions about the defense strategy. This lack of investigation was unreasonable and prejudiced Mr. Jackson. An investigator and social worker would also have assisted trial counsel in challenging the admissibility of Mr. Jackson's statements both in front of a judge and in front of a jury. See paragraphs 56-57. I
13

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 the State' s Investigation and Presentation of the Case
14

1
39. Counsel failed to effectively challenge the State's investigation and

presentation of the case. Counsel's ineffectiveness began prior to trial, when counsel failed to file the Youthful Offender Application ("YOA") in a timely manner. Indeed, it was not it filed until the morning of trial, primarily because counsel was "`mistaken as to his age." R.

' 33.) Given that Mr. Jackson was just over eighteen at the time of the crime, trial counsel's ' failure to timely file a YOA application , which if successful would have prevented him from being charged capitally , constituted deficient performance, and bespeaks a lack of 1 constitutionally effective advocacy on behalf of Mr. Jackson.

40. In determining whether youthful offender status is appropriate, the trial court
cannot rely solely on consideration of the nature of the crime charged, but must rely on additional evidence, including not only prior criminal history, but other relevant factors. In response to the defense motion in this case, the trial judge merely stated that he would "get a verbal from the probation officer," because he understood that "he has priors before Judge

Reese, ...." (R. 33.) Counsel should not merely have relied on this minimal investigation,
' but should have attempted to present testimony both about the prior crimes, and the compelling evidence of Mr. Jackson's upbringing, including the lack of a father figure, the ' impoverished, violent and unstable environment in which he was brought up, and resulting gang and drug activity, as well as evidence that Mr. Jackson was immature for his age, and considered to be a "low achiever," as evidence supporting their motion that Mr. Jackson would benefit from an informal. confidential and rehabilitative system. Pardue v. State, 566

15

11 1

1
I 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 ' underl y in g 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

16

11

*
helping to convict himself, then that ' s his prerogative ." (R. 26.) After this revelation, counsel then failed to investigate and present the very exculpatory evidence referred to: "the

weapon that the State alleges committed the crime is not the weapon," which was not the weapon that our client had in his possession at the time of the shooting .

"

(R. 26.) Counsel

should not have disclosed to the trial court and sentencing authority evidence that suggests 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 contain evidence in this not this case does 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

17

1
I

1 1

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 j udge'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 I

1 1

' 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 1 by reference). 49. Counsel also failed to adequately object to the prosecutor's use of discriminatory strikes against the veniremembers. See infra issue X (incorporated by ' reference). Mr. Jackson is black. There were 42 prospective jurors on Mr. Jackson's jury venire, of which 25 were female and 19 were black. The prosecutor had 15 peremptory ' strikes, of which he used 8 to remove women and 8 to remove blacks. Counsel should have more effectively argued that the prosecutor used his peremptory strikes in a discriminatory manner in violation of Batson v. Kentucky , 476 U .S. 79 (1986 ), and challenged the prosecutor ' s strikes as a violation of J.E. B. v. Alabama . 511 U.S. 127 (1994). See Eagle v. Linahan, 279 F.3 )d 926 (11 " Cir. 2001) ( finding counsel ineffectiv e for failing to adequately

19

1
1
s raise Batson claim). In this case, the trial court refused to find a prima facie case of discrimination despite the prosecutor's use of 8 of 15 of his peremptory strikes to remove 8 of the 19 black veniremembers. Additionally, the prosecutor used 8 of 15 peremptory strikes

to remove females.
' 50. instead of simply arguing to the judge that the prosecutor struck "six out of ' seven [black jurors] in a row," (R. 156), as a basis for a prima facie case , the defense should

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
11

jury.

20

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 codefendants, 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.

1 1
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 P erfonnance was defective . Had counsel conducted investigation, counsel could have evidence about the circumstances of Mr. Jackson ' s interrogation, including the following: 1) Mr. Jackson was questioned alone for four hours by two officers, who visibly displayed weapons on their duty belts , in an eight by eight windowless room containing several pieces of furniture , ( Supp . R. 22-24 ) ; and 2) during this interrogation , Mr. Jackson was seated approximately one to two feet from one of the officers, (Supp . R. 23-24 ), he was not 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.

^1

23

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 ackson's prejudiced the jury and accordingly undermined the reliability of Mr. Jackson's conviction and sentence of death. This failure constituted ineffective assistance of counsel. 60. In addition to failing to contest the State 's theory of events, trial counsel failed to present a viable theory of defense. During opening argument, counsel simply referred to the State's burden of proof, and reminded the jury to consider the bias of the co-defendants when assessing the reliability of their statements. (R. 168-73.) At no point did trial counsel

set forth a viable theory of defense that would have allowed the jury to acquit Mr. Jackson

' of capital murder. 61. After the State had rested, counsel then failed to present any witnesses, save ' for the statement of Gerard Burdette, which was read into the transcript by the two defense attorneys. (R. 33.) Trial counsel presented no other witnesses, and failed to marshal

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.)

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 codefendants 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

1 1

27

1-#

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 q uest and Failed to Object to the Trial Court ' s Failure to Instruct the Jury 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 Trial Court Improperly Left the Courtroom While the Jury Watched Mr. Jackson's Videotaped
Statement.

'

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

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's Improper 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

infra, issue XI (incorporated by reference).

7. Trial Counsel Failed to Ensure that the Jurors were Properly Instructed about the Accom lice Corroboration 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

i I

crime to capital murder. Critically, the State's robbery case rested on the testimony of three accomplices, individuals who themselves were indicted for the same crime of capital murder,

' individuals who all hoped to gain something by testifying, and individuals who were housed together in the Montgomery County Jail prior to trial. While the contradictions in their

' testimony are apparent, what is even more apparent is that this testimony with respect to robbery remained wholly uncorroborated by any other evidence.
70. Though trial counsel moved for a judgment of acquittal on this basis, the trial court erroneously permitted the State to rely on this uncorroborated testimony to gain a

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 Performance Denied Mr. Jackson his Right to Effective Assistance of Counsel at the Guilt Phase of His Capital 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 and Sentencing Phases of Mr. Jackson ' s Trial Thus Resulting in the 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

30 1

' 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 a Portion of the Available Mitigation Evidence During the

31

1
Penal 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 . Wig gins , 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).

,2

1
I

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, psy chiatric disorders , and histo ry of dru g 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 1

Jackson ; a grandfather , Tommy Taylor; aunts, Joyce Harvest , and Geraldine Ta ylor; a great

33

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

cousins , Christopher Harvest , Corey Taylor, Julia Taylor, Monica Taylor, Shantay Taylor, Chakka Harvest, Decarlos Harvest, Micky Harvest, Michael Harvest, Detrick Collins, and

' Gary Collins, who were not interviewed or asked to testify. Most of these individuals were 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

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

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

I i

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1 1 1 1 1 1 1 1 1 1 1 1 1 1
11

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 coworker 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

11

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

37

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'

86, Mr. Jackson ' s parents , Marilyn Jackson and Louis Taylor , had serious drug addiction problems throughout Mr. Jackson ' s childhood . Thelma Owens, Geraldine Taylor, Julia Taylor, Monica Taylor, and Joyce Harvest would have testified that as a consequence of this drug use , not only was desperately needed family money diverted to purchasing drugs, but the children were exposed to a host of people continuously coming in and out of their home to use illicit drugs. 87. Members of the community were well aware of Marilyn and Louis' drug use. Indeed, the level of their use, and their concomitant disability as parents was so severe that testimony would have revealed that children at school often teased Shonelle about Marilyn and Louis ' drug abuse problem. 88. In Mr. Jackson ' s impoverished household , this drug abuse created further financial instability . Marilyn Jackson was on welfare and barely able to feed her children, yet nonetheless diverted much of her money to supporting her drug use . In fact, Marilyn

' Jackson often sold the family ' s food stamps in exchange for cash so she could support her ' drug habit. 89. As a result of his parents ' drug use, Shonelle's childhood was marked by extreme instability, absence of a father figure, violence , drugs, and alcohol. The testimony ' of family members and friends , including Joyce Harvest . Marilyn Jackson , Laquanda Jackson, Wanda Jackson , Geraldine Taylor, Monica Taylor, Thelma Owens , and Keisha Young, as well as court and correctional records. would have established that Mr . Jackson's

'

38

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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.

A A

39

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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

40

1 I
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 j ury 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 occasions no 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

41

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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 sp ecial education services.

1
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14 ,

104. While average intellectual functioning children also require a certain degree , Joyce Harvest , Geraldine Taylor, of attention, family members , such as Della Jackson would have testified that between the drugs, lack of Monica Taylor , and Thelma Owens , 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 the type of specialized average functioning child . Consequently, he certainly did not receive 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 records indicated vulnerable to peer pressure . In addition, his Department of Youth Services that he had difficultly with negative peer influence. 107. Despite his susceptibility to peer pressure, testimony from family members, , Geraldine Taylor, ' including Della Jackson , Dmitri Gatson , Monica Harvest , Joyce Harvest and his teacher, and other community members, such as Latanya Austin, Rick Cotton,

43

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Rosal y n 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 crackcocaine. 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

44

Taylor, was often involved in violent altercations and court records would have revealed that

' on one occasion he was arrested for fighting with a police officer . Louis and Geraldine ' 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 Shonelle Wanda 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,

'

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' Laquanda Jackson , Wanda Jackson, Julia Taylor, Monica Taylor , and Keisha Young would have testified that Shonelle became a gofer for these older gang members, selling crack and other drugs, to make money for both himself and his family. 123. Much of the money he made selling drugs , he used to provide his sisters and mother with necessities . Laquanda Jackson , Marilyn Jackson , Wanda Jackson , Keisha Young, and Monica Taylor would have testified that Shonelle primarily used this money to provide for his family. In fact , Shonelle never owned a car himself nor did he ever acquire his own residence , but instead biked around the neighborhood. 124. Mr . Jackson's familial devotion was not limited to his immediate family. ' Dmitri Gaston , Julia Taylor, Monica Harvest, Laquanda Jackson, Wanda Jackson, Della ' Jackson, Joyce Harvest, Geraldine Taylor, Betty Brawlin , Freddie Owens , Donald Collins, Christopher Harvest , Shantay Harvest, Chakka Harvest, Decarlos Harvest, Julia Taylor, Monica Taylor, Gary Collins, Detrick Collins , and Sonya Ringstaff all would have testified that Shonelle loved all of them and he was well-loved by them . In addition, Laquanda Jackson, Marilyn Jackson, Wanda Jackson, and Sonya Ringstaff would have testified that he ' loves his daughter, Zekia Jackson. 125. Mr. Jackson spent a great deal of time with his family growing up. Mr. Jackson ' s sisters would have testified that three of them spent an exceptional amount of time together. Marilyn Jackson ' s trust of her son resulted in Laquanda and Wanda being

prohibited from leaving the house without Shonelle. Despite the age difference , Mr. Jackson

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brought his sisters to church, the community center, and the jubilees.

' 126. Had counsel acquired Mr. Jackson's records they would have showed that ' individuals outside Mr. Jackson's family often detected his desire to provide for loved ones and members of the community. This was confirmed by Department of Youth Services' records. 127. Mr. Jackson ' s familial devotion extended beyond his immediate family to his ' half-sister , cousins , aunts , and grandmothers . Growing up, Mr. Jackson spent a great deal of time with his half sister, cousins, and grandmothers. Shonelle spent many weekends playing sports with his cousin, Christoper Harvest, and neighbors at his grandmother's house. ' Older relatives, including Betty Brawlin, Joyce Harvest, Geraldine Taylor, and Thelma

' Owens, found Shonelle respectful and well-mannered. Moreover, he was willing to lend a ' helping hand when chores needed to be done. His half-sister, Dmitri, would have testified that despite being a few years older than Shonelle, he tried to look out for her by steering her away from nightly hangouts he knew were unsafe. ' 128. Such devotion extended beyond Mr. Jackson's family to other significant

persons in his life. Latrice Walker would have testified that Mr. Jackson was different from most young men who grew up in Trenholm Court. Rather, he was respectful and considerate. She would have recalled times when Mr. Jackson inquired into her well-being by asking after a long day whether she had enough to eat.

' 129. Evidence would have also established that Mr. Jackson is well loved by those

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who know him. He has always played and continues to play an important role in his family, and make emotional contributions to his family members, including his grandmother, aunts, parents, siblings and his daughter. Had counsel conducted a reasonable investigation, they would have presented testimony revealing Mr. Jackson's dedication to his family. 130. Moreover, Mr. Jackson's sense of community and spirit manifested itself through his religious activities. Had trial counsel spoken with members of Mr. Jackson's 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 I with her every other weekend. 131. Nor was his religious devotion forced. Laquanda and Wanda Jackson would have testified that when extended family members could not pick them up to attend services, Shonelle and his sisters would walk to the local, First Baptist Church. Mr. Jackson's sisters

and members of the First Baptist Church, such as Deacon Beasley, would have testified that Shonelle and his sisters were baptized during his pre-teen years. 132. Despite the vast amount of readily available mitigating evidence available related to Mr. Jackson's family history, medical history, criminal history, correctional history,

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educational history and good character, trial counsel failed to adequately prepare and present 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. See 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, _ Williams, 529 U.S. at 419 the judge would not have imposed a sentence of death. See (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

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I

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 a ' Penal and Sentencing Phase Strategy to Convince the Sentencin Authority that Life without Parole was the Appropriate Sentence in this Case.

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136. Because trial counsel had not conducted a constitutionally adequate investigation of the circumstances of Mr. Jackson's life, they failed to failed to develop a defense to the death penalty. Trial counsel's lack of penalty phase strategy is apparent from the record.' At the conclusion of the guilt phase, trial counsel moved for a continuance because they intended to call probation officer Carolyn Flack as witness , but because "she wouldn't come in voluntarily," and because trial counsel had failed to anticipate the possibility of a penalty phase trial, she had not been subpoened and so she was not present in the courtroom. In assessing whether to grant a continuance, the trial court conducted an exparte hearing with the District Attorney - agreed to by defense counsel - in which the trial court agreed with the District Attorney's statement that defense counsel had "known all along, Judge, about this," and expressed his frustration with trial counsel: "I couldn't agree with you more. I'm so mad I could chew nails ." (R. 530.)8 137. Trial counsel's opening and closing arguments at the penalty phase, as well as counsel's argument at the judicial sentencing hearing, were constitutionally deficient and prejudicial . See Dobbs v. 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 of life without parole. When discussing jury instructions, trial counsel expressed surprise at the number of 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 go off the record," and nothing else about their conversation is recorded. (R. 532.) Because defense counsel declined to be involved in this hearing, and failed to ensure the presence of his client at all of these hearings, defense counsel did not have the opportunity to object to any improper decisions, or to effectively advocate on his client's behalf.

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L nau h, 492 U.S. 302, 316 (1989 )). At the judicial sentencing hearing, trial counsel's argument covered less than three pages in the transcript and consisted primarily of defense

' counsel's explanation that the jury's recommendation should be given "great weight." (R.

58.)
138. Trial counsel then failed to present any additional evidence to the judge, instead 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 the y 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 Present Inde pendent Expert Witnesses at the Sentencing and Penal Phases of Mr. Jackson's Trial

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140. Trial counsel also failed to obtain and present independent expert witnesses at
the sentencing phase of Mr. Jackson ' s trial . Expert witnesses such as a social worker, an investigator, and a mental health expert would have explained the likely causes of Mr. Jackson ' s mental and emotional problems and how those problems were relevant both to Mr. Jackson ' s defense and to his moral culpability. 141. An investigator "who has received specialized training [would have been] indispensible [in] discovering and developing the facts [that would have been] unearthed at trial . . . ." American Bar Association, Guidelines for the Appointment and Performance of

Counsel in Death Penalt y 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 psychosocial history of Mr . Jackson , such an expert would have "analyzed the significance of the information in terms of impact on development, including effect on [Mr. Jackson's] personality and behavior ." Id. Had a social worker or mitigation specialist been called, he

or she would have explained to the judge and the jury the multiple risk factors present in
Shonelle ' s life and how they affected his actions and development.

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143. A mental health expert would have gathered information relating to Mr. 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 in also assisted counsel p have 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

1 1 1

then have synthesized this evidence for the jury and the court, and would have elucidated how these factors resulted in an impaired and suggestible individual. 145. Trial counsel's failure to obtain and present independent expert witnesses at the sentencing phase constituted deficient perfonnance that prejudiced Mr. Jackson. Such

' evidence would have made it clear to both the jury and judge and that appropriate punishment for Mr. Jackson was life without the possibility of parole. But for counsel's 1 deficient performance, the outcome of Mr. Jackson's trial would have been different and he 1 would not have been sentenced to death.

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146. Trial counsel 's failure to investigate and present a compelling empathetic portrait of Mr. Jackson to the jury and judge constitutes ineffectiveness. This performance cannot be characterized as strategic . By failing to present a full picture of Mr. Jackson to the jury and trial court , trial counsel "precipitated a breakdown in the adversarial process" and violated Mr. Jackson ' s constitutional rights under state and federal law. Collier , 177 F.3d at 1204 . Mr. Jackson has a right , " indeed a constitutionally protected right to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer." Williams , 529 U . S. at 420 . reversed. 4. Trial Counsel were Ineffective for Failin to Object to the Method of Execution in Alabama as Cruel and Unusual 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 Therefore, Mr. Jackson's death sentence must be

'

unusual punishment . See, infra, issue XVII (incorporated by reference).

5. Trial Counsel Were Ineffective for Failing to Object to the Double Countin of Robbe as an Element of the Capital Offense and as an Aggravating Circumstance

148. Trial counsel failed to object to the double counting of robbery as both an

element of the capital offense and as an aggravating circumstance used to sentence Mr. Jackson to death . See Gregg v. Georgia , 428 U.S. 153 ( 197 6) . Such error failed to narrow
' 57

the class of cases eligible for the death penalty and exposed Mr. Jackson to two punishments as a result of being convicted of a single charge. Counsel's failure to object constitutes

' ineffective assistance of counsel. See, infra, issue XXIX (incorporated by reference). 6. Trial Counsel Failed to Object to the Death Sentence in this Case as Disproportionate, in Violation 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 Trial Counsel Denied Mr. Jackson Effective Representation at the Penal and Sentencin Phases 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, I
58

1 1 1 1 1 1 1 1 1

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, AND A 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

1 1

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

1 1 1 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

1 1 1

judge , or other individuals associated with Mr . Jackson's case . Jurors David Davis, William Davis and Robert Hodgson all knew Judge Gordon but did not disclose this 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 Ashle y Dicke y Walden failed to disclose that she has several friends in

C.^

the Montgomery County Police Department when asked during voir dire.
' 155. One of the critical issues at Mr. Jackson ' s trial was who fired the shot that killed Mr. Moore . Several of the jurors failed to disclose that they owned guns in response

' to a q uestion 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 j ury to try Mr. Jackson ' s case, and without it, Mr. Jackson's rights were violated. ' 156. The jurors were instructed that their function during the guilt phase was only J 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

been 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

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

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 j ury, 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 THE DEFENSE THUS VIOLATING MR. JACKSON ' S FEDERAL AND STATE 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 supp ression by the prosecution of evidence favorable to an accused upon T request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution ." Id. at 87. ' case,In failed to turn over to defense counsel the evi 166. the State 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. Jackson has received strongly indicates that additional discoverable material exists: (a) In Gerard Burdette 's April 26, 1997 statement to Corporal D. Cunningham, he stated that he thought an individual named P.J. was responsible for the victim's death . Notably, Mr. Burdette did not reference P.J.'s real narne nor did he ' mention the name Jay. However, while interviewing witness Lacrema Moore on April 26, 1997, Detective A . J. Signore suggested that P .J.'s real name is Patrick Stinson . He also suggested that someone named Jay hung around with ' an individual named "Big Leon ." None of the offense reports or statements provided by the District Attorney's office explain how Detective Signore 65

VR4 . NoT Q C) 1^-- S

1
learned P.J.'s real name or obtained information referring to an individual named 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 the scene 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 drawn by Ms. Moss for Detective Signore. V, (3c-J`l (c) As indicated in a April 2 8, 1997 offense report, after witnessing three AfricanAmerican men on his property , A.C. Porterfield contacted Deputy Smithy at the Montgomery County Sheriffs Department. Mr. Jackson ' s trial counsel never received any information from the Montgomery County Sheriff's Department relating to this complaint . \,.J .K^ (d) In his statement to law enforcement officials, Antonio Barnes recalled returning with Shonelle Jackson, and an individual named Roderick Crawford (a.k.a. Fido), to Old Hayneville Road the day after the incident. Law enforcement officials interviewed many individuals named by the codefendants as people they Caine in contact with after the alleged incident. However, no offense reports relating to Roderick Crawford or interviews with Mr. 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 received the results of any tests or examinations that were performed on the inside of these automobiles . It is unreasonable to believe that the State would not have conducted any tests of the interior of either car in order to ascertain whether or not the seats or upholstery contained evidence of blood , hair, or other fibers, especially because Shonelle Jackson was initially charged with shooting into the car . Nok%tc (f) Other gaps in the evidence indicate that the State has not provided all of the required evidence to Mr. Jackson. [fir. Jackson's co-defendants understood there to be a verbal agreement by which they would receive lesser sentences in exchange for their testimony against Shonelle Jackson. Nonetheless, statements to at least one co-defendant's trial judge and statements made by that court indicate that the co-defendants' sentencing was deeply intertwined with the State's having already secured a conviction and sentence against Shonelle Jackson. Evidence of these deals between the co-defendants and the

66

i
prosecution 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 with her, they asked her to accompany them to her former residence. No evidence or information obtained during these meetings were provided to Mr. Jackson's trial 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 IS MENTALLY RETARDED VIOLATES THE EIGHTH AND FOURTEENTH 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 retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our "evolving standards of decency," we therefore conclude that such punishment is excessive and that the Constitution "places a substantive restriction on the State's power to take the life" of a mentally 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

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 'O establishes 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 FEDERAL RIGHTS

0;^Vj

'The American Association of Mental Retardation and the American Psychiatric Association both define subaverage intellectual functioning to include individuals with IQ's of between 70 and 75 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 longrange 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 available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom 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 BY FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE 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

71

1 1 1 1 1 1 i 1 1 1 1 1 1 1 1 1 1 1

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 S 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 BY DENYING MR. JACKSON A CONTINUANCE TO SECURE A CRITICAL 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

73

pretrial motion for a continuance to secure a material witness as all three Saranthus factors were met. The expected witness was unquestionably material and competent. The witness, Gerard Burdette, was an eyewitness to the shooting, (R. 19), and gave a statement to the police which supported Mr. Jackson's defense theory. Jackson made "a good-cause showing" as to the probability that Burdette would testify if the case were continued. See Pilley v. State, 789 So. 2d 870 (Ala. Crim. App. 1998) (overruled on other grounds) (moving

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). I 185. Mr. Jackson met all three of this Court' s requirements for obtaining a continuance in order to secure a missing witness . The trial court' s failure to grant a 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 COURTROOM WHILE 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 I

IX.

THE STATE IMPROPERLY OBTAINED MR. JACKSON'S CONVICTION 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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1
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 CHALLENGES DISCRIMINATED 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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I
I

State, 673 So. 2d 791 (Ala. Crim. App. 1995) (principles of Batson and its progeny extended to gender discrimination). In addition, there was a lack of meaningful voir dire and the district attorney for Montgomery County has a history of racial discrimination in jury =e selection . See, 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. 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

1 I

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 WAS UNCONSTITUTIONAL.

195. In Cage v. Louisiana, 498 U.S. 39 (1990), the United States Supreme Court
reversed a conviction because the trial court gave an improper reasonable doubt instruction. The trial court in Cage erroneously defined " reasonable doubt" as "an actual substantial

doubt" and "such doubt as would give rise to a grave uncertainty," and indicated that in order

to convict the jury need not find guilt to "an absolute or mathematical certainty," but only to
a "moral certainty." Id. at 364. Since Cage, courts must reverse convictions "where there is a reasonable likelihood that the jury understood the instruction to allow conviction based on

78

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

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 PHOTOGRAPHS THAT 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

79

photographs is not only a violation of state law, but also infringes on Mr. Jackson's rights to

1 1 1 i 1 i 1 1 1 1 1 1 1 1 1 1

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'S CHALLENGES 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
80

II
I could follow the law, the trial court erred in granting the state's challenge for cause as to these jurors . Wainwright v. Witt, 469 U.S. 412, 424 ( 1985). 202. Moreover, the use of strikes for cause or the use of peremptory strikes to exclude jurors with reservations about the death penalty is unconstitutional because jurors with reservations about the death penalty possess a commonality that makes them a

1
1 1 1 1

cognizable group. Although in Lockhart v. McCree, 476 U.S. 162 (1986), the Court did not
find that such jurors are a cognizable group under the Sixth Amendment, the Court has embraced a broader definition of cognizability under the Equal Protection Clause of the Fourteenth Amendment in the Batson context . See e . g., Powers v . Ohio, 499 U.S. 400 (1991); J.E.B. v. Alabama, 511 U.S. 127 (1994). 203. The exclusion of these jurors violated their rights to equal protection as well as Mr. Jackson's rights to due process, equal protection, a jury comprised of a fair cross section of the community, an impartial jury, a fair trial and a reliable sentencing guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution,

I the Alabama Constitution, and Alabama law.

XIV. THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE THAT DID 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
81

1 1 1 1 1 1 1 1 1 1

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 (Ala. Crim. App. 1990). 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.

82

1 1 1 1 1 1 1 1 1

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 THE CAPITAL OFFENSE AND AS AN AGGRAVATING CIRCUMSTANCE WAS IMPROPER. 207. An aggravating circumstance the state presented at the penalty-phase of the

trial was that Mr. Jackson been found guilty of committing an intentional murder during the course of a robbery. This conviction rendered him eligible for the death penalty under Alabama law. The trial court gave weight to this conviction in sentencing Mr. Jackson to death. The "double counting" of Mr. Jackson's robbery conviction in this case was improper

and unconstitutional.

208. The Alabama Supreme Court has held that double counting does not offend the

83

1 1 1 1 1 1 1 1 1 1

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 penaltyphase 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 EXECUTION CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT ' 210. The Eighth Amendment requires states to take all feasible measures to minimize the risk of cruelty in administering capital punishment. See Zant v. Stephens, 462 U.S. 862 (1983). Electrocutions in Alabama are characterized by the use of faulty equipment,

unqualified personnel, and inadequate procedures which result in body charring and electrical burns to the backs, thighs, arms, and abdomens of condemned prisoners . If Mr. Jackson is
executed in Alabama's electric chair, his death likely will be slow and excruciating, his body burned and mutilated . The Eighth Amendment cannot be construed to uphold the kind of

error that has attended electrocutions in Alabama.

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 THE ABOVE ERRORS ENTITLES MR. JACKSON TO RELIEF 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

^w

(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. Setzer Equal Justice Initiative of Alabama 122 Commerce Street Montgomery, AL 36104 334-269-1803 Counsel for Mr. Jackson

Dated: March 31, 2004 ATTORNEY'S VERIFICATION abel ief, I swear under penalty of perjury that, upon in rmatr the foregoing is true and correct. Signed on March 31, 2004. n la . Counsel for Mr. Jackson

SWORN AND SUBSCRIBED before me this the A l4 Notary Public

day of

MM4

c l , 2004.

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

86

lk^

CERTIFICATE OF SERVICE

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

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 McIntire Office of the Attorney General Alabama State House 11 South Union Street Montgomery, AL 36130

Angela L. Setzer

87

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

SHONELLE ANDRE JACKSON, Petitioner, v.

STATE OF ALABAMA, Respondent. STATE OF ALABAMA ' S ANSWER TO JACKSON ' S AMENDED PETITION FOR RELIEF FROM CONVICTION AND DEATH SENTENCE

CC-1997-2300.60

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)

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

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 32 petition. 4

1 1 1 1 1
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 from alleging his or her own ineffectiveness are not present in a claim of this nature, because an attorney claiming that he or she was deprived of funds sufficient to mount an adequate defense is not necessarily admitting to having made poor strategic choices or unprofessional mistakes, but is instead asserting that despite the best intentions to act in the client's behalf, the attorney's performance has been improperly hampered by forces beyond 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 from rendering legally effective assistance, if they believed this to be the case.

Li
1

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.

Ii
II
11

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 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

1
Criminal 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 n o t raising a claim this court h as a l rea d y f oun d to b 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 Effective
Assistance 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

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.

12. This claim is contained in paragraphs 18-27

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 as follows:

These claims are answered

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 that trial 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 of failure to investigate must show with specificity what 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 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).

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 counsel did

objecting to the State's motion in limine,

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 ineffective for failing to adequately meet with Jackson ' s family. a) Based on the trial record, this claim is due to be summarily 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. 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 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)

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. 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.
c) The claim that trial counsel was ineffective for failing to adequately meet with or interview the State's witnesses or other individuals whose testimony would have undermined the State' s case.

a) Based on the trial record, this claim is due to be summarily 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. In his 12

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

counsel did

objecting to the State's motion in lirnine,

present the same evidence that Jackson asserts should

have been presented in response to t h e State ' s mo ti on

'

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

1 1

13

fact exists which would entitle Jackson to relief and

no purpose would be served by any further proceedings. b) Alternatively, this claim is denied.
d) The claim that trial counsel was ineffective for failing to locate and interview Gerard Burdette. a) Based on the trial record, this claim is due to be summarily dismissed pursuant to Ala. R. Crim. P.

32.7(d)

because no material i ssue of law or fact exists

which would entitle Jackson to relief and no purpose

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 counsel did

objecting to the State's motion in limine,

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

thatthe victim and defendant were drug dealers and the

14

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. 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) 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, 939-941 (Ala. Crim. App.

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 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.
c) Alternatively, this claim is denied.
2. The Claim That Counsel Was Ineffective For Failing To "Procure Necessary Expert Assistance".

13. This claim is contained in paragraphs 28-38

and contains separate sub-claims. These claims are answered as follows: a)The claim that trial counsel was ineffective for failing to procure the assistance of a firearm and projectile expert. a) Based on the trial record, this claim is due to be summarily dismissed pursuant Ala. R. Crim. P.

16

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. In his 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) Alternatively, this claim is denied.

b)The claim that trial counsel was ineffective for failing to secure the assistance of an expert on eyewitness identifications.

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

be summarily dismissed pursuant Ala. R. Crim. P. 32.7(d) because no material issue of law or fact exists which would entitle Jackson to relief and no purpose

would be served by any further proceedings. In his amended Rule 32 petition, Jackson argues that the State
relied on Leroy Geary to establish that it was the

18

1
person in the driver's seat who shot the victim.

'

(Jackson's Amnd. Pet. at 12) Jackson asserts. that an expert on eyewitness identification would have testified that under the conditions at the time, any
such identification would have been unreliable.

'

However, Leroy Geary never identified Jackson as the

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

Furthermore, Eric Williams and Christopher Rudolph both

identified Jackson as the driver and shooter in this

'

case. R.386, 438). Far from relying on Leroy Geary's ( testimony to establish that the person in the driver's side of the vehicle that was responsible for murdering

' '

the victim, the State presented multiple eyewitnesses

' who testified that Jackson was the shooter. As such,. even if trial counsel had procured an ' expert to testify that Leroy Geary's testimony was unreliable, other overwhelming evidence existed that Jac k s o n was the shooter. Therefore, Jackson cannot

establish deficient performance or prejudice under

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

would entitle Jackson to relief and no purpose would be

served by any further proceedings.

b) Alternatively, this claim is denied. 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

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 procure the services of an investigator and/or social worker. His pleading does not include any facts which

an investigator or social worker would have uncovered

that, if presented by trial counsel, would have

resulted in a different outcome during the guilt phase.

Under Rule 32.7(d), Ala.R.Crim.P., any claim of

ineffective assistance of counsel that is not sufficiently pleaded is due to be dismissed. ("If the
court determines that the petition is not sufficiently

20

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). 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. c) Alternatively, this claim is denied. d)The claim that trial counsel was ineffective for failing to procure the assistance of a mental health expert. a) 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 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

'
'

spec ifi ca ll y id en tif y any men t a l i mpa i rmen t s h 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 pet i t i on " ). Jackson ' s cla i 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 ineffective for failing to procure the 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 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) .

b) Alternatively, this claim is denied.

3. The Claim That Counsel Was Ineffective For Failing To Effectively Challenge The State ' s Investigation And Presentation Of The Case.

14. This claim is contained in paragraphs 39-65 and contains numerous sub-claims. These claims are

answered as follows:
a. The claim that trial counsel was ineffective for failing to timely file a Youthful Offender Application. a) Based on the trial record, this claim is due to

be summarily dismissed pursuant Ala. R. Crim. P. 25

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 . 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 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) . c) Alternatively, this claim is denied. b. The claim that trial counsel was ineffective for failing to challenge Jackson ' s underlying convictions.

a) 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

27

1
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 court determines that the ' ' Petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner
to relief under this rule and that no purpose would be served. by any further proceedings, the court may either dismiss the petition or grant leave to file an amended

'

petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of

'

R u l e 32 . 6(b) ,

32 . 3 ,

Al a.

R.

C r i m.

P .;

th ere f ore,

it i s

due to be summarily dismissed by the Court. Ala. R.

Crim. P. 32.7(d).

1
' '

b) 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 summarily dismissed by the Court. Ala. R. Crim. P.

32.7 (d) .
b) Alternatively, this claim is denied.
d. The claim that trial counsel was ineffective for shifting the burden of proof during jury selection.

a) Based on the trial record, this claim is due to be summarily 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. The record indicates that at the close of testimony during the guilt phase, the trial court instructed the jury as

to the law:
We are that point in the proceedings where it is my duty to tell you what the law of this case is

29

and how you will go about arriving at a verdict 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 burden entirely on the State of Alabama to prove his guilt beyond a reasonable doubt before you find him guilty. Because the burden rests entirely on the State, we say he starts his trial -- Mr. Jackson starts his trial with a clean slate presumed not to be guilty because Mr. Jackson 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 to be dismissed pursuant to Ala. R. Crim. P. 32.7(d)

for failing to state a claim upon which relief may be

granted. b) Alternatively, this claim is denied. e. The claim that trial counsel was ineffective for failing to remove

30

1
' certain jurors and for failing to secure a jury expert.

a) 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 identify any

'

jurors that trial counsel should have removed nor does Jackson explain how a jury expert would have assisted
i n vo i r di re. ( "If th e cour t d e t erm in e s that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of

fact or law exists which would entitle the petitioner

' to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended

' '
'

petition " ). Jackson ' s claim fails to comply with the specificity and full factual pleading requirements of
Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Cr i m. P. 32 . 7 (d).

'

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
cannot prevail on a claim of ineffective assistance of counsel when the Court of Criminal Appeals has ruled that the ground for the claim was without merit. See

Dobyne v. State, 805 So. 2d 733, 744 (Ala. Crim. App.

2000)("A 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. b)

'

Alternatively, this claim is denied.

g. The claim that trial counsel was ineffective for failing to adequately
raise and argue Batson and J.E.S.

objections. 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, 946-948 (Ala. Crim. App. 1999). The 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

(A l a .

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 alread y found to be 33

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.

b) Alternatively, this claim is denied.

h. The claim that trial counsel was ineffective for failing to adequately investigate and cross -examine certain witnesses.

a) 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 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 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.
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 timebarred 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 cannot prevail on a claim of ineffective assistance of counsel when the Supreme Court has ruled that the
ground for the claim was without merit. See Dobyne v. State, 805 So. 2d 733, 744 (Ala. Crim. App. 20,00)("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.

36

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. c) Alternatively, this claim is denied.
j. The claim that trial counsel was ineffective for failing to challenge the State ' s expert ballistic evidence.

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

be summarily 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. In his amended Rule 32 petition, Jackson argues that counsel
was ineffective in its cross-examination of the State's expert on ballistics evidence. Jackson alleges that

trial counsel should have established that the bullet that killed the victim could have come from a different gun. However, the record demonstrates that such 37

1 1
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 ninemillimeter 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

entitle Jackson to relief and no purpose would be served by any further proceedings. 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 crossexamination were 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 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

39

summarily dismissed by the Court. Ala. R. Crim. P. 32.7 (d) .

t) Alternatively, this claim is denied.

k. The claim that trial counsel was ineffective for failing to object to irrelevant and prejudicial evidence. 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, 950-951 (Ala. Crim. App. 1999). The Court of Criminal Appeals held that photos and video
were properly admitted. Jackson cannot prevail on a claim of ineffective assistance of counsel when the

Court of Criminal Appeals has ruled that the ground for the claim was without merit. See Dobyne v. State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A 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 fo.und to be 40

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.
b) Alternatively, this claim is denied. 1. The claim that trial counsel was ineffective for failing to object to evidence without the proper chain of custody. a) This claim should be dismissed as a matter of law because the undet_ILying issue was raised on direct appeal and held to be without merit. Jackson v. State,

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 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 41

(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. b) Alternatively, this claim is denied. M. The claim that trial counsel was ineffective for failing to present a viable defense theory. a) Based on the trial record, this claim is due to be summarily dismissed pursuant Ala. R. Crim. P.

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 fact exists which would entitle Jackson to relief and

no purpose would be served by any further proceedings. 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 crossexamination 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 reiterated that someone else may have fired the fatal shot. (R. 56-57) Clearly, trial counsel viable theory of defense. Furthermore, Jackson's assertions that trial presented a

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

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) 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
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) Alternatively, this claim is denied.
n. The claim that trial counsel was ineffective for failing to give an adequate closing statement.

a) Based on the trial record, this claim is due to be summarily dismissed pursuant to Ala. R. Crim. P. 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 fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. 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

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) 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.
b) Alternatively, this claim is denied.
o. The claim that trial counsel was ineffective for failing to ensure a complete record.

a) 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 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.").
b) Alternatively, this claim is denied.
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

answered as follows:
(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, 938939 (Ala. Crim. App. 1999). 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. 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

47

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.
(b) -Alternatively, this claim is denied.

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.

16. This claim is contained in paragraph 67 and is

answered as follows:
(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, 941943 (Ala. Crim. App. 1999). Jackson cannot prevail on a claim of ineffective assistance of counsel when the

Court of Criminal Appeals ruled that the ground for the 48

claim was without merit. See Dob ne 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.
(b) Alternatively, this claim is denied.
6. The Claim That Counsel Was Ineffective For 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:

(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, 94849

950.(Ala. Crim. App. 1999). 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.

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. (b) Alternatively, this claim is denied.
7. The Claim That Counsel Was Ineffective For Failing To Insure That The Jury Was Instructed About The Accomplice Corroboration Requirement.

18. This claim is contained in paragraphs 69-70

and is answered as follows:

50

(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 9.15, 946 (Ala. Crim. App. 1999). 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. 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.
(b) Alternatively, this claim is denied.
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.

19. This claim is contained in paragraph 71 and is

answered as follows: (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 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.

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 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, 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) Alternatively, this claim is denied.
' B. The Claim That Jackson Was Denied Effective Assistance Of Counsel During . The Penalty And Sentencing Phases of His Trial.

20. This claim is contained in paragraphs 72-150 ' 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 to identify any evidence or information that would have ' 53

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.

21. This claim is contained in paragraphs 74-135 and is answered as follows: a) This claim is denied.
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.

22. This claim is contained in paragraphs 136-139

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 The

Penalty 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 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.

i^

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.").

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 indicate how those acts or omissions prejudiced his
defense."). b) Alternatively, this claim is denied.
4. The Claim That Counsel Was Ineffective For Failing To Object To Alabama ' s Method Of Execution As Cruel And Unusual Punishment.

24. This claim is contained in paragraph 147 and is answered as follows: 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.
b) Alternatively, this claim is denied.
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.

25. This claim is contained in paragraph 148 and is answered as follows:

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, 958959 (Ala. Crim. App. 1999). 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.

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

manifest injustice under the `plain error' standard on

57

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 pursuant to Rule 32.7(d) of the Ala. R. Crim. P. b) Alternatively, this claim is denied.
6. The Claim That Counsel Was. Ineffective For Failing To Object To The Death Penalty In This Case As Disproportionate.

26. This claim is contained in paragraph 149 and

is answered as follows: 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, 965 (Ala. Crim. App. 1999). Jackson cannot prevail on a

claim of ineffective assistance of counsel when the 58

Court of Criminal Appeals ruled that the ground for the claim was without merit. See Dobyne v. State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A finding of no
manifest injustice under the `plain error' standard on

direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington");
Callahan v. State, '767 So. 2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for

not raising a claim this court has already found to be

without merit"). The ground which underlies Jackson's

claim of ineffective assistance of counsel has been

held to be without merit and, as a result, this claim should be dismissed as a matter of law pursuant to Rule 32.7(d) of the Ala. R. Crim. P.

b) Alternatively, this claim is denied.

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.

27. This claim is contained in paragraph 150 and is answered as follows:

59

1
a) This claim should be dismissed pursuant to

Ala. R. Crim. P. 32.7(d) as a matter of law because I 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 reasonable.. The court professional judgment. ' 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 the petition 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 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, 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) Alternatively, this claim is denied.

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.

28. This claim is contained in paragraphs 151-163 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 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). 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 codefendants, 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 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 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 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). 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 codefendants. 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 entitle Jackson to relief and no purpose would be served by any further proceedings. 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 the petitioner 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 is innocent 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.

30. This claim is contained in paragraphs 169-174

and is answered as follows: 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.

30. This claim is contained in paragraphs and is answered as follows:

175-177

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. 2d 544, 551 (Ala. See e.g., Crim. App. Daniels v. State, 650 So.

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 . Ford , See e.g., Ex parte denied, 114

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

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) Alternatively, this claim is denied.

69

VI. THE CLAIM THAT THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF ROBBERY.

31. This claim is contained i n paragraphs 178-181 and is answered as follows: 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, 938-939 (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. 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). c) Alternatively, this claim is denied.
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 is answered as follows:

a) This claim is procedurally barred from review

because it was raised or addressed at trial. (R. 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).

b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson
v. State, 836 So. 2d 915, 939-941 (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,

71

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) Alternatively, this claim is denied.
VIII . THE CLAIM THAT THE TRIAL COURT IMPROPERLY LEFT THE COURTROOM WHILE THE JURY WATCHED JACKSON'S VIDEOTAPED STATEMENT.

33. This claim is contained in paragraphs 186-187 and. is answered as follows: 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 arte 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, 941-943(Ala. Crim. App. 1999).. Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama 72

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) Alternatively, this claim is denied.
IX. THE CLAIM THAT THE STATE IMPROPERLY OBTAINED JACKSON'S CONVICTION BY UNCORROBORATED ACCOMPLICE TESTIMONY.

34. This claim is contained in paragraphs 188-191 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.

a) This claim is procedurally barred from review

because it was raised or addressed at trial. (R. 2673

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). b) This claim is procedurally barred from review 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 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) Alternatively, this claim is denied.

B. The Claim That The Trial Court Erred In Failing To Instruct The Jury About The Accomplice Corroboration Requirement.

74

35. This claim is contained in paragraph 191 and is answered as follows: 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.
2d 544, 551 (Ala.

See e.g.,
Crim. App.

Daniels v.

State, 650 So.

1994); Exparte 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, 946 (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).
75

c) Alternatively, this claim is denied.

X. THE CLAIM THAT THE STATE'S USE OF ITS PEREMPTORY CHALLENGES DISCRIMINATED ON THE BASIS OF RACE AND GENDER.

36. This claim is contained in paragraphs 192-194

and is answered as follows: 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., Daniels v. State, supra; Holladay v. State, 629 So. 2d 673, 678 (Ala. Crim. App. 1992), cert. denied, 510 U.S.

1171 ( 1994).
b) The J.E.B. 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).

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.

37. This claim is contained in paragraphs 195-198

and is answered as follows: 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 77

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, 948-950 (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 . p arte Ford , 630 So. 2d 115 See e.g., Ex

(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) Alternatively, this claim is denied.
XII. THE CLAIM THAT THE TRIAL COURT IMPROPERLY ADMITTED PHOTOGRAPHS THAT SERVED ONLY TO INFLAME AND PREJUDICE THE JURY.

38. This claim is contained in paragraphs 199-200 and is answered as follows: a) This claim is procedurally barred from review because it could have been but was not raised or 78

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, 950-951 (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. Cram. 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) Alternatively, this claim is denied.
XIII. THE CLAIM THAT THE TRIAL COURT IMPROPERLY GRANTED THE STATE'S CHALLENGES OF JURORS FOR CAUSE.

79

39. This claim is contained in paragraphs 201-203 and is answered as follows: 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); Expar_te 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, 951-953 (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). 80

c) Alternatively, this claim is denied.

XIV. THE CLAIM THAT THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE THAT DID NOT HAVE A PROPER CHAIN OF CUSTODY.

40. This claim is contained in paragraph 204 and is answered as follows: a) This claim is procedurally barred from review because i t was raised or addressed at trial. (R. 499500) 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). b) This claim is procedurally barred from review

because it was raised and addressed on appeal. Jackson v. State, 836 So..2d 915, 953-955 (Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama 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

81

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) Alternatively, this claim is denied.,
XV. THE CLAIM THAT THERE WAS INSUFFICIENT EVIDENCE TO CONVICT JACKSON OF CAPITAL MURDER.

41. This claim is contained in paragraphs 205-206

and is answered as follows: 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, 955-958 (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, 82

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) Alternatively, this claim is denied. XVI. THE CLAIM THAT DOUBLE COUNTING ROBBERY AS AN
ELEMENT OF THE CAPITAL OFFENSE AND AS AN AGGRAVATING CIRCUMSTANCE WAS IMPROPER.

42. This claim is contained in paragraphs 207-209 and is answered as follows:

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. 2d 544, 551 (Ala. See e.g., Crim. App. Daniels v. State, 650 So.

1994); Ex p arte Sin gleton,

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, 958-959 (Ala. Crim. App.

1999).. Rule 32.2(a)(4), Ala.R.Cri_m.P. and Alabama 83

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) Alternatively, this claim is denied.
XVII . THE CLAIM THAT ALABAMA'S MANNER OF EXECUTION CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.

43. This claim is contained in paragraphs 210-211

and is answered as follows: 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 to meet the requirements of Rules 32.3 and 32.6(b),
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.

44. This claim is contained in paragraph 212 and is answered as follows: 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 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). b) This claim is procedurally barred from review because it was raised or addressed on appeal. Jackson
v. State, 836 So. 2d 915, 964 (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 . Ford, 630 So . 2d 115 See e.g ., Ex parte

(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) Alternatively, this claim is denied.

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.

Respectfully submitted,

Troy King Attorney General

erem W. Mclntire Assistant Attorney General Counsel of Record *

State of Alabama
Office of the Attorney General 11 South Union Street Montgomery, AL 36130-0152

May 31, 2004 (334)' 353-4014 * 89

CERTIFICATE OF SERVICE

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 Angela L. Setzer Equal Justice Initiative of Alabama 122 Commerce Street Montgomery, AL 36104

/% A,1 A.,/ rV 4t-,

ere W. McIntire Assistant Attorney General Counsel of Record *

ADDRESS OF COUNSEL: Office of the Attorney General Capital Litigation Division Alabama State House 11 South Union Street Montgomery, AL 36130 (334) 353-4014 *

90

Page 2 of 48

Westlaw.
836 So.2d 915
(Cite as : 836 So .2d 915) Page 1

Court of Criminal Appeals of Alabama. Shonelle Andre JACKSON V. STATE. CR-97-2050. May 28, 1999. Rehearing Denied July 9, 1999.

111 Criminal Law X1030(1) 110k1030(1) Most Cited Cases Although the lack of an objection at trial will not bar appellate review of an issue in a death penalty case, the lack of an objection will weigh against any claim of prejudice. Rules App.Proc., Rule 45A. 121 Criminal Law X1030(1) 110k1030(l) Most Cited Cases The plain error exception to the contemporaneous objection rule is to be used sparingly, solely in those circumstances in which a miscarriage of justice 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 for appellate review claim that trial court improperly granted state's motion in limine preventing defense from presenting evidence that victim was drug dealer, and, thus, claim was subject to plain error review, where trial court indicated willingness to reconsider ruling on motion and defendant did not raise 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 suffers an adverse ruling on the opposing party's motion in limine, the adverse ruling alone, unless absolute or unconditional, does not preserve the issue for appellate review. 151 Criminal Law X1035(2) 11Ok1035(2) Most Cited Cases Grant of state's motion in limine preventing defense from presenting evidence that capital murder victim was drug dealer did not constitute plain error, where allegation that murder was committed in retaliation for bad drug deal was not presented until after state filed motion, defendant failed to mention bad drug

Defendant was convicted in the Montgomery Circuit Court, No. CC-97-2300, William R. Gordon and Tracy S. McCooey, JJ., of capital murder and first-degree theft of property. He appealed. The Court of Criminal Appeals, Baschab, J., held that: (1) defendant voluntarily gave inculpatory statement to police; (2) trial court properly used defendant's juvenile record to assess weight it would assign to statutory mitigating circumstance of defendant's age at time of offense; (3) failure to instruct jury on lesser included offense of robbery did not constitute plain error; (4) denying motion for continuance to allow defendant time to secure attendance of allegedly critical witness was not an abuse of discretion; (5) admission of photographs and videotapes did not constitute plain error; (6) granting state's challenges for cause as to prospective jurors did not constitute plain error; (7) evidence was sufficient to support conviction for capital offense of murder committed during firstdegree robbery; (8) using robbery as both element of capital offense and as aggravating circumstance did not violate double jeopardy; (9) trial court did not improperly override jury's unanimous sentencing recommendation; and (10) death sentence 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

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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 indicated willingness to reconsider ruling on motion if defendant informed court that he intended to testify, but defendant failed to so inform court and failed to raise issue again. Rules App.Proc., Rule 45A. [61 Criminal Law X1044.2(1) 110k1044.2(l) Most Cited Cases Capital murder defendant 's claim that circumstances surrounding his interrogation were coercive was subject to plain error review , where defendant failed to allege specific facts in motion to suppress to support claim . Rules App.Proc., Rule 45A. 171 Criminal Law 412.1(4) 110k412.1(4) Most Cited Cases Detective's misrepresentation that capital murder defendant's fingerprints were found on soda cup recovered from stolen vehicle involved in murder did not render defendant's inculpatory statement involuntary, where defendant initiated contact with police, defendant was not subjected to lengthy interrogation, by making misrepresentation detective was attempting to inform defendant that he had already been connected with vehicle so that defendant would be truthful in making statement, defendant had previously been arrested on other charges, and there was no evidence that defendant was threatened or coerced or that officers promised defendant anything in exchange for statement. (8] Criminal Law X414 I I Ok414 Most Cited Cases 181 Criminal Law X531(1) 110k531(1) Most Cited Cases statements are Confessions and inculpatory presumed 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 into evidence, the state must prove that the defendant was informed of his Miranda rights and that the confession was voluntarily given . U.S.C.A. Const.Amend. 5. 1101 Criminal Law X1158(4) 110k1158(4) Most Cited Cases

Page 2

Trial court's finding of voluntariness of confession need only be supported by a preponderance of the evidence. [111 Criminal Law 1158,(4) 110k1158(4) Most Cited Cases A trial court's determination as to whether a confession is voluntary will not be disturbed on appeal unless it is manifestly contrary to the great weight of the evidence. 1121 Criminal Law X1144.12 1 l0k1144.12 Most Cited Cases In reviewing the correctness of a trial court's ruling on a motion to suppress, the Court of Criminal Appeals makes all the reasonable inferences and credibility choices supportive of the decision of the trial court. 1131 Criminal Law X1158(4) 11Oki158(4) Most Cited Cases A trial court's ruling on a motion to suppress will not be disturbed unless it is palpably contrary to the great 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 or another inculpatory statement is involuntary is not whether the defendant bargained with the police, but whether in his discussions with the police, which may have included bargaining, the defendant's will was overborne by apprehension of harm 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 overborne when 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 the law enforcement officials in creating pressure and the defendant's capacity to resist that pressure; the defendant's personal characteristics as well as his prior experience with the criminal justice system are factors to be considered in determining the defendant's susceptibility to police pressures. 1161 Criminal Law 412.1(1) I I Ok4 l 2.1(1) Most Cited Cases 1161 Criminal Law 521 110k521 Most Cited Cases Subtle forms of psychological manipulation, such as trickery or deception by the police, have not been considered sufficiently coercive, standing alone, to render a confession or incriminating statement involuntary; instead, the trial judge must examine the totality of the circumstances surrounding the statement 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 court erred in admitting inculpatory statement without first conducting suppression hearing outside jury's presence, was subject to plain error review; although defendant requested hearing in written motion, he did not subsequently object when trial court 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 motion to suppress capital murder defendant's inculpatory statement without conducting hearing outside presence of jury did not constitute plain error, given that statement was voluntarily made. Rules App.Proc., Rule 45. 1191 Sentencing and Punishment 1706 350Hk1706 Most Cited Cases [19J Sentencing and Punishment 1714 350Hkl7l4 Most Cited Cases Trial court properly used capital murder defendant's

Page 3

juvenile record to assess weight it would assign to statutory mitigating circumstance of defendant's age at time of offense, rather than improperly treating juvenile record as nonstatutory aggravating circumstance to override jury's recommendation of life sentence and impose death sentence. 1201 Sentencing and Punishment x1714 35OHk1714 Most Cited Cases 1201 Sentencing and Punishment 1721 350Hkl721 Most Cited Cases Trial court properly considered capital murder defendant's height and weight, in addition to other factors, including defendant's physical maturity, defendant's juvenile record, fact that defendant was father, fact that defendant used marijuana daily since age 14, and fact that defendant consumed alcohol on regular basis, in concluding that defendant was physically mature adult at time of offense, for purpose of determining weight to assign mitigating circumstance of age at time of offense. 121J Sentencing and Punishment 1777 350Hkl777 Most Cited Cases The decision as to whether a particular mitigating circumstance in a capital murder prosecution is sufficiently proven by the evidence and the weight to be accorded to it rests with the trial court. 1221 Sentencing and Punishment 1785(3) 350Hkl785(3) Most Cited Cases sentencing Trial court made individualized in capital murder proceeding; determination although court analyzed mitigating circumstance of age at time of offense in form similar to that used by Florida court, trial court incorporated facts and evidence presented in defendant's case. 123] Sentencing and Punishment 1784(3) 350Hk1784(3) Most Cited Cases Trial court did not base its sentencing determination on speculation about jurors ' residual doubt, but instead carefully considered jury's recommendation in overriding that recommendation and sentencing capital murder defendant to death ; although when trying to test reliability of advisory verdict trial court speculated that jury may have made recommendation 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 that assigning weight to advisory verdict based on testing reliability of advisory verdict was inappropriate. 1241 Sentencing and Punishment 329 35011k329 Most Cited Cases

Page 4

of robbery did not constitute plain error, where defendant contended that robbery was mere afterthought to murder and defendant was at least an accomplice to murder such that there was no rational basis on which jury could find defendant guilty of robbery but not of murder. Code 1975, 13A-1- 9(b); Rules App.Proc., Rule 45A.

Trial court is the sentencing authority.

1251 Sentencing and Punishment 1784(3) 350Hk 1784(3) Most Cited Cases a jury's sentencing Before overriding recommendation of life imprisonment and imposing the death penalty , a trial court must determine that the aggravating circumstances outweighed the mitigating circumstances. ( 261 Sentencing and Punishment 308 350Hk308 Most Cited Cases By necessity, when sentencing, a trial court may rely on information the jury did not hear. 1271 Sentencing and Punishment 1784(3) 350Hk1784(3) Most Cited Cases Trial court made adequate determination of culpability for capital murder, in overriding jury verdict, where trial court stated that evidence showed that defendant shot victim and that defendant was ringleader in offense.

[301 Criminal Law 594(3) I10k594(3) Most Cited Cases

Denying motion for continuance to allow defendant time to secure attendance of allegedly critical witness was not an abuse of discretion, where defendant failed to present any evidence that witness could be located and would testify. and moreover, witness's statement was admitted into evidence by stipulation of prosecution and defense. [31] Criminal Law 586 110k586 Most Cited Cases 1311 Criminal Law 1151 1 IOkI 151 Most Cited Cases A motion for a continuance is addressed to the discretion of the trial court, and the trial court's ruling on the motion will not be disturbed unless there is an abuse of discretion. 1321 Criminal Law 594(1) 110k594(1) Most Cited Cases A trial court should grant a motion for continuance on the ground that a witness or evidence is absent if the following principles are established: (1) the expected evidence must be material and competent; (2) there must be a probability that the evidence will be forthcoming if the case is continued; and (3) the moving party must have exercised due diligence to secure the evidence.

(28] Criminal Law 1038.2 1 lOk1038.2 Most Cited Cases

1281 Criminal Law X1038.3 I I Okl038.3 Most Cited Cases Claim that trial court should have instructed jury on lesser included offense of robbery was subject to plain error review, where capital murder defendant did not request robbery instruction and did not object when instruction was not given. Rules App.Proc., Rule 45A. 1291 Criminal Law 795(2.50) 110k795(2.50) Most Cited Cases Failure in prosecution for capital offense of murder committed during commission of first-degree robbery to instruct jury on lesser included offense

[331 Criminal Law 1035(3) I I0k1035(3) Most Cited Cases 133] Criminal Law 1039 I10k1039 Most Cited Cases
Claims that trial judge improperly left courtroom while jurors viewed capital murder defendant's videotaped statement and that trial judge improperly allowed court reporter to admonish jurors to avoid media exposure, not to discuss case, and to be back

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

at 9:30 next morning were subject to plain error review, where defendant failed to present claims to trial court . Rules App.Proc., Rule 45A. 1341 Criminal Law IC;=1035(3) 110ki035(3) Most Cited Cases (34] Criminal Law x1039 110ki039 Most Cited Cases Trial judge's actions of leaving courtroom while jurors viewed capital murder defendant's videotaped statement and of allowing court reporter to admonish jurors to avoid media exposure, not to discuss case, and to be back at 9:30 next morning did not constitute plain error, where judge was not absent during counsels' arguments , examination of witnesses, or handing down of verdict, judge stated that he had previously viewed videotape and instructed jurors about videotape before leaving, court adjourned for day immediately after videotape was played, court reporter made same comments to jurors that judge had made when court previously adjourned for day, and defendant failed to allege that error occurred during judge's absence. Rules App.Proc., Rule 45A. 1351 Criminal Law I166.21 11 Oki 166.21 Most Cited Cases The rule that it is the presiding judge's duty to be visibly present during every moment in a trial so that he can always see and hear all that is being said and done does not mandate a reversal in every instance 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 capital murder; in addition to defendant 's conduct and inculpatory statements to law enforcement officials, state introduced eyewitness testimony and physical evidence connecting defendant with offense. Code 1975, 12-21-222. (371 Criminal Law 511 . 1(2.1) 110k511.1(2.1) Most Cited Cases

Page 5

While evidence corroborating an accomplice's testimony need not be strong, it must be of substantive character, be inconsistent with defendant's innocence, and do more than raise a suspicion of guilt. Code 1975, 12-21-222. (381 Criminal Law 511.2 110k511.2 Most Cited Cases The means for determining if there is sufficient evidence to corroborate an accomplice's testimony is to set aside the accomplice ' s testimony and determine whether the remaining evidence tends to connect the defendant with the commission of the offense. Code 1975, 12-21-222. 1391 Criminal Law 74l(5) 110k741(5) Most Cited Cases Whether evidence corroborating an accomplice's testimony exists is a question of law to be resolved by the trial court; the evidence's probative force and sufficiency are jury questions. Code 1975, 12-21-222. (40] Criminal Law 511.3 1 lOk511.3 Most Cited Cases Circumstantial evidence is sufficient to show corroboration of an accomplice 's testimony. Code 1975, 12-21-222. 141] Criminal Law 511.1(1) 110k511.1(1) Most Cited Cases A combination of facts may be sufficient to corroborate an accomplice's testimony even though each 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 confirm any particular fact nor go to every material fact stated by an accomplice. Code 1975, 12-21-222. 1431 Criminal Law 511.1(7)

110k511.1(7) Most Cited Cases

Even assuming codefendants were accomplices to capital murder, the state was not required to present corroborative evidence as to each element of the

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

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

offense or as to each fact about which accomplices testified; rather, state was simply required to present other evidence that tended to connect defendant to commission of the offense. Code 1975, 12-21-222.

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subject to plain error review, where capital murder defendant failed to present claim to trial court. Rules App.Proc., Rule 45A.

1491 Criminal Law X1038.1(5) 110k1038.1(5) Most Cited Cases

Reasonable doubt instruction., providing in part that reasonable doubt may arise from all, part of, or lack of evidence, that state does not have to prove defendant guilty beyond all doubt, beyond shadow of doubt, or to mathematical certainty, and that proof beyond a reasonable doubt is proof of such convincing character that you will be willing to rely and act upon it without hesitation in most important of your affairs, did not improperly lower state's burden of proof and did not constitute plain error, where there was no reasonable likelihood that jury applied instruction in manner that would violate rights. U.S.C.A. defendant' s constitutional Const.Amend. 14; Rules App.Proc., Rule 45A. 1501 Criminal Law X1036.1(6) I lOklO36.1(6) Most Cited Cases Claim that trial court improperly admitted in capital murder prosecution photographs and videotapes was subject to plain error review, where defendant failed to object to their admission at trial. Rules App.Proc., Rule 45A. 1511 Criminal Law X1036.1(6) 110k1036.1(6) Most Cited Cases Admission of photographs depicting character and location of capital murder victim's wounds did not constitute plain error, where photographs were not unnecessarily gruesome or gory and defendant failed to show how admission of photographs affected or probably affected his substantial rights. Rules App.Proc., Rule 45A. 1521 Criminal Law X1036.1(6) 110k1036.1(6) Most Cited Cases Admission in capital murder prosecution of photographs and videotapes depicting crime scene, vehicles involved in offense, and recovered evidence did not constitute plain error, where photographs and videotapes were relevant and defendant failed to show how admission of photographs and videotapes affected or probably affected his substantial rights. Rules App.Proc.,

1 1 1 1

1441 Criminal Law 1038.2 110k1038.2 Most Cited Cases 1441 Criminal Law X1038.3 110k1038.3 Most Cited Cases
Claim that trial court erred by failing to instruct jury that accomplice testimony must be corroborated by other evidence was subject to plain error review, where capital murder defendant failed to request such instruction and did not object when instruction was not given . Rules App.Proc., Rule 45A.

[45] Criminal Law X1038.2 110k1038.2 Most Cited Cases

Failing to instruct jury in capital murder prosecution that accomplice testimony must be corroborated by other evidence did not constitute plain error, where state presented sufficient evidence to corroborate accomplice testimony. Rules App.Proc., Rule 45A. 1461 Criminal Law X1035(5) 110k1035(5) Most Cited Cases Claim that state improperly used its peremptory challenges to discriminate on basis of gender was subject to plain error review, where capital murder defendant failed to raise claim in trial court. Rules App.Proc., Rule 45A. [47] Criminal Law 1115(2) 110k1115(2) Most Cited Cases Trial court's finding that capital murder defendant failed to establish prima facie case of race and gender discrimination in state 's exercise of peremptory challenges did not constitute reversible error, where record failed to include documents showing race or gender of prospective jurors or copies of questionnaires completed by jurors.

1 1 1

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

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

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836 So.2d 915 (Cite as: 836 So.2d 915) Rule 45A. 1531 Criminal Law &438(1) 110k438(1) Most Cited Cases
Photographic evidence is admissible if it tends to prove or disprove some disputed or material issue, to illustrate some relevant fact or evidence, or to corroborate or dispute other evidence in the case. 1541 Criminal Law X438(1) 110k438(1) Most Cited Cases Photographs that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence. 1551 Criminal Law X438(7) 110k438(7) Most Cited Cases
Photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors.

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expressed objections to imposition of death penalty was subject to plain error review, where capital murder defendant failed to present claim to trial court. Rules App.Proc., Rule 45A.

1601 Criminal Law X1035(5) I10k1035(5) Most Cited Cases

Granting state's challenges for cause as to prospective jurors did not constitute plain error, where prospective jurors indicated either that they could not vote on imposition of punishment or that they would not vote to impose death penalty regardless of evidence produced . Code 1975, 12-16- 152; Rules App.Proc., Rule 45A. [611 Jury 108

230k 108 Most Cited Cases

The proper standard for determining whether a prospective juror may be excluded for cause because of his views on capital punishment is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Code 1975, 12-16- 152. 1621 Jury X132 230k 132 Most Cited Cases A prospective juror's bias against the death penalty, for the purpose of determining whether the prospective juror may be removed for cause, need not be proved with unmistakable clarity, because such bias cannot be reduced to question and answer sessions which obtain results in the manner of a catechism. Code 1975, 12-16-152. 163] Jury 108 230k108 Most Cited Cases A trial judge's finding on whether a particular juror is biased against the death penalty, and, thus, removable for cause is based upon a determination of demeanor and credibility that is peculiarly within the 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 cause based on bias are entitled to great weight and will not be disturbed on appeal unless clearly shown to

[561 Criminal Law X438(5.1) 110k438(5.1) Most Cited Cases 1561 Criminal Law X675 110k675 Most Cited Cases Photographs depicting the character and location of wounds on a deceased's body are admissible even though they are cumulative and are based on undisputed matters. 1571 Criminal Law X438(7) 110k438(7) Most Cited Cases The fact that a photograph is gruesome is not grounds to exclude it as long as the photograph sheds light on issues being tried. 1581 Criminal Law X438(4) 110k438(4) Most Cited Cases Photographs that depict the crime relevant, and, therefore, admissible. scene are

1591 Criminal Law 1035(5) I10k1035(5) Most Cited Cases

Claim that trial court improperly granted state's challenges for cause as to prospective jurors who

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1 1

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

be an abuse of discretion . Code 1975, 12-16-152.

Page 8

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

In order to establish a proper chain of custody, the state must show to a reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain.

[651 Jury X108 230k108 Most Cited Cases

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

1 1 1 1 1
!r^

[661 Criminal Law =1035(5) 110k1035(5) Most Cited Cases

Claim that exclusion of prospective jurors violated capital murder defendant's right to be tried by jury comprised of fair cross-section of community was subject to plain error review, where defendant failed to 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 expressed opposition to death penalty did not violate capital murder defendant's right to be tried by jury comprised of fair cross-section of community; group defined solely in terms of shared attitude that would substantially impair group members from performing juror duties did not constitute distinctive group in community, subject to protection. Rules App.Proc., Rule 45A.

171] Criminal Law X404.20 I I Ok404.20 Most Cited Cases

The purpose for requiring that a chain of custody of evidence be shown is to establish to a reasonable probability that there has been no tampering with the evidence. 1721 Criminal Law X404.30 I I0k404.30 Most Cited Cases While each link in the chain of custody of an item must be identified, it is not necessary that each link testify in order to prove a complete chain of custody.

1731 Criminal Law X404.30 1 l0k404.30 Most Cited Cases

Evidence that an item has been sealed is adequate circumstantial evidence to establish the handling and safeguarding of the item, for the purpose of showing the chain of custody. 1741 Criminal Law X404.65 1 I0k404.65 Most Cited Cases Even if there was break in chain of custody for bullet, bullet was admissible in capital murder prosecution , where physician who performed autopsy identified bullet that was introduced into evidence as the one he removed from victim's body. Code 1975, 12-21-13. 1751 Homicide X1165 203k1165 Most Cited Cases (Formerly 203k 1163, 203k235) Evidence was sufficient to support conviction for capital offense of murder committed during first-degree robbery; defendant and codefendants decided to rob victim while riding around in vehicle, defendant and codefendants caused victim's vehicle to strike their vehicle, victim was shot, and codefendants drove victim's vehicle to farm and

1681 Criminal Law X388.3 I I Ok388.3 Most Cited Cases

At most, absence of forensic investigator's testimony that he took bullet from physician who performed autopsy to state's firearms expert went to weight and credibility of the evidence related to bullet, rather than its admissibility in capital murder prosecution, where state presented sufficient evidence showing that bullet was in same condition when it was delivered to expert as it was when physician removed it from victim 's body. 169] Criminal Law 404.30 I10k404.30 Most Cited Cases Proof of an unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to assure the authenticity of the item.

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'

836 So.2d 915 (Cite as: 836 So.2d 915) took vehicle' s stereo . Code 1975, 13A- 5-40(a)(2) 1801 Homicide x1915 203k915 Most Cited Cases (Formerly 203k152)

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'

(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 beginning with the act of robbing or attempting to rob and culminating in the act of intentionally killing the

The jury may infer from the facts and circumstances that a robbery began when the accused attacked the offense of that the capital victim and murder-robbery was consummated when the defendant took the victim's property and fled. Code 1975, 13A-5-40(a)(2).

victim; the offense consists of two elements,

robbing and intentional killing. Code 1975,

13A-5-40(a)(2). 1771 Homicide X607 203k607 Most Cited Cases

(Formerly 203k18(5)) ' Although an intentional murder must occur during the course of the robbery in question in order to establish the capital offense of murder committed during a first-degree robbery, the taking of the property of the victim need not occur prior to the

(811 Homicide X908 203k908 Most Cited Cases (Formerly 203k145)

Defendant' s intent to rob a victim can be inferred, for the purpose of a prosecution for the capital offense of murder-robbery, when the intervening time, if any, between the killing and robbery was part 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

'

killing. Code 1975, 13A-5-40(a)(2).

(781 Homicide C-607

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 to sustain a conviction, the Court of Criminal Appeals must accept as true the evidence introduced by the state, accord the state all legitimate inferences therefrom, and consider the evidence in the light most 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 the facts are, but to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury. [84] Criminal Law X1159.2(2) 11Ok1159.2(2) Most Cited Cases Evidence. An appellate court may interfere with a jury's verdict only when the court reaches a clear conclusion that the jury's finding and judgment are

203k607 Most Cited Cases (Formerly 203k18(5))

' ' The fact that a victim was dead at the time property was taken would not militate against a finding of robbery, for the purpose of establishing the capital offense of murder committed during a first-degree robbery, if the intervening time between the murder and the taking formed a continuous chain of events.

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

1791 Homicide 607

' '

203k607 Most Cited Cases (Formerly 203k18(5))

1791 Homicide X1325 203k1325 Most Cited Cases (Formerly 203k282) Although a robbery committed as a mere afterthought and unrelated to a murder will not sustain a conviction for the capital offense of murder-robbery, the question of a defendant's intent at the time of the commission of the crime is usually an issue for the jury to resolve. Code 1975,

'

13A-5-40(a)(2).

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836 So.2d 915

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(Cite as: 836 So.2d 915)

wrong. protection in violation of Fifth, Sixth, Eighth, and Fourteenth Amendments, Alabama Constitution, and Alabama law. U.S.C.A. Const.Amends. 5, 6, 8, 14; Code 1972, * 15-12-21(d).

[851 Criminal Law 1159.3(4) 1 lOkI 159.3(4) Most Cited Cases

When there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense. 1861 Criminal Law X552(1) 110k552(1) Most Cited Cases

1891 Sentencing and Punishment X1796 350Hkl796 Most Cited Cases

Electrocution as means of capital punishment does not constitute cruel and unusual punishment. U.S.C.A . Const. Amend. 8. (90] Sentencing and Punishment X1796 350Hk 1796 Most Cited Cases Alabama's method of electrocution as means of capital punishment does not constitute cruel and unusual punislunent; there is no showing that the state 's method of enforcing a death sentence inflicts any 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's unanimous recommendation that capital murder defendant be sentenced to imprisonment for life without possibility of parole for capital conviction, where trial court complied with death penalty statute's sentencing requirements in overriding jury's verdict and specifically explained in sentencing order reasons for overriding jury's verdict. Code 1975, 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 of influence of passion, prejudice, or any other arbitrary factor; trial court carefully considered jury's advisory verdict of life imprisonment and weighed aggravating circumstances, including that defendant committed capital offense while he or accomplice was engaged in commission of robbery and that defendant committed offense while under sentence of imprisorunent, against mitigating

[861 Criminal Law '552(3) I10k552(3) Most Cited Cases

Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty. 1871 Double Jeopardy C=30 135Hk30 Most Cited Cases Using robbery as both element of capital offense of murder committed during first-degree robbery and as aggravating circumstance during sentencing did jeopardy. U.S.C.A. not violate double . 5; Code 1975, 13A-5- 40( a)(2), Const. Amend 13A-5-49, 13A-5-50. 1881 Attorney .and Client X131 45k131 Most Cited Cases 1881 Constitutional Law 52 92k52 Most Cited Cases 1881 Constitutional Law 242 92k242 Most Cited Cases 1881 Criminal Law 641.12(3) 110k641.12(3) 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 of capital trial does not violate separation of powers doctrine, constitute taking without just compensation, deprive indigent capital defendants of effective assistance of counsel, or deny equal

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

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1 1 1 1 1 1 1 1 1 i 1 1 1 1 1 1 1

circumstances , including that defendant was 18 years old at time of offense , that defendant voluntarily surrendered to police , that defendant did not attempt to evade probation officer once he was declared delinquent, that defendant was truthful to his mother, that defendant was not violent toward his girlfriend, that according to aunt defendant was truthful , 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 X1681 350Hkl68l Most Cited Cases

BASCHAB, Judge.
The appellant , Shonelle Andre Jackson, was convicted of capital murder for the killing of Lefrick Moore. The murder was made capital because it occurred during the commission of a robbery in the first degree. See 13A- 5-40(a)(2), Ala.Code 1975. The appellant was also convicted of first-degree theft of property for stealing a vehicle owned by Lottie Flowers. See 13A-8-3, Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 12-0, that the, appellant be sentenced to life imprisonment without the possibility of parole for the murder of Lefrick Moore. The trial court overrode the jury's recommendation and sentenced the appellant to death by electrocution for the capital offense. [FN 1 ] The trial court also sentenced the appellant, as a offender with three prior felony habitual convictions , to life imprisonment for the theft conviction . See 13A-5-9(c)(2), Ala.Code 1975.

1931 Sentencing and Punishment X1704 350Hk1704 Most Cited Cases

1931 Sentencing and Punishment X1714 350Hk1714 Most Cited Cases Death sentence was appropriate for defendant. who committed capital offense of murder committed during first-degree robbery, given aggravating circumstances , including that defendant committed capital offense while he or accomplice was engaged in commission of robbery and that defendant committed offense while under sentence of and mitigating circumstances, imprisonment, including that defendant was 18 years old at time of offense , that defendant voluntarily surrendered to police, that defendant did not attempt to evade probation officer once he was declared delinquent, that defendant was truthful to his mother, that defendant was not violent toward his girlfriend, that according to aunt defendant was truthful, and that defendant exhibited remorse . Code 1975, 13A-5-49(1,4), 13A-5-51(7), 13A-5-53(b)(2). 194] Sentencing and Punishment X1681 350Hk1681 Most Cited Cases Imposing death sentence on defendant, who was convicted of capital offense of murder committed during first-degree robbery, was neither disproportionate nor excessive, given that similar crimes were being punished by death throughout state . Code 1975, 13A-5-53(b)(3). *925 Bryan A. Stevenson and Randall Scott Susskind, Montgomery, for appellant. Bill Pryor, atty. gen., and Kathryn D. Anderson, asst. atty , gen., for appellee.

FN1. The trial court's sentencing order is attached as an Appendix to this opinion.

The evidence showed that, on April 25, 1997, the appellant, Antonio Barnes, Eric Williams, and Christopher Rudolph were riding around the western area of Montgomery in a stolen, gray Buick LeSabre automobile. The appellant had previously asked Barnes to steal a vehicle for him, and Barnes had done so. The appellant was driving, and the men were looking for a person named "Cocomo," who had slapped the appellant the previous night. The appellant, Barnes, and Rudolph were armed with pistols, and Williams was armed with a shotgun. As they were riding around, the young men noticed that Lefrick Moore, who was driving a red Chevrolet Caprice automobile, had a good stereo system in his vehicle, and they decided to rob him. They followed him for some time. While they were following Moore, the appellant purchased a sdft drink from a Dairy Queen restaurant . When they were on the service road leading into the Smiley Court housing area , the appellant pulled the Buick in front of Moore's vehicle, causing Moore's vehicle to hit the Buick. The appellant got out of the Buick and shot at Moore. Williams also fired the shotgun. *926 Moore and his passenger, Gerard Burdette,

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

got out of their vehicle and ran . Burdette ran to the Sylvest Farms plant to get help . Moore, who had been shot, fell facedown in the street and died. The coroner testified that the cause of death was a gunshot wound to his chest . Based on these events, the appellant, Barnes, Williams, and Rudolph were indicted for capital murder in connection with Moore's death. The evidence showed that Lottie Flowers' gray 1991 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 broken window, a broken steering column , and a dent on the passenger side . Officers also recovered a Dairy Queen cup from the vehicle . Testimony indicated that it was the vehicle driven by the appellant and his codefendants in connection with the murder. Victoria Moss testified that , on April 25, 1997, as she was driving near the Smiley Court area, she saw a gray car "cut" in front of a red car. Shortly thereafter, one of the occupants of the red car got out of the vehicle and ran toward a nearby housing area . She also saw someone, who was later identified as the victim , running toward her vehicle, but he fell facedown in the street before he reached her vehicle . She went to check on the man , but the gray car started coming toward her very quickly. She ran out of the road and into the grass until the gray car drove away. She checked on the victim and then went to get help. Leroy Geary, who was employed nearby at the Sylvest Farms plant, also saw the gray car "cut" in front of the red car and run the red car into the curb. He then saw someone fire a weapon at the red car from the driver's side of the gray car. He described the shot as a loud bang , like one from a shotgun, and stated that it was quickly followed by the sound of shattering glass and what sounded like at least two rounds fired from a pistol . He also observed someone, who was later identified as Burdette, running toward the Sylvest Farms facility. Burdette stated that he had been in one of the vehicles involved in the confrontation. A.C. Porterfield owns a farm on Old Hayneville Road. In April 1997, he saw the victim's vehicle parked in the pasture on his farm and saw three young black men walking around the vehicle. He told them to leave , and he telephoned a friend who worked for the Montgomery Police Department.

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During their investigation of the murder, police officers found an empty .380 MagTech brand shell casing at the scene of the murder; amber glass in the road at the crime scene that matched the blinker light on the victim ' s car; a box containing 35 unfired rounds of .380 MagTech brand ammunition from the appellant's residence ; Flowers' vehicle, which had a broken steering column , a broken window , and a dent in the side ; a Dairy Queen cup in Flowers' vehicle ; the front of a stereo on a car parked beside the victim' s car in Porterfield's pasture ; and the victim 's vehicle, from which the stereo was missing . The police also recovered the victim' s stereo from Williams' girlfriend's residence. Joe Saloom , a firearms and toolmarks examiner employed by the Alabama Department of Forensic Sciences , examined the empty shell casing found at the scene of the murder, the bullet recovered from the victim's body, and the box of ammunition found at the appellant's residence . He testified that the empty shell casing was a MagTech shell, like the ones in the box recovered from the appellant's residence . He explained that the bullet recovered from the victim 's body was a tired "jacketed " bullet that was consistent with *927 . 380 caliber. He also testified that it would have been consistent with coming from the empty shell casing the officers recovered from the scene . He further explained that the shell casing would have been ejected when the gun was fired. Antonio Barnes, who is also known as Deon Barnes, testified that the appellant asked him to steal a car for him and that they left Trenholm Court and went to the Brookview Apartments to do so. While there, he broke the back window and the steering column and stole Lottie Flowers' gray 1991 Buick LeSabre . The appellant was with him at the time, but he rode back to Trenholm Court with another person. Barnes drove the car back to Trenholm Court and met the appellant, who then started driving the vehicle. While there, they picked up Christopher Rudolph and Eric Williams. Barnes had a .357 magnum handgun the appellant had given him earlier , the appellant had a .380 pistol, Rudolph had a 9mm pistol , and Williams did not have a weapon . They went by Barnes' sisterin-law's house , where they obtained a shotgun for Williams. The appellant told Barnes that Cocomo had slapped him at a club and that he wanted to "holler

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at" Cocomo, so they drove around the western part of Montgomery looking for Cocomo. Barnes testified that they drove around for about 20 to 30 minutes looking for Cocomo, but that they did not find 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 the car had a good stereo system. At that point, the appellant told the other three that they were about to rob the victim. Barnes and Rudolph asked the appellant to take them back to Trenholm Court, but the appellant refused to do so. The appellant followed the victim for a while and, during that time, bought a soft drink from Dairy Queen. When they were on the service road leading to Smiley Court, the appellant sped around the victim's vehicle and cut in front of it, causing the victim's vehicle to run into the Buick. The appellant and Williams jumped out of the vehicle with their weapons, and Barnes heard two shots. He saw the victim and his passenger running away from the vehicle. Barnes and Williams then got into the victim's vehicle, drove it to a farm off Old Hayneville Road, and parked it in a pasture. Williams pulled the stereo out of the vehicle and went through the trunk of the vehicle. They left the victim's vehicle parked in the pasture. Barnes testified that, when he saw the appellant the next day and told him the victim had died, the appellant did not seem worried about it. Instead, he wanted to know where the victim's vehicle was. The appellant, Barnes, and another person went to the pasture where the vehicle was parked. The appellant stated that he wanted to take the motor out of 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 the murder, the appellant asked him if he knew how to steal a car. He responded that he did not, but told him Antonio Barnes did. Later, the appellant and Barnes approached him driving a gray Buick, and he got into the vehicle with them. Rudolph also got into the vehicle with them. The appellant was driving and had a .380 pistol with him. Barnes and Rudolph also had weapons. Because Williams did not have a weapon when he got into the car, they retrieved a shotgun for him. Williams testified that a person named Cocomo

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had previously slapped the appellant. He, the appellant, Barnes, and Rudolph *928 rode around looking for Cocomo because the appellant wanted to talk to Cocomo about slapping him. They saw Cocomo at one point, but Cocomo did not stop his vehicle. After that, the appellant told the three passengers he wanted to rob someone. Williams asked the appellant to take him back to Trenholm Court, but the appellant refused to do so. As they were driving, they saw the victim, who was driving a red Chevrolet Caprice. At that point, the appellant told them they were going to rob him. They followed the victim for a while, during which time the appellant purchased a soft drink from Dairy Queen. On the service road leading into Smiley Court, the appellant pulled the Buick in front of the victim's vehicle, and the victim's vehicle ran into the Buick. The appellant jumped out, started shooting, and said, "M----- f-----, no need in you running now." (R. 385.) The victim and his passenger got out of the Caprice and ran. Williams heard two shots. When he saw cars approaching the scene, lie shot the shotgun into the air. After the shooting, Williams and Barnes got into the victim's vehicle and left. Williams was driving. They drove to Old Hayneville Road and parked the vehicle in a pasture. He testified that Barnes took the stereo out of the vehicle and that they left the vehicle parked in the pasture and returned to Trenholm Court. When Williams saw the appellant again that night, the appellant was returning from a club. The next day, when he told the appellant that the victim had died, the appellant responded that he "didn't give a f--- because he didn't stay where we stayed at." (R. 392.) Christopher Rudolph also testified about the events surrounding the murder. He got into the gray Buick, which the appellant was driving. At that time, he had a 9mm pistol, the appellant had a .380 pistol, and Barnes had a .357 magnum handgun . Williams did not have a gun . However, the appellant asked Rudolph if lie had another gun because he and Williams had some business to take care of with a person named Cocomo. They picked up a shotgun he owned and gave it to Williams, and then drove around the west side of Montgomery looking for Cocomo. They saw Cocomo at one point, but he drove away. Rudolph remembered a discussion about

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committing a robbery, but he did not remember who initiated the discussion. When they were near the Smiley Court area, they saw the victim. He noticed loud music coming from the victim's car. The appellant said he wanted to rob the victim, so they followed his car for a while. While they were following the victim, the appellant bought a soft drink from a Dairy Queen. When they were on the Smiley Court service road, the appellant pulled the Buick in front of the victim's vehicle, causing the victim's vehicle to hit the Buick. The appellant got out and shot once, breaking the glass in the victim's vehicle. The victim and his passenger ran away from the victim's vehicle. Williams then got out of the car and shot into the air. The appellant got back into the car and drove to where the victim had fallen facedown in the street. The appellant stated that he wanted to go through the victim's pockets, but Rudolph stopped him from doing so. Thereafter, he and the appellant went by a club, but it was closed, so the appellant dropped him off and left. He did not see the appellant again after that. Detective Andrew Signore, who was employed by the Montgomery Police Department, led the investigation in the case. He testified that Barnes, Williams, and Rudolph turned themselves in and made statements to the police about the murder. *929 Barnes made a statement on April 27, 1997, and Williams and Rudolph made statements on April 28, 1997. Signore testified that the appellant voluntarily went to the police station on April 29, 1997, at approximately 2:05 p.m. Signore advised the appellant of his Miranda rights at approximately 2:16 p.m., and the appellant voluntarily waived those rights. Detective C.D. Phillips was present the entire time. Signore testified that neither officer made any threats or promises to the appellant. While there, the appellant gave several different accounts about what happened on the day of the murder. He initially denied any involvement in the murder and denied being with the three codefendants at the time of the murder. However, he admitted that he had been with one of the codefendants earlier in the afternoon or evening looking for Cocomo. Signore then told the appellant that the officers had recovered a Dairy Queen cup from Flowers' vehicle and that his fingerprints were on the cup. At that point, the appellant admitted he had been in

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Flowers' vehicle, but he denied being involved in the murder. Signore testified that the appellant needed a "reality check" because the other codefendants had already all testified that the appellant had been driving the stolen vehicle and had stopped at Dairy Queen to buy a drink. Although he knew that the officers had recovered a Dairy Queen cup from the vehicle, he did not know whether the appellant's fingerprints were on the cup. The appellant then admitted that he had asked Barnes to steal a vehicle, that he went to the Brookview Apartments with Barnes to steal the Buick, and that he had been driving around the west side of Montgomery in the vehicle. However, he stated that he separated from the codefendants before the murder. The officers videotaped and prepared a transcript of this statement. After they videotaped his statement, the appellant asked if he could change his statement and admitted that he had not told the officers the truth. He then admitted that he had been with the three codefendants and that he had had a .380 pistol that evening. However, he said that Barnes was driving. In most other respects, his statement matched those of his three codefendants. When he asked whether the victim was killed with a shotgun, the officers did not respond, and the conversation ended. [l][2] The appellant raises several issues on appeal that he did not present to the trial court. The lack of an objection at trial will not bar our review of an issue in a case involving the death penalty. However, it will weigh against any claim of prejudice. Ea- parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). Thus, we have reviewed the record for any error, whether plain or preserved. See Rule 45A, Ala. R.App. P. Rule 45A provides: "In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review ... whenever such error has or probably has adversely affected the substantial right of the appellant." "[This] plain-error exception to the contemporaneous -objection rule is to be 'used sparingly, solely in those circumstances in which a miscarriage 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 United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 n. 14 (1982)).

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1.
[3] The appellant's first argument is that the trial court improperly granted the State's motion in limine, which prevented *930 the defense from presenting evidence that the victim was a drug dealer. He contends that the motive for the murder was retaliation for a bad drug deal, not robbery. Thus, he argues that the ruling effectively prevented him from presenting a defense, from cross-examining witnesses, from testifying, and from presenting mitigation evidence. He further contends that such evidence would have shown the weakness of the State's contention that the murder occurred during a robbery, which made the murder capital, and that the jury could have determined that he was guilty only of intentional murder, a noncapital offense. The State filed a pretrial motion in limine asking the trial court to prevent the defense from introducing evidence that the victim had been a drug dealer, contending that such evidence would be irrelevant and immaterial. In response, the defense argued that such evidence was relevant to the motive for the confrontation and would be relevant in sentencing. The trial court conducted a hearing on the motion. At that time, defense counsel argued that he wanted to cross-examine witnesses about whether they knew the victim was a drug dealer. He also stated that the defense theory was that a bad drug deal, and not robbery, was the motive for the murder. The trial court granted the State's motion. On the day the trial began, the following occurred: "[Defense counsel] : Judge, we would ask the Court to reconsider the ruling on the motion in limine and at least withhold ruling until maybe the sentencing phase. Our client--we have not made a decision as to whether we are going to allow our client to testify or not. His testimony, if he does testify, will be diametrically opposed to the facts--underlying facts as the district attorney has presented them, which creates a conflict and a jury question. His testimony deals with a drug deal. I don't want to be put in a situation where we can't ask our client questions about what really happened in this case . We would be limited, to have his testimony limited. "The Court: Well, you know, that's the first I have heard of that, for the record. It's not a criticism. It's just for the record. You know, I

will-- you know, if and when you decide whether or not your client is going to testify, I will let you ask me to reconsider it at that point." (R. 37-38.) The defense did not raise the issue again and did not ask the trial court to reconsider its ruling. [4] Where a party seeking . to introduce evidence suffers an adverse ruling on the opposing party's motion in limine , the adverse ruling alone , unless absolute or unconditional, does not preserve the issue for appellate review. Morton v. State, 651 So.2d 42 (Ala.Cr. App.1994 ). In this case , because the trial court indicated its willingness to reconsider its ruling on the motion, that ruling was not absolute. Therefore , the appellant "was required to offer the testimony into evidence and obtain a ruling to which , if adverse, [he] could make an offer of proof and thereby preserve the issue for appeal. [He] did not do so and thus , has not preserved any error for review ." Pero, v. Bralce/iekl, 534 So.2d 602, 607 (Ala.1988 ). Accordingly , we must review the appellant' s claim under the plain error rule. Rule 45A , Ala. R.App. P. [5] We have reviewed the motion in limine, the defense's response, the discussions about the motion, and the remaining evidence in this case. Based on that review, we do not find any plain error in this regard. The allegation that the murder was committed in retaliation for a bad drug deal was not presented until after the State had filed its motion in limine . The *931 appellant did not mention a bad drug deal in his statements to the police and, in fact, he stated that he did not know the victim. Furthermore, Burdette, Barnes, Williams, and Rudolph did not mention anything about a bad drug deal in their statements. Instead, the appellant made this allegation only after the State had filed its motion in limine. Furthermore, the appellant only speculated that some of the witnesses might have known that the victim was a drug dealer and that they might testify that the victim was killed because of a bad drug deal. Likewise, he did not make an offer of proof as to what the appellant's testimony in this regard would be. Finally, the trial court would have reconsidered its ruling before the trial began if the appellant had informed it that he intended to testify. If the court had changed its ruling, the appellant could have cross-examined witnesses and testified about the alleged bad drug deal. However, the appellant did not inform the trial court that he intended to testify and, in fact, did not raise the

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issue concerning the motion in limine again. For these reasons, we reject the appellant 's claims. II. The appellant' s second argument is that the trial court 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 motion to suppress his statement and requested that the trial court conduct a hearing on his motion . The trial court denied the motion without conducting a hearing . At trial, the State introduced a videotape of, and a written copy of, the appellant' s statement into evidence. A. [6] The appellant alleges that he did not voluntarily make the statement . First, he contends that, because of his age and lack of experience with law enforcement officers and because he voluntarily went to the police station , he was "particularly vulnerable to police tactics of deception." (Appellant's brief at p. 14.) In his motion to suppress his statement , the appellant contended that the circumstances surrounding the interrogation were coercive , but he did not allege any specific facts to support his contention . Because he did not present the specific claim he now raises to the trial court, we will review it under the plain error rule. Rule 45A, Ala. R.App. P. [7] Second , the appellant contends, as he did in his motion to suppress his statement , that Detective Signore tricked him into giving the statement by lying to him about having found his fingerprints on a Dairy Queen cup recovered from Flowers ' vehicle. In support of his motion to suppress , the appellant recited a portion of Detective Signore's preliminary hearing testimony . At the preliminary hearing and at trial , Detective Signore admitted that, even though officers had recovered a Dairy Queen cup from Flowers' vehicle, he did not know whether the appellant's fingerprints were on the cup. He testified that he knew from the three codefendants that the appellant had been with them and had purchased a soft drink from Dairy Queen on the night of the murder, However, in his initial statement to Signore , the appellant had denied being with any of the codefendants on the day of the murder and had denied being in Flowers ' vehicle.

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Signore testified that he made the statement about the cup and the fingerprints because of those denials and to encourage the appellant to be truthful with him. After Detective Signore made the representations about the cup, the appellant admitted that he had been in the car and had *932 had the Dairy Queen cup, but he stated that he separated from the codefendants early in the evening and denied being involved in the murder. Even though he made several statements about his conduct on the day of the murder, the appellant never admitted that he killed the victim. [8] [9][10][11] [12] [13][14] [15 ] [161 Confessions and inculpatory statements are presumed to be involuntary 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 a confession to be properly admitted into evidence, the State must prove that " 'the defendant was informed of his Miranda rights and that the confession 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)). 11 'In determining whether a confession is voluntary, the trial court's finding of voluntariness need only be supported by a preponderance of the evidence . Seawright v. State. 479 So.2d 1362 (Ala.Crim.App.1985). The trial court's decision will not be disturbed on appeal unless it is manifestly contrary to the great weight of the evidence.' " 678 So.2d 302, 306 Howard v. State, (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)). 11 1 "In reviewing the correctness of the trial court' s ruling on a motion to suppress , this Court makes all the reasonable inferences and credibility choices supportive of the decision of the 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, 494 So.2d 772 (Ala.1986), cert. denied , 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). A trial court's ruling on a motion to suppress will not be disturbed unless it is 'palpably contrary to the great weight of the evidence .' Parker v. State, 587 So.2d 1072, 1088 (Ala.Cr.App. 199 1)." 680 So.2d 997, 1002 Rutledge v. State, (Ala.Cr.App. 1996). "The Supreme Court has stated that when a court

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is determining whether a confession was given voluntarily 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.2d 433 (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 must consider the totality of the circumstances to determine if the defendant ' s will was overborne by coercion or inducement . See Ea parte Matthews, 601 So.2d 52, 54 (Ala.) ( stating that a court must analyze a confession by looking at the totality of the circumstances ), cert. denied, 505 U.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 a confession , a court must determine that the defendant's will was not overborne by pressures and circumstances swirling around him ); Eakes v. 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 the time he confessed') (emphasis added).... "[T]he test of involuntariness of a confession, or other inculpatory statement , is not whether the defendant bargained with the police, but whether in his discussions with the police , which may have included bargaining, the defendant's will was overborne by 'apprehension of harm *933 or hope 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 at 1380. To determine if a defendant 's will has been overborne, we must assess ' the conduct of the law enforcement officials in creating pressure and the suspect's capacity to resist that pressure '; '[t]he defendant's personal characteristics as well as his prior experience with the criminal justice system are factors to be considered in determining [the defendant's] susceptibility to police pressures.' 1380-81 (citations Jackson, 562 So.2d at omitted)." McLeod v. State, 718 So.2d 727, 729-30 (Ala.), cert. denied, 524 U.S. 929, 118 S.Ct. 2327, 141 L.Ed.2d 701 (1998). Finally, with regard to misrepresentations by police officers during an interrogation , we have held: "Alabama follows the general rule that a confession is not inadmissible merely because it

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was induced by a trick or misrepresentation that was not reasonably calculated to lead the accused to confess falsely. Fincher v, State, 211 Ala. 388, 100 So . 657 (1924); Bates v. State, 549 So.2d 601 (Ala.Cr.App.1989); Barrow v, State, 494 So.2d 834 (Ala.Cr.App.1986); 2 C. Gamble, McElroy's Alabama Evidence 200.07(7) (5th ed.1996)."

718 So.2d 123, 136 Campbell v. State, (Ala,Cr.App,1997), cert. denied, 525 U.S. 1006, 119 S,Ct. 522, 142 L.Ed.2d 433 (1998). See also Gilder v. State, 542 So.2d 1306 (Ala.Cr.App. 1988).
of '[M]ore subtle forms of psychological manipulation , such as trickery or deception by the police, have not been considered sufficiently coercive, standing alone , to render a confession or incriminating statement involuntary . Instead, the trial judge must examine the totality of the circumstances surrounding the statement to determine its voluntariness . Frasier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).' 673 So.2d 461, 467 Barbour v. State, (Ala.Cr.App.1994), at3'd, 673 So.2d 473 (Ala.1995) , cert. denied . 518 U.S. 1020, 116 S.Ct, 2556, 135 L.Ed.2d 1074 (1996) (quoting Ex parte Hill, 557 So.2d 838 , 841 (Ala. 1989)). Detective Signore testified about the circumstances surrounding the appellant 's confession, including the fact that the appellant initiated contact with the police about the murder investigation . He testified that the appellant voluntarily went to the police station at 2 : 05 p.m . on April 29, 1997. At 2:16 p.m., he and Detective C.D. Phillips advised the appellant of his Miranda rights, and the appellant signed a waiver of rights form. Thereafter,. the appellant made several statements about his whereabouts on the day of the murder. His statement that was admitted at trial began at 3:55 p.m. Detective Phillips was present during the entire time Signore spoke with the appellant . Signore testified that neither he nor Phillips threatened the appellant or promised him anything to convince him to give a statement. Based on the totality of the circumstances, we conclude that the appellant' s will was not overborne by the conduct of law enforcement officials. First, the appellant initiated the contact with the police officers about the murder investigation . Second, the officers did not subject him to a lengthy interrogation . Third, Signore 's representations

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about the fingerprints on the cup , standing alone, were not reasonably calculated to lead the appellant to confess falsely. Rather , after the appellant denied being connected to Flowers ' vehicle or to the murder, Signore simply attempted to inform the appellant that he had already been connected to the vehicle *934 used in the commission of the murder. so the appellant would be truthful in making his statement. Fourth, the appellant' s contention that he was especially susceptible to police tactics of deception is belied by the presentence investigation report, which shows that he had previously been arrested on numerous other charges . Fifth, there is no evidence that the officers threatened or coerced the appellant or that they promised him anything in exchange for his statement. And, sixth, we have reviewed the videotape of the statement , and it does not indicate that the appellant was coerced into giving the statement. Barbour-, supra . Thus, we conclude that Signore's misrepresentation was not sufficient to render the appellant 's statement involuntary . Therefore , the trial court properly denied the appellant's motion to suppress his statement.

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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 his statement voluntarily , we find that error, if any, in the trial court's decision to deny the motion to suppress without conducting a hearing did not rise to the level of plain error and, was, at most , harmless error. Rule 45, Ala. R.App. P.; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

III.
[19] The appellant's third argument is that the trial court improperly considered his juvenile record in overriding the jury' s recommendation of a sentence of imprisonment for life without the possibility of parole and in sentencing him to death . Specifically, he contends that, in stating that it was relying on his juvenile record to rebut the statutory mitigating circumstance of his age at the time of the offense, the trial court essentially circumvented the law and used his juvenile record as a nonstatutory aggravating circumstance to override the jury's recommendation . This court addressed an almost identical claim in Burgess v. State, 811 So.2d 557 (Ala.Cr.App. 1998), holding as follows: "Burgess specifically argues that the trial court erred by considering his history of juvenile adjudications to negate the statutory mitigating circumstance of Burgess's lack of a significant criminal history and Burgess's age at the time the offense was committed . In doing so, Burgess says, the trial court 'deploy[ed] *935 the prior delinquencies as if they were nonstatutory aggravation to effectively tip the balance in favor of death.' (Appellant's brief, p. 18.) "Because juvenile adjudications are not convictions under Alabama law, they cannot be considered as prior criminal activity under Alabama' s capital sentencing scheme . Ex parse Davis. 718 So.2d 1166, 1178 (Ala .1998); 555 So.2d 196, 212 Freeman v. State, (Ala.Cr.App.), affd, 555 So.2d 215 (Ala. 1989), cell. denied, 496 U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d 284 (1990). See Baldwin v. State. 456 So 2d 117, 125 (Ala.Cr.App.1983), affd, 456 So.2d 129 (Ala.1984), affd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). Thus, juvenile adjudications cannot negate the statutory mitigating circumstance that the defendant has no significant history of prior criminal activity.

B.
[17] Second, the appellant contends that the trial court erred in admitting his statement without first conducting a suppression hearing outside the presence of the jury. Although he requested a hearing in his written motion, he did not subsequently object when the trial court denied the motion without conducting a hearing . Because the appellant did not present this argument to the trial court, we review it for plain error . Rule 45A, Ala. R.App. P. [18] In his written motion to suppress his statement, the appellant argued only that Detective Signore had made a misrepresentation to him about finding his fingerprints on the Dairy Queen cup recovered from Flowers ' vehicle . He did not allege any other facts in support of his contention that he did not voluntarily make the statement . Thus, the only question before the trial court was the legal question of whether Signore' s misrepresentation rendered the statement involuntary . As set forth above, we have reviewed the evidence presented in the motion to suppress and at trial concerning the circumstances under which the appellant made the statement, and we have concluded that he made it voluntarily. Ex parse Price, 725 So. 2d 1063

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Freeman, 555 So.2d at 212. Only convictions can negate that statutory mitigating circumstance. Id. "We disagree with Burgess' s characterization of the trial court's consideration of his juvenile adjudications. First, the trial court did not find Burgess's juvenile adjudications to be an aggravating circumstance. The record reflects that the trial court found only one aggravating circumstance: that the murder was committed during the course of a robbery in the first degree. Moreover, the trial court did not, as Burgess maintains, use Burgess's juvenile adjudications to negate the statutory mitigating circumstances that Burgess lacked a significant criminal history and that Burgess was only 16 years old at the time of the offense. Instead, it is clear from the trial court's sentencing order that the court considered Burgess's history of juvenile adjudications in assessing the appropriate weight to assign to these statutory mitigating circumstances. "Under Alabama's capital punishment statute, the trial court is required to engage in an individualized assessment of the weight to assign to the aggravating and mitigating circumstances found to exist in a particular case in order to determine 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, 470 U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 391 (1985). It is clear, moreover, that this weighing process must not be 'a mere tallying of aggravating and mitigating circumstances for the purpose of numerical comparison.' 13A-5-48, Ala.Code 1975. See Ex pcrrte Clisbv, 456 So.2d at 108-09 ('The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation.'). Although it is well-settled law in Alabama that juvenile adjudications cannot be used to negate the statutory mitigating circumstance that the defendant has no significant history of prior criminal activity, Freeman, supra, 555 So.2d at 212, the courts of this state have never held that the trial court must entirely ignore a defendant's juvenile adjudications in performing its 'weighing' duties. The trial court's consideration of a defendant's juvenile adjudications when conducting the weighing process offends neither general constitutional principles nor specific provisions of Alabama law. In fact, Alabama's

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capital punishment statute contemplates that the trial court will have any prior juvenile record of the defendant before it when it is deciding upon the proper sentence: pursuant to 13A-5-47, Ala.Code 1975, the trial court is required to consider the presentence report of a defendantconvicted of capital murder, and *936 Rule 26.3(b)(2), Ala.R.Crim.P.,, specifically provides for the inclusion of the defendant's prior juvenile record in the presentence report. "Alabama's capital punishment statute does not specify the matters the trial court may consider when engaging in the process of weighing the aggravating circumstances and the mitigating circumstances in a particular case. Nor does the statute require the trial court to make express findings explaining the process by which it weighed the aggravating circumstances and the mitiggating circumstances. We conclude that a trial court may, consistent with Alabama law, deem a defendant's juvenile adjudications to be a relevant consideration in its assessment of the weight to assign to the statutory mitigating circumstances of a defendant's lack of a significant criminal history and a defendant's age at the time of the offense." Burgess, 811 So.2d at 605-06 (footnotes omitted). In this case, a review of the trial court's sentencing order shows that the court found that only two statutory aggravating circumstances existed: (1) the capital offense was committed by a person under sentence of imprisonment, and (2) the capital offense was committed while the defendant was engaged in a robbery or an attempted robbery. Nothing in the sentencing order indicates that the trial court improperly treated the appellant's juvenile record as a nonstatutory aggravating circumstance . Furthermore, the trial court did not use the appellant's juvenile record to negate the statutory mitigating circumstance of the appellant's age at the time of the offense. [FN2] Instead, the trial court used that record to assess the weight it would assign to that mitigating circumstance. Under the reasoning of Burgess. such an assessment was proper. Therefore, the trial court did not improperly consider the appellant's juvenile record in overriding the jury's sentencing recommendation and in sentencing him to death.

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FN2. In rejecting the mitigating

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circumstance that the appellant did not have a significant history of prior criminal activity , the trial court specifically noted that the appellant ' s juvenile record was not a matter to consider in determining whether the circumstance exists. Instead, it found that the appellant did have a significant history of prior criminal activity because he had three prior felony convictions.

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IV.
The appellant' s fourth argument is that the trial court made several errors in its sentencing order. A. [20][21] First, the appellant argues that the trial court improperly considered his physical characteristics in considering the statutory mitigating circumstance of his age at the time of the offense. He contends that his height and weight are arbitrary variables that are not relevant to his moral or criminal responsibility, and that the trial court's consideration of those attributes deprived him of an individualized and reliable sentencing determination. "[T]he decision as to whether a particular mitigating circumstance is sufficiently proven by the evidence and the weight to be accorded to it rests with the trial court . See Hanev v. State. 603 So.2d 368 (Ala.Cr.App.1991), affirmed, 603 So.2d 412 (Ala.1992). " ' " 'Although consideration of all mitigatingcircumstances is required by the United States Constitution, Lockett v. Ohio, 438 U. S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 ( 1978), the decision of whether a particular mitigating *937 circumstance in sentencing is proven and the weight 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)."

We have carefully reviewed the trial court's sentencing order, and we find the appellant's argument to be without merit . In assessing the weight it would assign to the age mitigating circumstance , the trial court considered the appellant' s height , weight, age, physical maturity, and juvenile record [FN3]; the fact that the appellant was the father of a three-month -old child; the fact that the appellant had used marijuana daily since the age of 14 ; and the fact that the appellant consumed alcohol on a regular basis . The trial court included the appellant's height and weight in the portion of its analysis that concluded that the appellant was a physically mature adult at the time of the offense . However , those physical attributes were only two of several factors the trial court considered in deciding what weight to assign to the appellant'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 this opinion, the trial court properly considered the appellant' s juvenile record in determining what weight it would assign to the age mitigating circumstance.

B. [22] Second, the appellant argues that the trial court improperly plagiarized a sentencing order written by a different judge, in another case, in another state . Specifically , he challenges the trial court's entire analysis of the age mitigating circumstance, and again contends that the trial court deprived him . of an individualized sentencing determination. In its sentencing order , the trial court specifically stated, " When considering the weight to be given to Jackson' s age as a mitigating factor , this case is quite similar to Shellito v. State, 701 So.2d 837 (Fla.1997 )." (C.R.177.) The court then analyzed the mitigating circumstance in a form similar to that used by the court in Shellito. Although it adapted the Florida court's reasoning , the trial court clearly incorporated the facts and evidence presented in this case in performing its analysis . Thus, the trial court made an individualized sentencing determination , and the appellant' s argument is without merit.

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632 So.2d 568, 572 Giles v. State, (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).

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C.
[23] Third , the appellant argues that the trial court improperly negated the role of the jury in sentencing . Specifically, he asserts that the trial court relied too heavily on information the jury did not hear and improperly suggested that the jury's recommended sentence was based on residual doubt. We disagree. [24][25][26] At the outset, we note that, as set forth in Part XVIII of this opinion , in Alabama , the trial court is the sentencing authority. 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); Murrv v. State, 455 So.2d 53 (Ala.Cr.App.1983), rev'd on other grounds, 455 So 2d 72 (Ala.1984). However, before overriding a *938 jury's sentencing recommendation, the trial court must determine that the aggravating circumstances outweigh the mitigating circumstances . The trial court made that determination in this case. Furthermore, in sentencing the appellant to death, the trial court carefully explained why it overrode the jury's recommendation that he be sentenced to imprisonment for life without the possibility of parole. By necessity, a trial court, in sentencing, may rely on information the jury did not hear. As the trial court noted in this case , the court has the benefit of the presentence investigation, any additional evidence presented at the sentencing hearing before the court, and its knowledge of legal precedent, particularly as it applies to the weighing of aggravating and mitigating circumstances. Thus, the appellant's argument that the trial court relied too heavily on information the jury did not hear is without merit. Further, the trial court did not improperly suggest that the jury made its recommendation based on residual doubt. In its order, the trial court attempted to determine what weight to give the jury's sentencing recommendation . In doing so, the court sought to compare this case to similar cases and to test the reliability of the jury 's advisory verdict. When trying to test the reliability of the advisory verdict, the court speculated that the jury may have made its recommendation based on a belief that another of the codefendants fired the fatal shot. However, the trial court ultimately concluded that assigning weight to the advisory, verdict based on testing the reliability of the advisory verdict was not

appropriate. Thus, the trial court did not base its sentencing determination on speculation about jurors' residual doubt. Rather, the trial court carefully considered the jury's recommendation in overriding that recommendation and sentencing the appellant to death . Therefore, this contention is without merit. D. [27] Fourth, the appellant argues that the trial court did not make an adequate determination of his culpability for the offense. However, a review of the sentencing order reveals that this contention is meritless . The trial court clearly states that the evidence showed that the appellant shot the victim. It also states that the appellant was the ringleader in the offense. Therefore, we reject this claim. V. [28][29] The appellant 's fifth argument is that the trial court should have instructed the jury on the lesser included offense of robbery . However, he did not request an instruction on robbery, and he did 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 to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." ( Emphasis added.) In Boyd v. State. 699 So.2d 967 (Ala.Cr.App. 1997), we held: " 'A defendant accused of a greater offense is entitled to have the trial court charge on any lesser included offense if there is any reasonable theory from the evidence to support the lesser charge , regardless of whether the state or the defendant offers the evidence . Ex parse Pruitt, 457 So.2d 456 (Ala.1984); Parker v. State, 581 So.2d 1211 (Ala.Cr.App.1990), cert. denied, 581 So.2d 1216 (Ala.1991). A court may properly refuse to charge on a lesser included offense only when ( 1) it is clear to the judicial mind that there is no evidence tending to bring *939 the offense within 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 jury with respect to an included offense unless there is a rational basis for a verdict convicting the

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836 So 2d 915 (Cite as: 836 So.2d 915) 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 the robbery occurred after the murder. The appellant contends that the trial court should have instructed the jury on the lesser included offense of robbery because the robbery allegedly was a mere afterthought to the murder and it was not committed during the robbery. In fact, he contended at trial that he did not have anything to do with the robbery and that Barnes and Williams stole the car only because he drove away from the crime scene without them. He now contends that, if the jury had believed his theory, it could have found him guilty of the separate offenses of intentional murder and robbery. We disagree. The trial court instructed the jury on the lesser included offense of intentional murder, thus giving the jury the option of finding that the appellant committed the murder but not the robbery. However, under the evidence presented, the appellant did not actually rob the victim, although there was sufficient evidence to show that that was his intent in initiating the confrontation. Under the appellant's theory that the robbery was a mere afterthought and that it did not occur during the murder, the jury could have found the appellant guilty of murder, but he would not have been guilty of the robbery. Thus, if the jury had believed the appellant's theory and determined that the robbery did not occur during the murder, there would not have been a rational basis for it to find that the appellant was guilty of robbery. The appellant also contends that the jury couldhave believed that the robbery did not occur during the murder but still could have found him guilty of being an accomplice to the robbery. This contention is not supported by the record. As stated above, the evidence clearly showed that the appellant's intent when he started following the victim was to rob the victim. If the jury determined that the appellant was guilty of the robbery, even if it determined that he did not kill the victim, then it could only have convicted him of capital murder. Under the evidence presented, he was at least an accomplice to the murder and, more likely, the actual murderer. There was simply no rational basis under the evidence presented on which the jury

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could find the appellant guilty of robbery and not guilty of murder. Therefore, we do not find any plain error in this regard.

VI.
[30][31][32] The appellant's sixth argument is that the trial court improperly denied his request for a continuance to allow him time to secure the attendance of an allegedly critical witness. Before the trial began , the appellant requested a continuance to locate Gerard Burdette, who had been riding in the victim 's vehicle at the time of the murder. Shortly after the murder, Burdette had made a statement about the crime to the police. Based on that statement, the appellant contended that Burdette's testimony could exonerate him. [FN4] *940 The prosecution conceded that Burdette's testimony was material , but it agreed to stipulate that Burdette's written statement could be admitted into evidence . The trial court denied the appellant's request for a continuance , and Burdette's statement was read and admitted into evidence during the appellant's case-in-chief.

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FN4. The appellant also argues that Burdette's statement supported his theory that the motive for the killing was retaliation for a bad drug deal and that the killing did not occur during a robbery. However, we have reviewed Burdette's statement, and it does not refer to a bad drug deal. Therefore, this contention is refuted by the record and is without merit. "A motion for a continuance is addressed to the discretion of the court and the court's ruling on it will not be disturbed unless there is an abuse of discretion.. If the following principles are satisfied, a trial court should grant a motion for continuance on the ground that a witness or evidence is absent: (1) the expected evidence must be material and competent; (2) there must be a probability that the evidence will be forthcoming if the case is continued; and (3) the moving party must have exercised due diligence to secure the evidence." Ex parse Saranthus. 501 So.2d 1256, 1257 (Ala.1986) (citations omitted). At the hearing on the motion, both the prosecutor and defense counsel stated that they had attempted to locate Burdette and that their efforts had not been successful. They

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also noted that both state and federal authorities had outstanding warrants for Burdette's arrest, that Burdette's mother stated that she did not know where he was, and that there had been some indication that Burdette was no longer in the Montgomery area . In its written order denying the appellant's motion, the trial court stated: "In an attempt to accommodate all parties to secure the appearance of Burdette, on February 20, 1998, investigators of the District Attorney's office and a Deputy District Attorney went to the home of Burdette's mother to inquire of his whereabouts. According to the report received from these investigators and the Deputy District Attorney, the mother informed them that she had not seen her son in a year and it was reported that he was not in Montgomery. Because there does not appear to be any reasonable likelihood that Burdette's appearance could be secured in the reasonable foreseeable future, the motion for continuance is denied. "The Court notes that the State stipulates that the statement of Burdette which was taken by Corporal Cunningham can be used as evidence in the Defendant's behalf." (C.R.100.) At the close of the State's case-in-chief, when the appellant moved for a judgment of acquittal on the ground that Burdette was not available as a witness, the trial court reiterated: "As for Mr. Burdette, I have issued an order from competent counsel on why I did not postpone the trial of this case because Mr. Burdette could not be found. But just for the record again, based on everything that has been reported to the Court, Mr. Burdette has charges pending against him, Class A felony charges, I believe, for robbery in the first degree and he has apparently flown the jurisdiction of this Court. And there is no way anybody could tell when Mr. Burdette would ever be [available.] So that is the basis of that. Not anything that counsel did or didn't do. But he is just gone, and nobody knows when he is going to be apprehended and brought back."

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located. In fact, all indications pointed to the contrary. Since even the State's efforts to find Mr. Smith had proved futile, and Reese's three-month attempt to locate Ms. Taylor had been fruitless, the trial court could rightly conclude there was no 'probability' that these witnesses would be forthcoming if the case were continued. 'A motion for a continuance in a criminal case is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed 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.2d 631, 635 (1970), cert. dismissed, 406 U.S. 939, 92 S.Ct. 1807, 32 L.Ed.2d 140 (1972) ('unless a gross abuse of the court's prerogative is shown')." 549 So.2d 148, 151 Reese v. State. (AIa.Cr.App.1989), overruled on other grounds, Huntley v. State. 627 So.2d 1013 (Ala.1992). See 647 So.2d 46 also Banks v. State, (Ala.Cr.App.1994); Miler v. State, 602 So.2d 488 (Ala.Cr.App. 1992). Similarly, the appellant has not satisfied the second prong of the Saranthus test. He did not present any evidence that, even if the trial court granted a continuance, Burdette could be located and would testify. Banks, supra. In fact, both the prosecution and the defense had attempted to secure Burdette's attendance at trial, but neither had been successful. Miller, supra. Moreover, Burdette's statement was admitted into evidence by a stipulation of the prosecution and defense counsel. Therefore, the trial court did not abuse its discretion in denying the appellant's motion for a continuance. VII. [33][34] The appellant's seventh argument is that the trial judge improperly left the courtroom while the jurors viewed his videotaped statement. He also contends that, after the jury viewed the videotape and just before court adjourned for the day, the trial court improperly allowed the court reporter to admonish the jurors to avoid exposure to media coverage of the trial, not to discuss the case, and to be back at 9:30 the next morning. Because the appellant did not present these claims to the trial court. we review them for plain error. Rule 45A, Ala. R.App. P. [35] During the testimony of Officer Signore, after the State had played part of the appellant's

(R. 30-31. )
"While we assume for present purposes that the first and third parts of *941 the Saranthus test were met here, we conclude that the trial court did not abuse its discretion in denying the continuance based upon Reese's failure to satisfy the second Saranthus requirement. There was absolutely no showing that, if a continuance were granted, either Ms. Taylor or Mr. Smith could be

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videotaped statement, the trial judge stated: "Ladies and gentlemen , I want to stop for a second. I have seen that video. I don't need to see it. its important for you to see it . It's not important for my purposes to see it . I do want a copy of the statement, though . I don't have that. I want to read it again . I have got some other things to do. We are going to continue playing this for y'all. I have got some other matters to take care of. It's important for y'all to judge Mr. Jackson's credibility in this video . Y'all make credibility choices. It's important for y'all to observe how this investigation was conducted. Another thing you're going to have to do in judging the credibility of what' s said in it is to judge whether or not it was coerced in any manner . So I have already made an initial ruling about that which allows y'all to see it now. But, for my purposes , it is not for me to sit here any more . The fact that I am going to be *942 doing something else doesn't mean that it is not important to y'all and not very important to this trial." (R. 524.) The appellant did not object when the judge left the courtroom . After the videotape was played, the court reporter stated: "I have been asked by Judge Gordon to advise the jury not to read the newspapers , not to watch television and not to discuss the case among yourselves or with anyone else and be back at 9:30 a.m. Thursday morning." (R. 525.) Again, the appellant did not object when the court reporter admonished the jury. At that point, court was adjourned for the day. "[T]he rule that it is the duty of the presiding judge to be visibly present during every moment in the trial of the case, so that he can always see and hear all that is being said and done , does not mandate a reversal in every instance of his absence . Although in Thomas v. State. 150 Ala. 31, 43 So. 371 ( 1907), the defendant made no objection to the judge' s absence , the following comments are instructive in the present situation: " '(W)e are of the opinion that the mere absence of the judge during the progress of the trial, when no objection or point was made at the trial, the absence being only for a few moments ... does not require or authorize a reversal of the judgment of conviction. Especially so when it does not appear that the clcfendant suffered any harm or detriment on account of the judge's temporary absence,' 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 requires the continued presence of the presiding judge during the entire proceedings of the trial, the text observes further: "Nor, in some jurisdictions, is his absence from the room reversible error, where he remains in a position to observe and hear the proceedings and to pass upon any questions which may arise therein , or where he is at all tunes within immediate call." (Emphasis ours.)' Melvin, 32 Ala.App. at 16, 21 So.2d 277. "Finding that the trial judge had only left the bench and not the courtroom , the appellate court stressed the importance of the trial judge remaining visible in the courtroom at all times during the proceedings : 'Great care and caution should be observed by the trial judge to avoid even 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.2d 862 (1964 ), the court found that an affidavit in support of a motion for new trial which asserted that the trial judge left the bench and the courtroom for a period of 15 or 20 minutes during the course of the trial proceedings did not establish that the trial was 'lacking in fundamental fairness.' " 'From aught that appears in such affidavit, the trial judge did not remove himself to a point where he abandoned supervision of petitioner's Circuit Court trial or any part thereof. Said affidavit failed to state that said trial judge did not remain in proximity sufficiently close to hear, see and supervise the entire proceedings. 'Everything is to be presumed in favor of the regularity 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 duty to make objection to any offensive *943 or objectionable argument of the prosecutor in the absence of the presiding judge from the courtroom and could have presented objection in his motion for new trial , Woods v. State, 19 Ala.App. 299, 301, 97 So. 179 (1923), there has been no contention that there was any prejudicial remark made by the prosecutor during the trial judge' s absence. "In his brief, the defendant argues that 'it is impossible to know what prejudice he suffered in fact.' However, we cannot find that the defendant was harmed in any degree by the absence of the

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trial judge where there was no allegation made during the course of the proceedings below that he was prejudiced . From the record it does not appear that 'the error complained of has probably injuriously affected substantial rights of the parties.' A.R.A.P. Rule 45. Indeed, as in Ex Parte Ellis, there has not even been a showing that the trial judge ' did not remain in proximity sufficiently close to hear, see and supervise the entire proceedings .' Ellis, 42 Ala.App. at 239, 159 So . 2d 862. For these reasons, we conclude that under the facts of this particular case the trial judge's absence does not require a reversal of the defendant'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 during the arguments of counsel , examination of witnesses, or the handing down of the verdict. Rather, he was absent during the playing of a portion of a videotape and when court adjourned for the day. Before he left, the judge stated that be had previously viewed the videotape, and he thoroughly instructed the jurors about the importance of the videotape and their role in reviewing it. Finally, court adjourned for the day immediately after the videotape was played, and the court reporter made the same comments to the jurors that the judge had made when court had previously adjourned for the day. This action certainly did not amount to a "complete abdication of judicial control" over the trial by the judge, as the appellant contends. The appellant has not alleged or shown that he was prejudiced by the judge's absence from the courtroom . In fact, he has not alleged that any error occurred during the judge's absence . Thus, under the facts of this case , we do not find that the judge's actions rose to the level of plain error . At most, his actions may have constituted harmless error. Rule 45, Ala. R.App. P. [FN5]

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The appellant's eighth argument is that the State improperly obtained his conviction by uncorroborated accomplice testimony. Because they had all been indicted for the same capital offense , the appellant argues that Barnes. Rudolph, and Williams were accomplices to the offense and that, therefore, their testimony should have been corroborated.

A.
[36][37][38][39][40][41][42] The appellant first contends that the State did not present sufficient evidence to corroborate the testimony of his accomplices concerning the robbery element of the capital offense. At the close of the State's case-in-chief, the appellant moved for a judgment of acquittal , specifically arguing that the State had not presented sufficient evidence to corroborate the testimony of his accomplices . In denying*944 the appellant's motion , the trial court stated: "The Court finds that there is sufficient evidence of corroboration in this case for the matter to go to the jury on not only the defendant 's statement, but the physical evidence with regard to the weapon and also the bullet itself was recovered in connection with the defendant ' s oral statement to Detective Signore that he did have a .380 caliber weapon in his possession . Although there is testimony in this case of a .380 that was found after the car was driven off by the other two codefendants --or two of the other codefendants." (R. 29-30.) "A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence , if it merely shows the commission of the offense or the circumstances 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 corroborating evidence need not be strong , it '... must be of substantive character, must be inconsistent with the innocence of a defendant and must do more than raise a suspicion of guilt.' McCov v. State, 397 So.2d 577 (Ala.Crim.App.), cert. denied, 397 So.2d 589 (Ala.1981)." Booker v. State, 477 So.2d 1388, 1390 (Ala.Cr.App.1985). "However, the corroboration need not be sufficiently strong by itself to warrant a conviction." Miles v. State.

FN5. In so holding. we do not wish to be construed as condoning the judge's conduct in leaving the courtroom . Rather, we admonish trial judges to remain in the courtroom throughout the entire course of a trial.

VIII.

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476 So.2d 1228, 1234 (Ala.Cr.App.1985). The requisite corroborative evidence is determined by a process of elimination or subtraction . Caldwell v. State, 418 So.2d 168, 170 (Ala.Cr.App.1981). "The means for analyzing the evidence to determine if there is sufficient evidence to corroborate testimony of an accomplice is to set aside the accomplice ' s testimony and determine whether or not the remaining evidence tends to connect the defendant with the commission of the offense." Leonard v. State, 459 So.2d 970, 971 (Ala.Cr.App.1984). "Whether such corroborative evidence exists is a question of law to be resolved by the trial court, its probative force and sufficiency being questions for the jury." Caldwell v. State, supra, at 170. Circumstantial evidence is sufficient to show corroboration. 451 So.2d 435, 437 Jackson v. State, (Ala.Cr.App. 1984). See also McConnell v. State, 429 So.2d 662 (Ala.Cr.App.1983).'

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"Hodges v. State, 500 So.2d at 1275-76."

711 So.2d 1031, 1059 Arthur v. State. (Ala.Cr.App.1996), cert. denied, 711 So.2d 1097 (Ala.1997). "A combination of facts may be sufficient to corroborate the testimony of an accomplice even though each single fact , standing by itself, is insufficient." Wilson v. State, 690 So 2d 449, 456 (Ala.Cr.App.1995), affd in part, 690 So.2d 477 (Ala.1997). " 'Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice .' Andrews v. 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 himself corroborated [the accomplice's] testimony when he testified at trial and admitted that he shot the victim in self-defense.' See also Hood v. State, 598 So.2d 1022, 1024 (Ala.Cr.App.1991) (accused' s own statement to the police corroborated accomplices). *945 "In Hood v. State. supra, this Court observed: " 'The appellant ... insists that because the "for hire " element of the capital offense was not independently corroborated, the State did not establish a prima facie case of capital murder. That is not the law in Alabama. " 'As early as 1867, our Supreme Court held that a charge requiring corroboration of "every material part" of an accomplice's testimony "went beyond the requirements of the statutory rule, or

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, the court held that Ala.Code 1975 , 12-21-222, "does not require corroborative testimony as to material elements of the crime ; it only requires other evidence ' tending to connect the defendant with the commission of the offense.' " See also Andrews v. State. 370 So . 2d 320 (Ala.Cr.App.), cert. denied , 370 So.2d 323 (Ala ,1979), wherein this court observed: " ' "The corroboration of an accomplice must tend to connect the accused with the commission of the crime but need not refer to any statement or fact testified to by the accomplice. 'Corroborate means to strengthen, to make stronger; to strengthen , not the proof of any particular fact to which the witness has testified, but to strengthen the probative, criminating force of his testimony.' ... Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice."

"Hood v. State. 598 So.2d at 1024-25."

State, Gurlev v. (Ala.Cr.App.1993). 639 So .2d 557, 561-62

[43] Thus, even assuming the codefendants were accomplices, the State was not required to present corroborative evidence as to each element of the capital offense or as to each fact about which. the accomplices testified. Rather, it was simply required to present other evidence that tended to connect the appellant to the commission of the offense. We conclude that the State presented sufficient evidence to corroborate the testimony of the appellant's accomplices. In addition to the appellant's conduct and statements to law enforcement officials, the State also introduced the testimony of two eyewitnesses to the offense; the statement of Gerard Burdette; physical evidence recovered from the crime scene and from the vehicles involved in the offense; the spent .380 Maglech shell casing recovered from the crime scene ; the bullet recovered from the victim's heart; expert testimony that the bullet was consistent with having been fired from a .380 pistol; the box of .380 MagTech ammunition recovered from the appellant's bedroom; expert testimony that the bullet was consistent with having been tired from the spent shell casing; testimony that Lottie Flowers' vehicle had been stolen and was later

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recovered with a broken steering column , a dent on the side, and a broken window ; the Dairy Queen cup recovered from Flowers' vehicle ; testimony that the victim' s vehicle was recovered from Porterfield' s farm off of Old Hayneville Road; Porterfield' s testimony that three young black men were walking around the victim 's vehicle the morning after the murder ; and the stereo from the victim's vehicle , which was recovered from Williams' girlfriend's residence . Taken as a whole, this evidence was sufficient to corroborate the testimony of the appellant ' s *946 accomplices. Therefore, the appellant' s claim is without merit. B. [44][45] The appellant further contends that the trial court erred because it did not instruct the jury that accomplice testimony must be corroborated by other evidence . However, he did not request such an instruction , and he did not object when the trial court did not give one . Thus, we review this claim for plain error . Rule 45A, Ala. R.App. P. We have previously applied a harmless error analysis to such a claim . Arthur, supra. " 'The court should have instructed the jury concerning the need for corroborative evidence of McCants's testimony . However, the failure to do so does not mean that this cause must automatically be reversed . Automatic reversal exists only when the error "necessarily renders a trial fundamentally unfair ." Rose v. Clark, 478 U.S. 570, [577], 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). Alabama has applied the harmless error analysis in a case involving the death penalty to the failure of the court to instruct the jury on the principle of accomplice corroboration. Gurley v. State. 639 So.2d 557 (Ala.Cr.App.1993); Frazier v. State. 562 So.2d 543, 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 on the need for corroborative evidence is harmless when the testimony of an accomplice has in fact been corroborated . Frazier v. State, 562 So.2d 543, 558 (Ala.Cr.App.), reversed on other grounds , 562 So.2d 560 (Ala.1989). Accord People 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. 581 A.2d 368, 377-78 United States.

Page 27

(D.C.App. 1990), cert. denied , 502 U.S. 893, 112 S.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 sufficient evidence to corroborate the testimony of the appellant' s accomplices, we conclude that the fact that the trial court did not instruct the jury on the necessity of corroborating accomplice testimony did not 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 State improperly used its peremptory challenges to discriminate on the basis of race and gender. He contends that he showed that there was a prima facie case of discrimination in violation of Batson v. Kentucky. 476 U. S. 79, 106 S .Ct. 1712, 90 L.Ed.2d 69 (1986), and J. E.B. v. Alabama . 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994 ), during his trial, and that the trial court should have required the prosecution to provide race- and gender -neutral reasons for its strikes , For these reasons , he urges this court to remand this 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." (Appellant's brief at p. 47.) *947 After the jury was struck but before it was sworn, the following occurred: "[Defense counsel ]: Judge , at this point we would move under Batson and its progeny for the State to explain race -neutral reasons why it struck Numbers 116 , 94, 96, 11, 26, and 165, which were the last sec of jurors it struck before turning to Your Honor with the random system. Six of those seven are black . Eight of their total strikes were black. "The Court: That's not enough to establish a prima facie case.. .. What's your prima facie case'? "[Defense counsel]: I don't believe they have race -neutral reasons for doing that Judge. I mean, six out of seven in a row.

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(Cite as: 836 So.2d 915) "The Court: That's not enough." (R. 156.) Thus, the appellant preserved for appellate review his claim of discrimination based on race . However, he did not present his claim regarding discrimination on the basis of gender to the trial court. Therefore, we review that claim under the plain error rule . Rule 45A, Ala. R.App. P. At the outset, we note that the record on appeal does not include any documents that show the race or gender of the prospective jurors in this case. Furthermore , it does not include copies of the questionnaires completed by the jurors before voir dire examination. "[T]he record does not contain the clerk's office jury list of any relevant information about the jurors. 'It is the appellant 's duty to provide this court with a complete record on appeal .' Knight v. State, 621 So.2d 394 (Ala.Cr.App. 1993). See 584 So.2d 872 Holder v. State, also (Ala.Cr.App.1991). We cannot predicate error on a silent record. Hutchins v. State. 568 So.2d 395 (Ala.Cr.App. 1990)." 627 So.2d 1114, 1116 Roberts v. State, (Ala.Cr.App.1993). See also Baker v. State. 683 So.2d 1 (Ala.Cr.App.1995). Thus, "[t]here is no evidence in the record that the prosecutor used his strikes in a racially discriminatory manner . There is no indication of the racial composition of the jury, though a jury strike list is contained in the record. Neither do we know whether any minorities in fact served on the jury. The record simply does not support an inference of plain error on the alleged Batson violation . Our Supreme Court in Ev parte Watkins. 509 So.2d 1074 (AIa.1987), cert. denied , 484 U. S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), refused to find plain error in a similar situation. It stated: " 'The record as a whole simply does. not raise an inference that the state engaged in the practice of purposeful discrimination . Under the plain error rule this Court will " notice any plain error or deject in the proceeding under review, whether or not brought to the attention of the trial court. . and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." ... The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred ( i.e., the state's use of its peremptory challenges to exclude

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blacks).' "509 So.2d at 1076-77. See Kuenzel v. State, 577 So.2d 474 (AIa.Cr.App.1990), affd, 577 So.2d 531 (Ala.1991), cert. denied, [502] U.S. [886], 112 S.Ct. 242, 116 L.Ed.2d 197 ( 1991) (stating that there was no evidence in the record to support the contention that the State of Alabama used its peremptory strikes to exclude blacks from the jury). 'Under the circumstances of this case, we cannot conclude *948 that a prima facie case of purposeful discrimination has been established.' Pierce, 576 So.2d at 242." 627 So.2d 1034, 1042 Jenkins v. State. (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, 555 So.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 an inference of discrimination based on either race or gender. Nevertheless , the appellant urges us to remand this case so the prosecution can provide reasons for its use of its peremptory challenges. "As this Court stated in Ex parse Watkins, 509 So.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 defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred.' In effect, McNair is requesting that we remand this case for a hearing on this issue, on the strength of the circuit clerk's affidavit, so that a record can be created for appellate review. We specifically decline this request , for to do otherwise would unduly enlarge the scope of the plain error review as authorized by our appellate rules . See Watkins, supra, in which we had the opportunity in a death penalty case to remand for an evidentiary hearing on a Batson issue, but refused to do so." Ex parte McNair, 653 So.2d 353, 360 -(Ala. 1994), cert. denied, 513 U.S. 1159, 115 S.Ct. 1121, 130 L.Ed.2d 1084 (1995). We, too, decline the appellant' s request. Because the record before this court 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

1 1 I

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trial court' s instruction on reasonable doubt violated

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'

cert. denied, 520 U . S. 1199, 117 S.Ct. 1559, 137

the principles of Cage v. Louisiana, 498 U.S. 39,

I I I S.Ct. 328, 112 L.Ed.2d 339 (1990). The trial court instructed the jury on reasonable doubt as follows : "I have told you that the State has to prove this case beyond a reasonable doubt from the

L.Ed.2d 706 (1997), we held:

"The Due Process Clause of the Fourteenth 'protects the accused against Amendment conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In

'

evidence. So let's talk for a moment about what a reasonable doubt is. Simply put, ladies and
gentlemen , a reasonable doubt is a doubt for which you can give a reason . It may arise from all the evidence . It may arise from any part of the evidence . It may arise from lack of evidence in any case after a careful and impartial consideration of all of the case . That is what you have got to look at is look at the evidence --all the evidence that is presented to you in this case to determine whether or not the State has proven the defendant guilty beyond a reasonable doubt. You don't find a person guilty of a criminal charge based on conjecture or suspicion or sunrise . On the other hand though, you don't find a person not guilty because of some vague or conjectural or fanciful doubt. Now the State ' s burden is to

re Winship. 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). In Cage v.
Louisiana , the United States Supreme Court found that a jury charge that defined 'reasonable doubt' by using the phrases 'grave uncertainty,' 'actual substantial doubt ,' and 'moral certainty' could have led a reasonable juror to interpret the instructions to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause. Subsequently , the Court 'made it clear that the proper inquiry is not whether the instruction "could have " been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury aid so apply it.' Victor v. Nebraska, 511 U.S. 1, 6, 1 14 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994) (quoting Este lle v. Mc G u i re, 502 U . S . 62 , 72 - 73 , an d n. 4 ,

'

'

prove the defendant guilty beyond a reasonable

' doubt. But the State does not have to prove him guilty beyond all doubt or beyond a shadow of a doubt or to a mathematical certainty . But the State has to satisfy its burden by proving his guilt beyond a reasonable doubt from the evidence in this case. "I would simply say to you 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 *949 own affairs . So if you are convinced by the evidence that the defendant has been - proven guilty of an offense beyond a

112 S.Ct. 475, 482 and n. 4, 116 L.Ed.2d 385

( 1991), emphasis in original ). Thus, the constitutional question presented here is whether there is a reasonable likelihood that the jury understood the instructions to allow the conviction based on proof insufficient to meet the Winship reasonable doubt standard. Victor v. Nebraska; Ex pcute Kirbv, 643 So.2d 587 (Ala.), cert. denied, [513] U.S . [ 1023], 115 S.Ct. 591, 130 L.Ed.2d 504 (1994); Cox v. State, 660 So.2d 233 (Ala.Cr.App. 1994). " In reviewing the reasonable doubt instruction, we do so in the context of the charge as a whole. Victor v. Nebraska: Baker- v. United States, 412

'

reasonable doubt, then you must find him guilty . On the other hand, if you are not convinced by
' the evidence that he has been proven guilty beyond a reasonable doubt , then you must find him not guilty as you look at the charges in this case ." (R. 83-85 ). The appellant specifically contends that the instruction improperly lowered the State's burden of proof. He did not present this issue to the trial court. Therefore , we review it for plain error .

F.2d 1069 (5th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L. Ed.2d 509 (1970);
538 So.2d 1250 Williams V. State, (Ala.Cr.App. 1988). So long as the definition of 'reasonable doubt' in the charge correctly conveys the concept of reasonable doubt , the charge will not be considered so prejudicial as to mandate reversal . Victor v. Nebraska ; Holland v. United States, 348 U . S. 121, 75 S . Ct. 127, 99 L . Ed. 150 ( 1954)."

Rule 45A, Ala. R.App. P.

In Knotts v. State, 686 So.2d 431 (Ala.Cr.App.),

686 So.2d at 459. " 'Use of some but not all of the
terminology found offensive in Cage does not automatically constitute reversible error.' " Taylor- v,

'

opinion after remand, 686 So.2d 484 (Ala.Cr.App.1995), atfd, 686 So.2d 48 6 (A l a. 1996 )

State, 666 So.2d 36, 56 (Ala.Cr.App.1994), affd, 666 S o. 2d 73 ( Al a. 1995) , ce rt . denied , 516 U . S .

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1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996) (citations omitted). Finally, we have previously held that the statement that a reasonable doubt is a doubt for which a reason can be given does not violate Cage and does not improperly lessen the State's burden of proof. Burgess V. State. 827 So.2d 134 (Ala.Cr.App.1998); Ex parte McWilliams, 640 So.2d 1015 (Ala.1993), affd, 666 So.2d 90 (Ala.1995), cert. denied , *950516 U.S. 1053, 116 S.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 this case properly conveyed the concept of reasonable doubt to the jury , and it did not lessen the State's burden of proof. There is no reasonable likelihood that the jury applied the instruction in a manner that would violate the. appellant' s constitutional rights. Therefore, we do not find any plain error in this regard.

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(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) (quoting Ex parte Siebert, 555 So.2d 780, 783-84 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990) '[P]hotographs depicting the character and location of wounds on a deceased's body are admissible even though they are cumulative and are based on undisputed matters. Magwood [v. State], 494 So.2d [124, 141 (Ala.Cr.App.1985), affirmed, 494 So.2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986) ]. The fact that a photograph is gruesome is not grounds to exclude it as long as the photograph sheds light on issues being tried . Id. Also, a photograph may be gruesome and ghastly, but this is not a reason to exclude it as long as the photograph is relevant to the proceedings , even if it 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], 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990); McElrov's at 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.2d 1181 (Ala.1992), cert. denied. 509 U.S. 929, 113 S.Ct. 3053, 125 L.Ed.2d 737 (1993). Photographs that depict the crime scene are relevant and therefore admissible . Aultnuut v. State. 621 So.2d 353 (Ala.Cr.App .1992), cert . denied, 510 U.S. 954, 114 S.Ct. 407, 126 L.Ed.2d 354 (1993); Ex purse Siebert, 555 So.2d 780, 783-84 (Ala.1989), cert. denied , 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990); Hill v. State. 516 So.2d 876 (Ala.Cr.App. 1987). Finally, *951 " ' "photographic evidence , if relevant, is admissible even if it has a tendency to inflame the minds of the jurors." Ei parte Siebert, 555 So.2d 780, 784 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 ( 1990). See generally C . Gamble , McElroy's Alabama Evidence, 207.01(2) (4th ed.1991). "The photographs of the victim were properly admitted into evidence . Photographic exhibits are admissible even though they may be cumulative, ... demonstrative of undisputed facts, ... or gruesome ...." Williams v. State, 506 So.2d 368, 371 (Ala.Cr.App. 1986), cert. denied , 506 So.2d 372 (Ala.1987).'

1 1

X1.
[50][51][52] The appellant' s eleventh argument is that the trial court improperly admitted photographs and videotapes that allegedly served only to inflame and prejudice the jury. Specifically , he contends that the introduction of one picture of the victim after he was killed seriously prejudiced him. With regard to the remaining photographs and videotapes , he makes only generalizations without specifying which ones he finds objectionable. Because the appellant did not object to the admission of the photographs and the videotapes at trial, we must determine whether the admission of these items constituted plain error . Rule 45A, Ala. R.App. P. [53][54][55][56][57][58] When reviewing these photographs and videotapes, we are guided by the following principles: " 'Photographic evidence is admissible in a criminal prosecution if it tends to prove or disprove some disputed or material issue, to illustrate some relevant fact or evidence, or to corroborate or dispute other evidence in the case. Photographs that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence.... Finally photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors.' "

1 II

I rl

Gaddy v. State,

698 So.2d 1100, 1148

"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 err in allowing photographs of the victim's body to be received into evidence." Hutcherson v. State. 677 So.2d 1174, 1200 (Ala.Cr.App.1994), rev'd on other grounds, 677 So.2d 1205 (Ala,1996). See also Giles v. State, 632 So.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, 603 So.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 depict the character and location of his wounds. Nevertheless , these photographs are neither unnecessarily gruesome nor gory. We have also reviewed the remaining photographs and videotapes , and we do not find that they were unduly prejudicial to the appellant. Those photographs and videotapes were relevant and admissible because they depict the crime scene, the vehicles driven by the victim and the appellant, and the evidence recovered during the investigation of the crime. The appellant has not shown that tie admission of any of the photographs or videotapes affected or probably affected his substantial rights. Accordingly, the trial court' s admission of the photographs and videotapes did not constitute plain error.

Page 31

"[Prosecutor]: That's why I challenged her. "The Court: I confused [A.A.] for [B.B.] I think their challenges are due to be granted. That's my initial reaction. If y'all have anything you would like to say about it, I will hear you . Anything y'all have in opposition to any of those'? "[Defense counsel] : We don' t have any." (R. 126-27.) Because the appellant did not present his claim about the challenges for *952 cause to the trial court, we review it for plain error . Rule 45A, Ala. R.App. P. During general voir dire examination , prospective jurors L.A., A.A., V.C., M.E., and V. G. indicated that they had reservations about imposing the death penalty. Further individual examination by the trial court revealed that the prospective jurors either could not vote on the imposition of punishment or would not vote to impose the death penalty under any circumstances. Prospective juror L.A. indicated that he did not personally condone the death penalty and that he could not impose the death penalty under any circumstances. (R. 82.) Prospective juror A.A. expressed ambivalent feelings about the death penalty . (R. 83.) Upon further questioning by the trial court, she indicated that she did not know whether she could follow the law in recommending a sentence of death or even vote in such a case . (R. 84, 86, 89- 90.) Prospective juror V.C. indicated that she could not impose the death penalty under any circumstances . (R. 105, 107.) Prospective jurors M.E. and V.G. indicated that, based on their religious beliefs, they could not vote to impose the death penalty under any set of facts or circumstances . (R. 119- 22.) Contrary to the appellant's contention in his brief to this court, not one of these prospective jurors indicated that he or she could follow the law despite his or her opinions about the death penalty. [61](62)[63][64][ 65] Initially, we note that the State may successfully challenge for cause any prospective juror who would refuse to impose the death penalty under any circumstances. "On the trial for any offense which may be punished capitally ..., it is a good cause of challenge by the state that the person would refuse to impose the death penalty regardless of the evidence produced...." 12-16-152, Ala.Code 1975. "In Taylor v. State, 666 So.2d 36, 47 (Ala.Cr.App.1994), this Court outlined the guidelines for determining whether a potential

r
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XII.
[59](60] The appellant's twelfth argument is that the trial court improperly granted the State's challenges for cause as to prospective jurors who expressed objections to the imposition of the death penalty. After the voir dire examination, the following occurred: "The Court: Exceptions for cause? "[Prosecutor]: Yes, sir. State would challenge juror [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 my inclination is . My inclination is to grant those challenges except for [A.A.] Each of those jurors in my judgment said on the record that there are no circumstances under which they could vote to impose the death penalty , except for [A.A.] Well, I take it back. I'm sorry. [A.A.] said she didn't know if she could vote or not.

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juror should be excluded for cause based on his or her feelings concerning capital punishment: ' "The proper 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 duties as a juror in accordance with his instructions and his 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 venireman could follow the court' s instructions and obey his oath, notwithstanding his views on capital punishment .' 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 cannot be reduced to question and answer sessions which obtain results in the manner of a catechism.' Id. " ' "A trial judge 's finding on whether or not a particular juror is biased ' is based upon determination of demeanor and credibility that are peculiarly within a trial judge's province.' Witt. 469 U.S. at 428, 105 S.Ct. at 854 [, 83 L.Ed.2d 841]. That finding must be accorded proper deference on appeal. Id. 'A trial court's rulings on challenges for cause based on bias *953 [are] entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion.' Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, Ex parse Nobis, 401 So.2d 204 (Ala.1981)." " 'Martin v. State, 548 So.2d 488, 490-91 (Ala.Cr.App.1988), affirmed, 548 So.2d 496 (Ala.1989), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989). "[A] blanket declaration of support of or opposition to the death penalty is not necessary for a trial judge to disqualify a juror." Ex parte Yihiisenhant, 555 So.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 the juror's unequivocal response that she would not be able to impose the death penalty in any case, we conclude that the trial court did not err in granting the State's challenge for cause." 711 So.2d 1101, 1107 Dallas v. State, (Ala.Cr.App.1997), affd, 711 So.2d 1114 (Ala.), cert. denied, 525 U.S. 860. 119 S.Ct. 145, 142 L.Ed.2d 1 18 (1998).

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In this case, the prospective jurors indicated either that they could not vote on the imposition of punishment or that they would not vote to impose the death penalty regardless of the evidence produced. Therefore, the trial court's granting of the State's challenges for cause did not constitute an abuse of the court's discretion and did not rise to the level of plain error. [66][67] The appellant also contends that the exclusion of these prospective jurors violated his right to be tried by a jury comprised of a fair cross-section of the community. Again, he did not present this claim to the trial court. Therefore, we review it under the plain error rule. Rule 45A, Ala. R.App. P. 502 So.2d 877 "In Johnson V. State, (Ala.Cr.App.1987), this court faced a similar fact situation. The appellant in Johnson argued that excluding veniremembers who expressed opposition to the death penalty denied him the right to a jury comprised of a fair cross-section of the community. The Johnson court relied on Lockhart v. McGee. 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), in which the United States Supreme Court stated: " ' "The essence of a 'fair cross-section' claim is the systematic exclusion of 'a "distinctive" group in 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 in terns of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as the 'With erspoon-excludables at issue here, are not 'distinctive groups' for fair cross-section purposes." " '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, 142 L.Ed.2d 906 (1999). Thus, the appellant's fair cross-section argument is without merit. XIII. [68][69][70][71][72][73] The appellant' s thirteenth argument is that the trial court improperly admitted into evidence a bullet for which the State had allegedly 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 wound caused the victim 's death. He testified that he placed the bullet in a manila envelope , sealed and initialed the envelope, and gave the envelope to Joe Saloom. Joe Saloom, the State' s firearms and toolmarks expert, testified that James Sparrow, a forensic investigator who works for Dr. Lauridson, delivered the bullet to him in a sealed manila envelope . James Sparrow did not testify at trial, and the appellant objected to the admission of the bullet, arguing that the State had not established a chain of custody for it. The trial court overruled the appellant'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 a chain of custody without breaks in order to lay a sufficient predicate for admission of evidence. Ex parte Williams, 548 So.2d 518, 520 (Ala.1989) . Proof of this unbroken chain of custody is establish sufficient required in order to identification of the item and continuity of possession, so as to assure the authenticity of the item. Id. In order to establish a proper chain, the State must show to a 'reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain. MccCrav v. State, 548 So.2d 573, 576 (Ala.Crim.App. 1988)."

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1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997)). "While each link in the chain of custody must be identified, it is not necessary that each link testify in order to prove a complete chain of custody. 650 So.2d 603 Harrison V. State, (Ala.Crim.App.1994)." E.r parte v. Slaton, 680 So.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 is adequate circumstantial evidence to establish the handling and safeguarding of the item ." Lane v. State, 644 So.2d 1318 , 1321 (Ala.Cr.App.1994). Although James Sparrow did not testify, the State presented sufficient evidence to show that the bullet was in the same condition when it was delivered to Saloom as it was when Dr. Lauridson removed it from the victim's body. The absence of Sparrow's testimony constitutes , at most, a weak link in the chain of custody, which would go to the weight and credibility of the evidence rather than its admissibility. 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 in the chain of custody for the bullet, Dr. Lauridson identified the bullet *955 that was introduced into evidence as the one he removed from the victim's body during the autopsy. "Physical evidence connected with or collected in the investigation of a crime shall not be excluded from consideration by a jury or court due to a failure to prove the chain of custody of the evidence. Whenever a,witness in a criminal trial identifies a physical piece of evidence connected with or collected in the investigation of a crime, the evidence shall be submitted to the jury or court for whatever weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break in the chain of custody concerning the physical evidence." 12-21-13, Ala.Code 1975. Therefore, the trial court properly admitted the bullet into evidence. XIV. [75] The appellant's fourteenth argument is that there was not sufficient evidence to support his conviction. Specifically, he contends that the evidence does not establish that the murder occurred during a robbery or that he was involved in a robbery.

Ev parte Holton, (Ala.1991).

590 So.2d 918, 919-20

" ' "The put-pose for requiring that the chain of custody be shown is to establish to a reasonable probability that there has been no tampering with the 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, 583 So.2d 990 (Ala.Crim.App.1991 ), cert. denied, 583 So.2d 993 (Ala.1991).... Evidence has been held correctly admitted even when the chain of custody 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.2d 435 (Ala.Crim.App.), appeal after remand, 591 So.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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81 ][82][83][84][85][86] . [76][77][78][79][80][ 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 thereof committed by the defendant " constitutes capital murder. "(a) A person commits the crime of robbery in the first degree if he violates Section 13A -8-43 and he: "(1) Is armed with a deadly weapon or dangerous instrument; or "( 2) Causes serious physical injury to another. "(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument , or any verbal or other representation by the defendant that he is then and there so armed , is prima facie evidence under subsection ( a) of this section that he was so armed." 13A-8-41, Ala.Code 1975. Section 13A-8-43, Ala.Code 1975 , provides: "(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he: "(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or "(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property." Alabama' s accomplice liability statute provides: "A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense: "(1) He procures , induces or causes such other person to commit the offense; or "(2) He aids or abets such other person in committing the offense; or "(3) Having a legal duty to prevent the commission of the offense , he fails to make an effort he is legally required to make."

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"To sustain a conviction under 13A-5-40(a)(2) for capital robbery - murder, the state must prove beyond a reasonable doubt : ( 1) a 'robbery in the first degree or an attempt thereof,' as defined by 13A-8-41; (2) a 'murder,' as defined *956 by 13A-6-2( a)(1); and ( 3) that the murder was committed 'during ' the robbery or attempted

robbery, i.e., that the murder was committed 'in the course of or in connection with the commission of, or in immediate flight from the commission of the robbery or attempted robbery in the first degree, 13A-5-39(2). Connally v. State, 500 So.2d 57 (Ala.Cr.App.1985), affd, 500 So.2d 68 (Ala.1986). The capital crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating in the act of intentionally killing the victim; the offense consists of two elements, robbing and intentional 536 So.2d 110 killing. Davis v. State. (Ala.Cr.App.1987); Ma,,wvood v. State, 494 So.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 occur during the course of the robbery in question; however, the taking of the property of the victim need not occur prior to the killing. Clark v. State, 451 So.2d 368 (Ala.Cr.App.), cert. denied, 451 So.2d 368 (Ala.1984). While the violence or intimidation must precede or be concomitant with the taking, it is immaterial that the victim is dead when the theft occurs. Thornas v. State, 460 So.2d 207 (Ala.Cr.App.1983), affd, 460 So.2d 216 (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 the property was taken would not militate [against a finding] of robbery if the intervening time between the murder and the taking formed a continuous chain of events ." Clements v. State, 370 So.2d 708, 713 (Ala.Cr.App.1978), affirmed in pertinent part, 370 So.2d 723 (Ala.1979); 451 So.2d 368, 372 Clark v. State, (Ala.Cr.App. 1984). To sustain any other position "would be tantamount to granting to would-be robbers a license to kill their victims prior to robbing them in the hope of avoiding prosecution under 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 "mere afterthought " and unrelated to the murder will not sustain a conviction under 13A-5-40 (a)(2) for the capital offense of murder-robbery, see Bufford v. State, supra, O'Frv v. State, supra [642 S.W.2d 748 (Tex.Cr.App.1981) ], the question of a defendant ' s intent at the time of the commission of 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 the facts and circumstances that the robbery began when the accused attacked the victim and the capital offense was consummated when the defendant took the victim ' s property and fled. Cobern v. State, 273 Ala. 547, 550, 142 So.2d 869, 871 ( 1962). The defendant's intent to- rob the victim can be inferred where "[t]he intervening time, if any, between the killing and robbery was part of a continuous chain of events ." 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, 435 So.2d 1371 (Ala.Cr.App.1983); Bufford v. State, 382 So .2d 1162 (Ala.Cr.App.), cert. denied, 382 So.2d 1175 (Ala.1980 ); Clements v. State, 370 (Ala.Cr.App. 1978), affirmed in So.2d 708 pertinent part, 370 So .2d 723 (Ala. 1979).'

Pace 35

"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, 107 L.Ed.2d 342 ( 1989).
"It is sometimes said that a robbery committed as a 'mere afterthought' and unrelated to the murder will not sustain a conviction for the capital offense of murder-robbery. Connolly v. State, 500 So .2d 57 (Ala.Cr.App.1985), affd, 500 So.2d 68 (AIa.1986). However, the appellant's intent to rob the victim may lawfully and correctly be inferred where the killing and the robbery were part of a continuous chain of events.

548 So.2d 526 Hallforcl v. State, (Ala.Cr.App.1988 ), affd, 548 So.2d 547 (Ala.), cert. denied, 493 U. S. 945 , 110 S.Ct. 354, 107 L.Ed.2d 342 ( 1989)."
671 So .2d 125, 126 Harris v. State, (Ala.Cr. App. 1995 ). Finally, " '[i]n determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom , and consider the evidence in the light most 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 what the facts are. Our role , ... is to judge whether the evidence is legally sufficient to allow submission

of an issue for decision to the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury's verdict only where it reaches "a clear conclusion that 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 that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust ." Bridges v. State, 284 Ala. 412, 420, 225 So.2d 821 (1969).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909) . "[W]here there is ample evidence offered by the state to support a verdict , it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense." Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied , Fuller v. Alabama, 361 U.S. 936, .80 S.Ct. 380, 4 L.Ed.2d 358 (1960).' Granger, 473 So.2d at 1139." " '... Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime , provided the jury believes beyond a reasonable 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, 46 L.Ed.2d 288 (1975). 'Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided 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 parte Cochran, 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 of robbery-murder, the trial court defined the word "during" as follows: "The phrase 'during,' ladies and gentlemen, means in the course of, the commission *958 of, or in connection with or in immediate flight from the commission of a robbery." (R. 92.) Thereafter, the trial court also instructed the jury on the principles of accomplice liability, or complicity, stating as follows:

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"I want to talk to you about what we call complicity. And the law is this. A person is legally accountable for the behavior of another person which constitutes a criminal offense if, with the intent to 'promote or assist in the commission of that offense, he aids or abets that other person in committing the offense. The words 'aid or abet' ... comprehend all assistance rendered by acts, words, encouragement, support, or presence, actual or constructive, to render assistance should it become necessary. "The State has the burden of proving beyond a reasonable doubt from the evidence that there was, by pre-arrangement or on the spur of the moment, a common enterprise or adventure and that a criminal offense was contemplated before you would be justified in finding that the defendant, Mr. Jackson, aided or abetted. "A person cannot be an aider or abettor unless his purpose is to aid the commission of the offense charged in the indictment. Mere presence alone is not sufficient in order to make one an aider or abettor. "When two or more persons enter upon an unlawful purpose with a common intent to aid and encourage each other with anything within their common design, they are each criminally responsible for everything which may consequently and subsequently result from that unlawful purpose, whether specifically contemplated or not." (R. 97-99.) Applying those instructions to the evidence presented at trial, as set forth in this opinion and in the trial court's sentencing order, there was sufficient evidence to show that the murder occurred during a robbery. Therefore, the evidence was sufficient to support the appellant's capital murder conviction. Xv. [87] The appellant's fifteenth argument is that the trial court improperly treated robbery as both an element of the capital offense and as an aggravating circumstance. This practice is commonly referred to as "double counting " or "overlapping." The appellant specifically contends that "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." (Appellant's brief at p. 58.) He also contends that this "double counting" punished him

twice for the same act, thus violating the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama law. The appellant makes only bare allegations that his Fourth, Sixth. Eighth, and Fourteenth Amendment rights were violated. Therefore, we will address only his Fifth Amendment argument. Section 13A-5-50, Ala.Code 1975, provides, in pertinent part: "The fact that a particular capital offense as defined in Section 13A-5- 40(a) necessarily includes one or more aggravating circumstances as specified in Section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence." *959 Accordingly, under 13A-5-50, Ala.Code 1975, a jury may consider an element of capital murder as an aggravating circumstance if that element is listed in 13A-5-49, Ala.Code 1975, as an aggravating circumstance. Further, this court has held that the use of an element of capital murder as an aggravating circumstance does not punish a defendant twice for the same offense. Burton v. State, 651 So.2d 641 (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). " 'This practice, known as "double counting" or "overlapping," has been upheld. Haney v. State,. 603 So.2d 368 (Ala.Cr.App.1991), affd, 603 So.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 as defined in section 13A- 5-40(a) necessarily includes one or more aggravating circumstances as specified in section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence." " 'Clearly, 13A-5-50 provides that a jury may consider an element of capital murder as an aggravating circumstance if that element is listed in 13A-5-49. Further, this court has repeatedly held that the use of an element of capital murder in 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, 472 So-2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 ( 1985). " ' "A capital punishment scheme , under which the same felony may form the basis of an essential element of the crime and an aggravating circumstance for consideration by the jury in recommending a sentence , does not constitute a denial of the guarantee against double jeopardy." quoting 577 So.2d at 488, 'Kuenael, Fortenberry 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, the appellant' s argument is without merit. XVI. [88] The appellant's sixteenth argument is that "the Alabama statute limiting court-appointed attorneys' fees to one thousand dollars for out-of- court work for each phase of trial is deplorable and unconstitutional." (Appellant's brief at p. 59.) Section 15-12-21(d), Ala.Code 1975, limits fees for court-appointed attorneys to $1,000 for out-of-court work in a capital trial, based on a $20 hourly rate. He contends that this limitation on compensation violates the separation of powers doctrine, constitutes a taking without just compensation, deprives indigent capital defendants of the effective assistance of counsel, and denies equal protection in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama state law. These claims have previously been addressed and decided 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.2d 219 (Ala.), cert. denied, *960522 U.S. 957, 118 S.Ct. 385, 139 L.Ed.2d 300 (1997); Boyd v. State. 715 So.2d 825 (Ala.Cr.App.1997), affd, 715 So.2d 852 (Ala.), cert. denied, 525 U.S. 968, 119 S.Ct. 416, 142 L.Ed.2d 338 (1998); Slaton v. State, 680 So.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. 673 So.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, 510 U.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.2d 157 (1985); Sparks v. Parker, 368 So.2d 528 (Ala.)

appeal dismissed, 444 U.S. 803, 100 S.Ct. 22, 62 L.Ed.2d 16 (1979).
Moreover, the statute provides that counsel shall be paid for all hours spent in-court and shall be reimbursed for any expenses reasonably incurred as long as the trial court approves those expenses in advance. Therefore, the appellant's contentions are without merit. XVII. [89] The appellant' s seventeenth argument is that Alabama's method of execution constitutes cruel and unusual punishment . However, both Alabama courts and the United States Supreme Court have repeatedly held that the death penalty is not per se cruel and unusual punishment and that electrocution as a means of capital punishment does not constitute cruel and unusual punishment . Williams v. State. 627 So.2d 985 (Ala.Cr.App.199 l ), affd, 627 So.2d 999 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Proffitt v. Florida, 428 U.S. 242,.96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Bovkin v. State, 281 Ala. 659, 207 So.2d 412 (1968), reversed on other grounds, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). . [90] The appellant also argues that Alabama's method of electrocution is unreliable and that it therefore constitutes cruel and unusual punishment. He contends that the State "will utilize faulty equipment, unqualified personnel, and inadequate procedures" in executing him. (Appellant's brief at p. 60.) In support thereof, he asserts that Alabama's electric chair has malfunctioned during two of the last ten executions , and he specifically refers to several 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, 140 L.Ed.2d 654 (1998), in which we held: " 'The United States Supreme Court addressed the

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death by electrocution issue in In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890). In determining what constitutes cruel and the Court stated: unusual punishments , "Punishments are cruel when they involve torture or a lingering death ; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there is something inhuman and barbarous ,-- something more than the mere extinguishment of life ." Id. at 447, 10 S.Ct. at 933. In holding that such a punishment is not cruel or unusual , the Court reasoned " that this act was passed in the effort to devise a more humane method of reaching the * 961Spinkellink v. Accord Id. result". Wainwright, 578 F.2d 582, 616 (5th Cir.1978). Appellant' s contention is therefore without merit; death by electrocution does not amount to cruel and unusual punishment per se , but is a constitutional means of imposing a sentence of death.' 516 So.2d 726, 737 "Jackson v. State, (Ala.Cr.App.1985), remanded on other grounds, 516 So.2d 768 (Ala.1986). "The appellant also contends that trial counsel should have argued that Alabama ' utilizes inadequate equipment , unqualified personnel, and inadequate procedures' and that Alabama's electric chair has consistently resulted 'in excessive burning and mutilation of condemned prisoners and rendered death by electrocution in Alabama unpredictable and consistently torturous ,' as, he asserts, is evidenced by the executions of Horace Dunkins and John Evans (in those executions repeated applications of electrical current were required because of a malfunction in the apparatus ) and by the executions of Dunkins , Michael Lindsay, and Wayne Ritter (post -execution examinations revealed 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 States Supreme Court , in addressing the issue of whether it was cruel for a state to electrocute a prisoner after the state' s first attempted electrocution failed, stated: " ' "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. The fact that an unforeseeable accident prevented the prompt

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consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution . There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution .... We cannot agree that the hardship imposed upon the petitioner rises to that level of hardship denounced as denial of due process because of cruelty." "'Id. at 464, 118 S.Ct. 1396, 67 S.Ct. at 376-77. The very issues raised by appellant here were addressed in Ritter v. Smith, 568 F.Supp. 1499 (S.D.Ala.1983), affd in part, rev' d in unrelated part, 726 F.2d 1505 (11th Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 218[, 83 L.Ed.2d 148] (1984) , wherein the court adopted the opinion and views expressed by Judge Sam C. Pointer after a hearing on the issues, in Raines v. Smith, No. 83-P-1080 -S (N.D.Ala.) ( unpublished order entered June 3, 1983) (certified copy attached as Appendix, Ritter v. Smith, 568 F. Supp . at 152527). The claims presented to Judge Pointer were as follows: (1) given the nature of the equipment and the procedures used , there was unnecessary and wanton infliction of pain and suffering upon persons subject to electrocution in Alabama; (2) the equipment and method involve an unreliable method of execution ; and (3 ) electrocution involves, in its method and equipment, a mutilation of the body which should be viewed as contrary to and violative of the Eighth Amendment. Id. at 1525-26. " 'After an evidentiary hearing , Judge Pointer held that the claims were due to be dismissed. Id. at 1527. In reaching this decision , Judge Pointer noted that the testimony established that over the past 50 * 962 years the chair in question had been used approximately 154 times without any failure ; that Evans suffered no pain after the initial shock; and that the possibility that the chair may malfunction at some time in the future does not render its use unconstitutional. Id. at 1526. Judge Pointer relied upon Francis v. Resweber and In re Kentmler [, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890 ),] in holding that Alabama' s method of electrocution is constitutional . Id. at 1526-27. We agree. " 'There is no evidence before this court that contradicts the findings made by Judge Pointer. There has been absolutely no showing that the State's method of enforcing a death sentence inflicts any more pain than is absolutely necessary . It has not been established that the

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(Cite as: 836 So.2d 915) equipment used in the electrocution of John Lewis Evans malfunctioned or that Evans felt anything after the first split second of the first jolt of electricity administered.'

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"Jackson. 516 So.2d at 738."

706 So.2d at 846-47. Thus, the appellant's arguments about Alabama's method of execution are without merit. XVIII. [91 ] The appellant's eighteenth argument is that the trial court improperly overrode the jury' s unanimous recommendation that he be sentenced to imprisonment for life without the possibility of parole. In support thereof, he complains that "Alabama is the only state in the country which allows trial courts to reject jury capital sentencing verdicts without reference to any uniform norm or standard." (Appellant's brief at p. 62.) He further contends that, "[b]ecause the override is standardless in Alabama, there is a haphazard and inconsistent application of the ultimate sanction in a manner that is inconsistent with the precedents of the Supreme Court." (Appellant's brief at p. 65.) We have previously addressed and rejected similar arguments in Carr v. State. 640 So.2d 1064 (Ala.Cr.App.1994), and in Bush v. State, 695 So.2d 70 (Ala.Cr.App.1995), affd, 695 So.2d 138 (Ala.), cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139 L.Ed.2d 320 (1997). In Carr, we explained: "The appellant maintains that the jury override provision of Ala.Code 1975, 13A-5-47(e), is unconstitutional. He claims that the statute contains no guidelines for the sentencing judge to follow and that the statute violates the Eighth Amendment, particularly in a case where, as here, the jury unanimously recommends a sentence of life imprisonment without parole. "Sentencing by a jury is not constitutionally required. Spa=iano v. Florida, 468 U.S. 447, 104 S.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 jury override 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 that the jury override provision of 13A-5-47(e) is constitutionally infirm because it allows for the 'arbitrary and standardless' imposition of the sentence of death has been repeatedly rejected by

the appellate courts of this state. See, e.g., Ev parte Jones, 456 So.2d 380, 381-83 (Ala.1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985); McMillian v. State, 594 So.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 judicial override of the jury's sentencing recommendation in a capital case'). "The trial court's sentencing order reflects the fact that the court gave 'consideration to the recommendation of the jury in its advisory verdict that the defendant be sentenced to life without parole.' R. 65. The court, however, after independently weighing the aggravating and mitigating circumstances, determined that the outweighed the aggravating circumstance mitigating circumstances and chose not to accept the jury's recommendation. Constitutional and statutory provisions require no more." Carr. 640 So.2d at 1073-74. "The appellant's contention that the override provision of 13A-5-47(e) is facially unconstitutional is without merit. The United States Supreme Court, as well as the courts of this state, have consistently upheld the validity of the judicial 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, 108 L.Ed.2d 725 (1990); Spa:iano v. Florida, 468 U.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, 84 L.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, the recommendation of the jury is advisory only and is not binding upon the trial court. Ex parte Jones. The trial court, not the jury, is the sentencing authority. Freeman v. State. "Section 13A-5-47(e) prescribes the following standard of review for jury override, which standard meets constitutional requirements: 'The whole catalog of aggravating circumstances must outweigh mitigating circumstances before a trial court may opt to impose the death penalty by overriding the jury's recommendation.' Er parte Jones, 456 So.2d at 382. The appellant's argument that the Alabama Death Penalty Act permits a trial court to impose a death sentence

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without any standards to guide its discretion is simply not true and ignores the requirements of the override provision. "The appellant argues that we should follow the Florida standard for jury override prescribed in Tedder v. State, 322 So.2d 908 (Fla.1975). Tedder provides that, in order for a trial court to reject a jury's recommendation of a sentence of life imprisonment without parole, 'the facts suggesting a sentence of death [must be] so clear and convincing that virtually no reasonable person 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 death penalty statute. "What we do require is that, before sentencing a defendant to death, the trial court consider all the available evidence; hear arguments on aggravating and mitigating circumstances; enter written findings of fact summarizing the crime and the defendant's participation in it; make specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in 13A-5-49, each mitigating circumstance enumerated in 13A-5-51, and any additional mitigating circumstance offered pursuant to 13A- 5-52; consider and weigh the advisory verdict of the jury; consider and weigh the presentence investigation report; consider and weigh the mitigating and aggravating circumstances; and determine *964 that the aggravating circumstances outweigh the mitigating circumstances. We believe that this scheme adequately channels the trial court's discretion so as to prevent arbitrary results. The Eighth Amendment does not require the state to define the weight the sentencing judge must accord an advisory verdict. Harris v. Alabama. " '[T]he sentencing authority in Alabama, the trial judge, has unlimited discretion to consider any perceived mitigating circumstances, and he can assign appropriate weight to particular mitigating circumstances. The United States Constitution does not require that specific weights be assigned to different aggravating and mitigating circumstances. Murry v. State, 455 So.2d 53 (Ala.Cr.App.1983), rev'd on other grounds, 455 So-2d 72 (Ala. 1984). Therefore, the trial judge is free to consider each case individually and determine whether a particular aggravating circumstance outweighs the mitigating circumstances or vice versa. Moore v. Balkcom,

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716 F.2d 1511 (11th Cir.1983). The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation.' 456 So.2d 99, 102 "Clisbr v. State. (Ala.Cr.App. 1983). We are convinced, after reviewing the record in this case, that the trial court complied with the sentencing scheme of Alabama's death penalty statute and that the sentence that it imposed, overriding the jury's verdict, met constitutional requirements and was not arbitrary, discriminatory, or fundamentally unfair." Bush, 695 So.2d at 93-94. Similarly, for the reasons set forth in this opinion, we conclude that the trial court complied with the sentencing requirements of Alabama's death penalty statute in overriding the jury's verdict and in sentencing the appellant to death. We further note that, in its sentencing order, the trial court specifically explained its reasons for overriding the jury's advisory verdict. Therefore, the trial court did not improperly override the jury's unanimous recommendation that the appellant be sentenced to imprisonment for life without the possibility of parole for the capital conviction.

M.
The appellant's nineteenth argument is that he is entitled to a new trial based on the cumulative effect of the above-alleged errors. However, we have reviewed those claims individually and have not found any error. Likewise, we have considered those claims cumulatively, and we still do not find any error that requires a new trial. Thus, this contention is without merit.

XX.
Pursuant to 13A-5-53, Ala.Code 1975 , we must address the propriety of the appellant 's conviction and sentence of death. The appellant was indicted and convicted of capital murder because he committed the murder during the course of a robbery in the first degree . See 13A-5-40( a)(2), Ala.Code 1975. [92] The record does not indicate that the sentence of death was imposed as a result of the influence of passion, prejudice, or any other arbitrary factor.

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13A-5-53( b)(1), Ala.Code 1975.

The trial court found that the aggravating circumstances outweighed the mitigating circumstances. The trial court found *965 that the State proved two aggravating circumstances: 1) the appellant committed the capital offense while he or an accomplice was engaged in the commission of a robbery, 13A- 5-49(4), Ala.Code 1975, and 2) the appellant committed the capital offense while he was under sentence of imprisonment, 13A-5-49(1), Ala.Code 1975. The trial court found mitigating that there was one statutory circumstance --the appellant was 18 years old at the time of the offense, 13A-5-51(7), Ala.Code 1975. The trial court also found the following nonstatutory mitigating circumstances: 1) the appellant voluntarily surrendered to the police; 2) the appellant did not attempt to evade his probation officer once he had been declared delinquent; 3) the appellant was truthful to his mother and was no trouble at home; 4) the appellant was not violent toward his girlfriend; 5) the appellant, according to his aunt , is a truthful person; and 6) the appellant exhibited remorse about the crime. The sentencing order shows that the trial court weighed the aggravating and mitigating circumstances and, as set forth in Part IV of this opinion, carefully considered the jury's advisory verdict. We conclude that the trial court's findings are supported by the record and that it correctly sentenced the appellant to death. [93] Section 13A-5-53(b)(2) requires us to weigh the aggravating and mitigating circumstances independently to determine the propriety of the appellant's sentence of death. After independently and mitigating weighing the aggravating circumstances , we find that the death sentence is appropriate. [94] As required by 13A-5-53(b)(3), we must determine whether the appellant' s sentence was disproportionate or excessive when compared to the penalties imposed in similar cases . The appellant murdered the victim during the course of a robbery in the first degree. Similar crimes are being punished 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, 695 So.2d 138 (Ala.), cert. denied, 522 U.S. 969, 118

S.Ct. 418, 139 L.Ed.2d 320 (1997); Payne v. State, 683 So.2d 440 (Ala.Cr.App.1995), affd. 683 So.2d 458 (Ala.1996), cert. denied, 520 U.S. 1146, 117 S.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, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995) . Accordingly, we conclude that the sentence was neither disproportionate nor excessive. Finally, we have searched the entire record for any error that may have adversely affected the appellant's substantial rights, and we have not found any. Rule 45A, Ala. R.App. P. Accordingly, we affirm the appellant's convictions and sentences as to both the capital offense and the theft offense. AFFIRMED.

LONG, P.J., and McMILLAN, COBB, and FRY, JJ., concur.

APPENDIX Trial Court's Order Dated June 25, 1998 1. SYNOPSIS

Lefrick Moore (Moore) was shot and killed on April 25, 1997, by Shonelle Jackson (Jackson). The motivation for the homicide was the theft of the stereo system from Moore's car. Jackson was convicted of the capital offense, and the jury recommended 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-count indictment for (1) the capital murder of Moore during a robbery in the first degree, Ala. Code 13A-5- 40(2); (2) the capital murder of Moore pursuant to 13A-5-40(a)(17); (3) theft of an automobile belonging to Ms. Lottie Flowers; and (4) an alternative count of receiving stolen property in the first degree (Ms. Flowers' automobile). The charge of capital murder pursuant to 13A-5-40(a)(17) was dismissed before trial, and at trial, the State elected to proceed on the charge of

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theft of property in the first degree and the charge of receiving stolen property was dismissed.

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FN1. Antonio Barnes, Eric Williams and Christopher Rudolph were also indicted for this capital offense. They testified against Jackson without any inducement by the State. Each appeared to attempt to lessen their individual culpability and shift blame to the other co-defendants. All had an interest in casting Jackson as the leader and prime culprit.

The jury returned verdicts of guilty of capital murder and theft of property in the first degree; and after a separate sentencing hearing, the jury recommended by a vote of 12-0 that Jackson be punished by life imprisonment without the possibility of parole.

III. THE VICTIM

Lefrick Moore was 23 years old, and he was married and the father of one child.

IV. SUMMARY OF THE CRIME AND JACKSON'S PARTICIPATION

The events which led to Moore's homicide started April 24, 1997, and were unrelated to Moore. On that evening, "Cocomo" slapped Jackson at a nightclub. The next day, April 25, Jackson determined to look for Cocomo and the tendencies of the evidence are that Jackson intended to do Cocomo physical injury, should he be found. Jackson did not have a car. He approached Antonio Barnes about stealing a car for him. [FN2] Barnes readily agreed, and Barnes and Jackson solicited "Wendel" to drive them to Brookview Apartments, where Jackson and Barnes stole Ms. Flowers' car. Barnes actually broke into the car and Jackson stood lookout.

Jackson was armed with a .380 caliber semiautomatic pistol; Barnes was armed with a .357 magnum handgun; Rudolph was armed with a 9 millimeter pistol; and Williams was armed with a shotgun. The search for Cocomo was futile; however, near the Smiley Court housing neighborhood, they saw Moore driving his car. Williams told the group that he was familiar with the car and the driver, and that the car had good music. Jackson then announced that "they" were going to rob the people in Moore's car. They stalked Moore until the opportunity presented itself to cut off Moore's car. Jackson passed Moore's car and cut in front of it to stop Moore. The cars collided and Jackson and Williams jumped out as Moore and the passenger in the car, Gerard Burdette, were getting out. At this point, Jackson and Williams fired their weapons. Before firing, however, Jackson said to Moore, "no need to run, motherfucker." [FN3] Jackson shot Moore, and Moore ran 100 to 150 yards, at which point *967 he collapsed and died. Jackson drove to where Moore lay, and Jackson's purpose was to rifle through Moore's pockets. [FN4] Barnes and Williams got into Moore's car and left the scene. They hid the car, and Williams took the stereo from the car. The next day, Jackson wanted to strip the car, and he, Barnes and "Fido" went to where the car was hidden; however, a Mr. Porterfield interrupted them and they left without stripping the car. On this same day, Williams told Jackson that Moore was dead, to which Jackson replied, "I don't give a fuck, he didn't stay where we stayed at."

FN3. This statement is attributed to Jackson by Eric Williams.

FN4. Id.

FN2. The evidence established that Barnes is known as a car thief.

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Jackson, Barnes. Eric Williams, and Christopher Rudolph then commenced the search for Cocomo.

Jackson turned himself in to the Montgomery Police Department after learning that he was wanted for questioning. He gave three conflicting statements to detectives. In the first statement he denied any knowledge of the event. He later said that he was with Deon driving around looking for Cocomo in a stolen car but had no involvement in the murder. In the final statement he admitted that he was at the scene and armed with a .380 pistol; however, he denied shooting Moore.

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

The State argues that it proved two aggravating circumstances : ( 1) that the capital offense was committed while Jackson was engaged in or was an accomplice in the commission of a robbery, 13A-5-49(4); and (2) that the capital offense was committed by a person under sentence of imprisonment, 13A-5-49(1). The Court finds that the State proved both aggravating circumstances beyond a reasonable doubt. sentencing aggravating The 13A-5-49(4) circumstance is the mirror of 13A- 5-40(2) guilt "aggravator," and when the jury found Jackson guilty of the capital offense , the jury found the sentencing aggravator beyond a reasonable doubt. The Court' s independent examination of the evidence , as summarized in section [IV.], leads the Court to hold that the jury's verdict in the guilt phase on this aggravator is highly reliable and the Court independently finds that the State proved this circumstance beyond a reasonable doubt. It is undisputed that when Jackson committed the offense he was on probation on suspended sentences for convictions of burglary in the second degree and theft of property in the first degree (CC-95-2147-EWR) and possession of marijuana in the first degree (CC-95-2367-EWR).

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Windsor v- State, 683 So.2d 1027 (Ala.Crim.App.1994'), affd, Ex parte Windsor. 683 So.2d 1042 (A1a.1996).

The Court finds that the capital offense was not committed while Jackson was under the influence of extreme mental or emotional disturbance . There is no evidence that Jackson suffered any mental illness or mental instability or that his *968 actions were motivated by anything other than his desire to commit the theft of the stereo from Moore's automobile. The Court finds that Moore was not a participant in Jackson' s conduct and the Court finds that Moore did not consent to Jackson's conduct. No evidence supports this circumstance. The Court finds that the Defendant was not an accomplice in the capital offense committed by another and the Court finds that his participation was not relatively minor; to the contrary, Jackson was the ringleader in this offense, and there is evidence that he was the shooter. [FN6]

FN6. There is also evidence that suggests that Barnes , not Jackson , fired the shot that killed Moore . See infra.

VI. MITIGATING CIRCUMSTANCES

Jackson suggests one statutory mitigating circumstance ; he was 18 years old at the time of the offense. 13A-5-51(7). He suggests two nonstatutory mitigating circumstances : ( 1) that he voluntarily surrendered to the police ; and (2 ) that he did not evade or resist arrest and he did not avoid his probation officer after he was declared a delinquent probationer. a. Statutory Mitigating Circumstances The Court finds that Jackson has a significant history or prior criminal activity. [FN5] The court finds that Jackson did not act under extreme duress or under the substantial domination of another person . There is no evidence of any form of duress and, as stated above , Jackson was the ringleader. The Court finds that there is no evidence which suggests that Jackson lacked the capacity to appreciate the criminality of his conduct, and there is no evidence that he lacked the ability to conform his conduct to the requirements of law. Jackson was 18 years old at the time of the commission of this offense. The Court finds that his age is a mitigating circumstance , but it is due slight weight for the reasons stated below. When considering the weight to be given to Jackson ' s age as a mitigating factor , this case is quite similar to Shellito v. State, 701 So.2d 837 (Fla. 1997).

FN5. His juvenile record is not a matter to consider when determining whether the circumstance exists. Freeman v. State. 651 So.2d 576 (Ala.Crim.App.1994). Jackson has three prior felony convictions.

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At the time of the homicide , Jackson was 6 feet tall, weighed 175 pounds and was within 35 days of being 19 years old. He is now 20 years old. At the time of the offense he apparently was, and he is, a physically mature adult. The victim was 23 years old.

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Moore ; rather, they grew out of other violations of his probation. The Court finds as a mitigating circumstance that Jackson was truthful to his mother and was no trouble at home ; however, she further testified that he had no violent tendencies and he had only minor scrapes with the law . In view of his juvenile record and his adult criminal record , either Ms . Jackson was mistaken or her testimony was colored by her motherly love and motherly instincts. The record reflects that Jackson in fact has violent tendencies as exhibited by two juvenile adjudications for robbery in the first degree and an adjudication for assault in the third degree , and it can hardly be said that his involvement with the law was minor. Therefore, the Court gives little weight to this mitigating circumstance. The Court finds as a mitigating circumstance that Jackson was not violent toward his girlfriend, and that, according to his aunt , he is a truthful person. However, in view of his overall criminal history and his apparent untruthful statements to police officers, the Court gives these circumstances slight weight. The Court has examined the record for other evidence of non -statutory mitigating circumstances. In this regard, the court has examined Jackson's statement in the presentence report. His statement does exhibit remorse ; however, it appears to the Court that just as Jackson did in his statements to the police, he is still attempting to avoid responsibility for this offense ; and in view of his criminal history the Court has a legitimate basis to doubt and the Court does doubt the bona fides of his expressed remorse. ii. The Advisory Verdict Section 13A-5-47(e) requires that the Court consider the advisory verdict in determining Jackson' s sentence . Whether the advisory verdict of life imprisonment without the possibility of parole is considered a mitigating circumstance is an unsettled issue . See Lewis v. State, 398 So.2d 432 (Fla.1981 )(jury recommendation of life without parole is considered a mitigating circumstance). But Ed Carnes ( now Judge Ed Carnes of the Eleventh Federal Judicial Circuit) opined in 1981 that the life recommendation is not a mitigating circumstance . E. Carnes, Alabama's 1981 Capital Punishment Statute, 42 Ala. Law, 456, 490 n. 37

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Jackson' s criminal record started at age 12 in juvenile court. He was arrested eight times as a juvenile, and he was adjudicated guilty of four felonies (burglary in the third degree , theft of property in the second degree , robbery in the first degree, and robbery in the first degree ), and he was committed to the Department of Youth Services on adjudications for assault in the third degree and two charges of robbery in the first degree . At age 17 he was waived from the juvenile court to adult court for prosecution on charges of burglary in the second degree , theft of property in the first degree, and possession of marijuana in the first degree. Jackson 's combined criminal record shows that he has been arrested 13 times and he has been charged with 14 separate crimes --five of which are felonies. Two of the felonies and one misdemeanor ( assault in the third degree ) are violent crimes . He was on probation for three felonies at the time he committed the homicide . He is the father of a three-month-old child . According to the presentence report, he was a daily user of marijuana since age 14 and a regular consumer of alcohol . He does not consider his marijuana use or his alcohol consumption a problem. Jackson' s age is a marginal mitigating circumstance. Shellito at 843. b. Nonstatutory Mitigating Circumstances i. General The Court finds as a mitigating circumstance that Jackson voluntarily surrendered to the police; however, this mitigating circumstance receives slight weight *969 inasmuch as Jackson denied any responsibility in this matter and attempted to avoid all responsibility. The Court finds that it is a mitigating circumstance that Jackson did not attempt to evade his probation officer once he had been declared delinquent. But, the Court gives this mitigating circumstance little weight inasmuch as the delinquent charge or charges did not grow out of the incident involving

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836 So.2d 915 (Cite as : 836 So.2d 915)
' (July 1981). The court is not cited to any Alabama case that speaks to this issue.

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The death acts of Alabama, Florida, and Indiana allow the sentencer--the trial judge--to override or not accept the advisory verdict; however, unlike the states of Florida and Indiana, neither the Alabama Death Act nor Alabama case authority informs the trial court how it is to consider the advisory verdict.

[FN7]
FN7. The holding in Roark v. State, 644 N.E.2d 565 (Ind.1994), reh'g denied, --N.E.2d ---- (Ind.1995), to some extent, and to a greater extent the holding in Tedder v. State, 322 So.2d 908 (Fla.1975), direct trial judges' consideration of the advisory verdicts in those states. Indiana requires that "at the point of final decision the [trial] court reflect upon the jury recommendation against imposing death." Roark at 570. However, the appellate court's independent review when the jury has recommended life and the trial judge sentences to death is guided by the standard of Martinez Chavez v. State, 539 N.E.2d 4, 5 (Ind.1989), which requires that before the death sentence is affirmed "it must appear ... [to the court] that all the facts available in the record point so clearly to the imposition of the death penalty that the jury's recommendation is unreasonable." Roark at 571. It is not unreasonable to consider that an Indiana trial court judge may impose this standard sub silentio. Before a Florida trial judge can override the jury's life verdict, "the facts suggesting a sentence of death should be so clear and convincing that no reasonable person could differ." Tedder at 910. Thus far Judge Colquitt's expectation that "Alabama appellate courts can reasonably be expected to develop and apply restrictions to a trial judge's power to reflect a sentence recommended by a jury" has not been realized. J.A. Colquitt, The Death Penalty Laws of Alabama, 33 Ala.L.Rev. 213, 328 (1982).

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this case to other similar reported cases; and (2) to test the reliability of the advisory verdict. The Court initially determined that it was more appropriate to compare similar cases because the Court thought that this case could be approximately measured against a standard , and to this end the Court required counsel to inform the Court of the sentences in other similar cases . However, in the final analysis , this method did not prove entirely satisfactory because sentencing is ultimately judge done and what intrinsically drives the sentence is never truly discernable . The State has proffered five cases for the Court's consideration : Lynn v. State, 477 So.2d 1365 (Ala.Crim.App.1984); Hart v. State, 612 So.2d 520 (Ala.Crim.App.1992); Carr v. 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.2d 849 (Ala.Crim App. 1997). The Court has read and considered each case , and although none is identical to the case sub judice, each contains some parallels and the Court is satisfied that taken together they offer a sufficient basis to compare against the sentencing verdict delivered by the jury in this case. The Court has not ignored the response of the defense. The Court does not accept as controlling the oft-repeated statistic that "approximately twothirds of death penalty cases in Alabama are result of murder during the course of a robbery." Guthrie v. State, 689 So.2d 948, 949 (Ala.Crim.App.1996). The defense makes a point that the appellate courts do not refer to the cases in which the death penalty is not imposed. The defense appears to argue that the analysis is not case-specific, which it suggests is constitutionally required to determine whether there is true proportionality in death sentencing. Whether this is correct as a matter of law is not an issue for this Court to answer. Having considered the advisory verdict and the cases proffered by the State, the court concludes that a verdict of death in this case would not be disproportionate or excessive when considered against the cases cited above. [FN8]

FN8. The approach would be a neater fit if the jury had returned an advisory verdict recommending death.

When considering the advisory verdict the Court considered two approaches: (1) *970 to compare

The alternative approach to complying with the

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statutory mandate that the Court "consider" the advisory verdict is for the Court to test the reliability of the advisory verdict. To effectively utilize this approach, the Court should presume that the sentencing verdict was not driven by or partially a product of the guilt-phase verdict. [FN9] However, as will be pointed out *971 below, the approach is less satisfactory than the comparison approach.

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set out evidence before the jury that was not produced by testimony, and that is the statement of Gerard Burdette, the passenger in Moore's car. A written transcript of this statement to police was put into evidence and provided to the jury in lieu of his testimony , because Burdette could not be located at the time of trial. According to Burdette, he was very "tight" with Moore. Transcript, unnumbered p. 9, question 4 and answer . Therefore, the Court presumes his statement would be favorable to Moore. His statement, not surprisingly, varies from the testimony given by Barnes , Williams, and Rudolph. Burdette's version of the event is "Got out they window and pointed they gun, and told us, say, 'Don't move.' ... And at first they shot out the window when they got out the window.... Then we got out and ran, and they just kept shooting." He said 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 .380 automatic , and he did not specifically enumerate how many people fired shots. He said he heard four to five shots (p. 8), and because he said he saw two persons with weapons, it could be reasonably inferred that the one or both fired. This latter point is consistent with the trial testimony. However, according to Burdette, and the medical examiner's opinion of the type bullet that killed Moore, the person with the .38 or .357 would have fired the fatal shot . That person was Barnes , assuming the testimony can be reconciled, because the evidence from Barnes and Williams is that Barnes had a .357. When the Court takes Burdette's testimony into account, there are several explanations for the advisory verdict. First, the jury could have been swayed by the pleas for mercy that were made by Jackson's family members and his aunt. Secondly, the jury could have concluded that all codefendants were equally culpable, and although the codefendants testified they were not offered leniency by the State, the *972 jury may have concluded that they would ultimately be treated differently by the State and the Court. In short, the jury may have reasoned that the State would not seek the death -penalty against the codefendants so

FN9. The Court is not convinced that indulging in this presumption is realistic. The jury deliberated for 35 minutes before returning its advisory verdict. As observed by Judge James L. Clement in State of Indiana v. Dennis R. Roark, Cause No. 45G04-8902-CF-00017 (Lake County Indiana Superior Court, Criminal Division, October 29, 1992): "In the death penalty or sentencing state of this trial, the jury deliberated only thirty-five to forty minutes before returning a recommendation that the death penalty not be imposed. I am not suggesting this time of deliberation is a significant factor in my decision, but one has to wonder whether the jury had time to carefully evaluate and balance the aggravating and mitigating circumstances presented to them. Roark at 6." Of course, it is understandable for a capital juror to retort, as noted by Professor Michel Mello: "If [the trial judge] wasn't going to follow our sentencing verdict, why did he ask us for our opinion in the first place'?" M. Mello, The Jurisdiction to do Justice: Florida's Jurv Override and The State Constitution, 18 U. Fla. St. L.Rev. 923, 927 (1991).

When considering the jury's recommendation, the Court is aware that attempting to explore the objective basis for the verdict may lead it into exploring the subjective basis for the verdict, and this would lead the Court down a slippery judicial slope. Therefore, the Court has consciously attempted to consider only the explanations based on the facts and inferences of fact which could have been reasonably determined by the jury. Before the analysis is undertaken, it is necessary to

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why should the jury return a death verdict in this case. Of course, this is a subjective evaluation of the verdict. Third, based on Burdette's version of the events the jury could have determined that Barnes fired the fatal shot. Fourth, keeping their oath the jury concluded that the mitigating circumstances outweighed the aggravating circumstances. This kind of analysis fails in the end because the trial judge is always privy to more factual and legal information than the jury. For instance, the Court has the benefit of 1) a presentence investigation; 2) additional evidence from the final sentencing hearing ( 13A-5-47); and 3) legal information in the form of appellate decisions to guide its judgment. With respect to legal information, the Court notes that the jury is not told that there are reported cases that hold that three felony convictions can outweigh the 13A-5-51(l) mitigating factor, or that other courts in similar circumstances have found that a defendant's age of 18 at the time of the offense is not entitled to great weight, or that residual doubt is not a proper consideration in determining the verdict. [FN 10]

Page 47

essential function of the advisory verdict is to focus the court in its independent consideration of weighing the aggravating circumstances and weighing the mitigating circumstances, and weighing them against each other. A clinical judicial evaluation of all the circumstances as enumerated in V and VI(a) and (b) and weighing the aggravating circumstances and weighing them against the mitigating circumstances, and considering these matters with the 12-0 verdict in the forefront of the Court's deliberations, the Court finds that the two aggravating circumstances outweigh the mitigating circumstances. The appropriate sentence in this case is death.

VII. CONCLUSION
Based on the foregoing findings, it is the judgment of the Court that Shonelle Andre Jackson be punished by death as provided by Ala.Code 15-18-80, - 81 and -82.

836 So.2d 915

FN10. Indeed, all guilt-phase evidence is introduced at the sentencing phase of the trial and the jury is instructed to consider this evidence. END OF DOCUMENT

The Court has reread its sentencing charge to the jury and it has noted its prejury selection explanation to the venire concerning the procedures in a capital case . The Court has also noted the closing arguments of the attorneys in the sentencing phase of the trial. The Court took pains to emphasize the importance of the sentencing verdict and, in fact, instructed the jury that the jurors were "to assume that what you decide will be the sentence imposed." The Court notes the State did not argue that the verdict was advisory. Therefore, I conclude that the jury was not led to believe that its verdict had lessened importance or did not count. In the final analysis the Court concludes that the result from the attempt to determine the reliability of the advisory verdict is so uncertain that it is not helpful; and it is unwilling to conclude that the jury departed from its instructions in rendering its verdict. Without some concrete direction from an appellate court, the final conclusion is that the Copr. West 2004 No Claim to Orig . U.S. Govt. Works

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836 So.2d 979 (Cite as: 836 So .2d 979) H
Supreme Court of Alabama. Ex parte Shonelle JACKSON. (In re Shonelle Jackson
V. State of Alabama).

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1981723.

fast-food restaurant cup had been found in vehicle codefendant had been driving with defendant's fingerprints on it did not render defendant's statement admitting he had been with other codefendants at time of murder involuntary, where officer lied to defendant to find out whether defendant had relationship with other codefendants, and defendant was not threatened or coerced into giving statement. 121 Criminal Law X1144.12 1 l Ok 1144.12 Most Cited Cases In reviewing the correctness of the trial court's ruling on a motion to suppress, the Supreme Court makes all the reasonable inferences and credibility choices 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 will not be disturbed unless it is palpably contrary to the great weight of the evidence. [41 Criminal Law X412.1(1) I10k412.1(1) Most Cited Cases 141 Criminal Law '695.5 I IOk695.5 Most Cited Cases Extrajudicial statements are prima facie involuntary and inadmissible; the duty rests on the trial court to determine whether the statement is voluntary, and unless it appears that it is voluntary it should not be admitted. 15] Criminal Law 414 110k414 Most Cited Cases The burden is on the state to show voluntariness and a Miranda predicate before an extrajudicial statement can be admitted into evidence. 161 Criminal Law X412.2(5) 11Ok412.2(5) Most Cited Cases Whether a Miranda waiver is voluntary, knowing,

May 10, 2002.

After jury trial, defendant was convicted in the Montgomery Circuit Court, No. CC-97-2300, William R. Gordon and Tracy S. McCooey, JJ., of capital murder and first-degree theft of property. Defendant appealed. The Court of Criminal Appeals, 836 So.2d 915, affirmed. On grant of certiorari, the Supreme Court, 836 So.2d 973, remanded. On overruling of rehearing and on return from remand, the Supreme Court held that: (1) police officer's false statement to defendant did not render defendant's statement involuntary; (2) exclusion of evidence that murder victim was involved in drug activity was proper; and (3) trial court's overriding of jury's recommendation of life imprisonment and imposition of death penalty was proper. A flirrned. Johnstone, J., concurred in part, concurred in the result in part, and dissented in part as to the opinion and dissented from the denial of rehearing, with opinion. Lyons, J., concurred in part, dissented in part as to the rationale and dissented from the judgment and dissented 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

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and intelligent depends on the particular facts and underlying circumstances of each case, including the background, experience, and conduct of the accused. [7] Criminal Law X412(4) I10k412(4) Most Cited Cases 171 Criminal Law 695.5 110k695.5 Most Cited Cases The voluntariness of an inculpatory statement remains undetermined until the trial court has examined the totality of the circumstances surrounding the statement. 181 Criminal Law E=414 1 I0k414 Most Cited Cases The trial court's finding that a statement was voluntary need only be supported by a preponderance 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 extrajudicial confession or an inculpatory, statement is whether, in light of all the surrounding circumstances, the statement was free from inducement, threat, or promise, either expressed or implied, that would have produced in the mind of the accused any fear of harm or hope of favor. (101 Homicide 997 203k997 Most Cited Cases (Formerly 203k163(2)) Exclusion of evidence that murder victim was involved in drug activity was proper, where neither defendant nor codefendants mentioned drug deal gone bad in statements to police, and passenger in automobile with victim at time of murder did not mention that murder was related to drug activity. [11] Criminal Law 632(4) 110k632(4) Most Cited Cases

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A motion in limine is the proper method by which to 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 limine rests within the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion. 1131 Criminal Law X338(1) 110k338(1) Most Cited Cases The test for relevancy is whether the evidence bears any logical relationship to the ultimate inference for which it is offered. 1141 Sentencing and Punishment X1784(3) 350Hkl784(3) Most Cited Cases Trial court's overriding of jury's recommendation of life imprisonment and imposition of death penalty was proper, where in determining sentence trial court considered all available evidence, heard arguments on aggravating circumstances, including fact that offense was committed while defendant was engaged in robbery or attempted robbery, and that defendant was under sentence of imprisonment when offense was committed, and mitigating circumstances, including fact that defendant was only 18 years old, and entered findings, there was no evidence in record indicating that bias, passion, or prejudice were factors in trial court's imposing death sentence, and trial court provided detailed analysis of its consideration of jury's recommendation of sentence of life imprisonment and reasons it rejected that recommendation and sentenced defendant to death. Code 1975, 13A-5-53. 1151 Sentencing and Punishment X329 350Hk329 Most Cited Cases The decision whether a particular mitigating circumstance is proven and the weight to be given it rests with the judge and the jury. 1161 Sentencing and Punishment X1789(10) 350Hk1789(10) Most Cited Cases

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Reinstatement of a jury recommendation of life imprisonment without parole is appropriate in those circumstances where the trial court has overridden the jury's recommendation based on bias , passion, or prejudice , a defective weighing of aggravating or or disproportionate mitigating circumstances , severity of the sentence under all of the circumstances . 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 and Anne C. Adams, asst. attys. gen., for respondent.

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notice any plain error or defect in the proceedings under review in those cases." "Court Comment to Amendment to Rule 39 , effective May 19, 2000, as to death-penalty cases, etc." Ala.R.App.P.

*982 Appeals for that court to remand the case for the trial court to conduct a hearing outside the presence of the jury to determine the admissibility of Jackson's inculpatory statement . Lr parte Jackson. 836 So.2d 973 (Ala.2001). We instructed the Court of Criminal Appeals to forward the trial court's return to this Court. It appears that the trial court has complied with our directions and has conducted a hearing to determine the admissibility of Jackson' s statement. 1. [1][2][3] Jackson contends that the trial court erred in denying his motion to suppress a statement he made to a law-enforcement officer because, he says, the officer tricked him into making the statement. " 'In reviewing the correctness of the trial court's ruling on a motion to suppress, this Court makes all the reasonable inferences and credibility choices supportive of the decision of the trial court.' " Kennedy v. State. 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley v. State, 494 So.2d 750, 760-61 (Ala.Crim.App.1985), affd, 494 So.2d 772 (AIa.1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). The trial court's ruling on a motion to suppress will not be disturbed unless it is palpably contrary to the great weight of the evidence. See Dixon v. State, 588 So.2d 903 (Ala.1991); Parker v. State, 587 So.2d 1072, 1088 (Ala.Crim.App.1991); Rutledge v. State. 680 So.2d 997, 1002 (Ala.Crim.App.1996); and Maples v. State, 758 So.2d 1 (Ala.Crim.App.1999), affd, 758 So.2d 81 (Ala.1999), cert, denied, 531 U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000). [4][5][6][7] Extrajudicial statements are prima facie involuntary and inadmissible; the duty rests on the trial court to determine whether the statement is voluntary, and unless it appears that it is voluntary it should not be admitted. See Farrior v. State. 728 So.2d 691 (Ala.Crim.App.1998). The burden is on the State to show voluntariness and a Miranda [FN2] predicate before such a statement can be admitted into evidence. See Lewis v. State. 535 So.2d 228 (Ala.Crim.App.1988). "Whether a waiver is voluntary, knowing, and intelligent

PER CURIAM. The opinion of February 15, 2002, is withdrawn and the following is substituted therefor. Shonelle Jackson was convicted of murder made capital because the killing occurred during the commission of a robbery in the first degree, see 13A- 5-40(a)(2), Ala.Code 1975; the was sentenced to death on that conviction. He was also convicted of first-degree theft of property, see 13A-8-3, Ala.Code 1975, and on that conviction he was sentenced to life imprisonment as an habitual offender with three prior felony convictions, see 13A-5- 9(c)(2), Ala.Code 1975. The Court of Criminal Appeals affirmed both convictions and sentences . See Jackson v. State, 836 So.2d 915 (Ala.Crim.App.1999). This Court granted certiorari review, see Rule 39(c), Ala.R.App.P., as it read before it was amended effective May 19, 2000, [FN l ] and remanded the case to the Court of Criminal

FN I . Rule 39, Ala.R.App.P., was amended effective May 19, 2000, as to death-penalty cases. "The amendment removes the provision in the former Rule 39(c) that provided that a petition for a writ of certiorari to the Supreme Court. in a case in which the death penalty was imposed would be granted as a matter of right. With this amendment, review of death-penalty cases will be at the discretion of the Supreme Court. The Supreme Court retains the authority to

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836 So.2d 979 (Cite as: 836 So.2d 979)
depends on the particular facts and underlying circumstances of each case, including the background, experience, and conduct of the accused--i.e., the totality of the circumstances."

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Click v. State,

695 So.2d 209, 218

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

parse Hill. 557 So.2d 838, 841 (Ala.1989). FN2. Miranda v. Arizona, 384 U . S . 436 , 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[8][9] The trial court ' s finding that a statement was voluntary need only be supported by a preponderance of the evidence. Dixon v. State, supra. The test for the voluntariness of an extrajudicial confession or an inculpatory statement is whether, in. light of all the surrounding circumstances , the statement was free from inducement, threat, or promise, either expressed or *983 implied, that would have produced in the mind of 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, 143 L.Ed.2d 1012 (1999).
Moreover, "more subtle forms of psychological manipulation, such as trickery or deception by the police, have not been considered sufficiently coercive, 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 on return to remand: "On August 31, 2001, the Alabama Court of Criminal Appeals remanded this case to the trial court to conduct proceedings consistent with the Opinion as written and released by the Alabama Supreme Court on May 18, 2001. The Alabama Supreme Court [had] remanded this case to the Alabama Court of Criminal Appeals with the instructions to order the trial court to conduct a hearing to determine the admissibility of Defendant Jackson's extrajudicial statement. The trial court appointed the Honorable Bryan A.

Stevenson to represent the defendant at the

hearing, which was conducted on October 24,

2001. At the hearing, the defendant was

represented by Mr. Stevenson, as well as the Honorable Randall Susskind, both of the Equal Justice Initiative of Alabama. The State of Alabama was represented by the Honorable Susan Redmond, Chief Deputy District Attorney for Montgomery County. After hearing the testimony and accepting exhibits introduced into evidence, this Court advised the parties that they would have 7 days in which to present any Memorandum of Law supporting their respective positions. Defense counsel submitted a Memorandum of Law on November 2, 2001, and this Court has reviewed the same. "The State of Alabama called its first and only witness, Detective A.J. Signore, of the Montgomery Police Department. Detective Signore testified that he had been employed with the Montgomery Police Department for 10 years, and in 1997, had been a homicide investigator. Pursuant to this case, Detective Signore testified that the defendant's mother signed a 'consent to search' her home wherein detectives confiscated certain items, including .380-caliber bullets. The detectives, before leaving the defendant's mother's home, told the mother that if the defendant came home she was to notify [them] that the police would like to talk to him. Later that afternoon, the defendant went to police headquarters to talk to the detectives. At the hearing, Detective Signore testified that the defendant, who was 18 years old at the time, reported to the police headquarters where Detective Signore and his partner, Detective C.D. Phillips, were on duty. Detective Signore testified that the defendant was read his Miranda rights, after which he signed the waiver form indicating that he understood his rights, that he had not been promised anything or threatened in any way and that he wished to give a statement to the police. The defendant's statement was taken in Detective Signore's office at the Montgomery Police Department with Detective Phillips also present.* "Initially, the defendant denied even knowing the three other codefendants that were involved in the shooting. Detective Signore testified at the hearing that he had statements from the 3 codefendants stating that all 3 of them knew the defendant and that the defendant had been involved in the shooting. Detective *984 Signore stated that in order to get the defendant to tell the truth about his relationship with the other 3 codefendants, he told the defendant that a Dairy

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Queen [fast-food restaurant] cup had been found in the vehicle with the defendant's fingerprints on it. After Detective Signore told the defendant this information, the defendant then told Detective Signore that, in fact, he did know the other codefendants, but denied any involvement in the shooting. After telling Detective Signore that he knew the other codefendants, he asked the detective if he could make another statement. In his second statement, Defendant Jackson admitted to having been with the other codefendants at the time of the murder and to possessing a .380 automatic pistol. "The defense called Ms. Rosalyn Jordan as its first witness. Ms. Jordan is a sixth-grade teacher at Patterson Elementary School, She testified that the defendant had been a student in her classroom and her records indicated that he had failed the first and third grades. She stated that the defendant was a low-achiever and that he was 13 years old in the sixth-grade. She also stated that she had only seen the defendant a few times since he had been a sixth- grader in her class. The defense also called Ms. Thelma Owens, who is an employee at the Southern Poverty Law Center. She is related to the defendant, as his aunt, and she stated that she helped to raise him. She went on to state that the defendant was very respectful of her and any type of authority figures. "There was absolutely no question that Detective Signore lied to the defendant about the fingerprints on the Dairy Queen cup. It is important to recognize, however, that the lie was told by Detective Signore only in order to find out if the defendant did, in fact, have a relationship with the other codefendants. The lie was not told to induce the defendant to confess [to] a crime. Alabama Courts have repeatedly held that a confession is not inadmissible merely because it was induced by a trick or misrepresentation. As defense counsel pointed out in its Memorandum of Law, although police deception is not conclusive as to the voluntariness of a statement, it is certainly a factor to be considered in the detennination of its voluntariness . 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 the deception used in this case was not deception that led to a confession to the actual crime. The deception or misrepresentation used by Detective Signore was only used in order to establish whether or not a relationship existed between the

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defendant and codefendants. After the statement was made concerning the fingerprints on the Dairy Queen cup, Defendant Jackson admitted only to knowing the codefendants, but denied any involvement in the actual crime. "This Court must look at the totality of the circumstances in analyzing whether or not the defendant's extrajudicial statement was voluntary or not. The Court is convinced, after conducting the hearing, that the defendant did, in fact, voluntarily come to the police station and, after being read his Miranda rights and signing his waiver, he agreed to talk to the detectives. There was no testimony and/or evidence presented that would indicate that the defendant could not knowingly and voluntarily waive his rights and agree to talk with the detectives. There was also nothing unusual or extraordinary about the room in which the statement was taken, or the manner in which the statement was obtained. As Justice Stuart so ably stated *985 in her dissent [to the Supreme Court's opinion of May 18, 2001], there is no question that Detective Signore made misrepresentations concerning the fingerprints found on the Dairy Queen cup; however, whether or not the misrepresentations render a statement involuntary is a question of law and does not require the gathering of additional facts in order to make a decision. This trial court, however, has conducted the hearing as ordered by the majority and would point out that no new information or facts were gleaned . from this hearing and this court finds that after examining the totality of the circumstances surrounding the statement of the defendant, said statement was made voluntarily and is therefore admissible.

FN" * Detective Signore's office in which the defendant's statement was taken is a normal detective office containing a desk and two chairs positioned facing the desk. Defense counsel went into very elaborate details about the office in its Memorandum of Law trying to show that the room would imply that the statement was not voluntary. The Court found nothing unusual, deceptive, or coercive about the room in which defendant's statement was taken at Montgomery Police Department Headquarters."

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The trial court's findings are adequately supported by the record. We have carefully reviewed the record on return to remand to determine whether Jackson voluntarily and knowingly waived his Miranda rights before making the inculpatory statement to the police and whether the statement was voluntary. After considering the totality of the circumstances surrounding Jackson' s statement, we conclude that the State met its burden in proving that Jackson voluntarily and knowingly waived his Miranda rights and that he made his statement voluntarily. The record does not reveal that Jackson was threatened or coerced into giving a statement. The weight and preponderance of the evidence support the trial court's decision to deny the motion to suppress . Therefore, the trial court did not err in denying the motion to suppress Jackson's statement. 11. In his brief to this Court, Jackson raises several additional issues , which include subissues, for review , all of which were argued in the Court of Criminal Appeals and were thoroughly addressed by that court. We have carefully reviewed all the issues raised by Jackson and we will address the following two issues, which were specifically addressed by Jackson's counsel at oral argument before this Court: 1. Whether the trial court erred in granting the State's motion in limine, preventing him, Jackson argues, from presenting motive evidence; and 2. Whether the trial court erred in overriding the unanimous jury recommendation of life imprisonment without the possibility of parole and sentencing Jackson to death. A. [10] Jackson contends that the trial court erred in granting the State ' s motion in limine because, he says, its doing so improperly prevented him from presenting evidence that the motive for the murder was retaliation for a drug deal that had gone "bad," not robbery as the State alleged . He argues that by granting the State's motion , the trial court prevented him from testifying, from cross-examining witnesses , and from presenting mitigation evidence. [11][12][13] A motion in limine is the proper method by which to prohibit the introduction of irrelevant evidence . Wilev v. State, 516 So.2d 812,

814 (Ala,Crim.App.1986), rev'd on other grounds, 516 So.2d 816 (Ala.1987). The decision to grant or deny such a motion rests within the sound discretion of the trial court and that decision *986 will not be overturned on appeal absent an abuse of discretion. Id. The test for relevancy is whether the evidence "bears any logical relationship to the ultimate inference 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.2d 177 (Ala.Crim.App.1992). The State filed a pretrial motion in limine requesting that Jackson be prevented from presenting evidence that the victim was involved in drug activity , because, it argued , such evidence was immaterial and irrelevant to the case . In response, Jackson argued that the victim's drug activity went to the reason for the confrontation between Jackson, his codefendants, and the victim and that evidence of that activity was, therefore , relevant. After holding a hearing on the motion, the trial court granted the State's motion . On the day of trial, Jackson' s counsel asked the court to reconsider its ruling because Jackson might decide to testify. The trial court indicated that it would reconsider its ruling if Jackson decided to testify. [FN3] Jackson did not testify, and his counsel did not raise the issue again and did not later ask the court to reconsider its ruling. Because the trial court stated that it would reconsider its ruling, the ruling on the motion in limine was not a final order and the issue was 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 the plain-error rule. Rule 45A, Ala.R.App.P.

FN3. The following colloquy occurred: "[Defense counsel] : Judge , we would ask the Court to reconsider the ruling on the motion in limine and at least withhold ruling until maybe the sentencing phase. Our client -- we have not made a decision as to whether we are going to allow our client to testify or not. His testimony, if he does testify, will be diametrically opposed to the facts- - underlying facts as the district attorney had presented them, which creates a conflict and a jury question. His testimony deals with a drug deal . I don't

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want to be put in a situation where we can't ask our client questions about what really happened in this case . We would be limited, to have his testimony limited. "THE COURT: Well, you know , that's the first I have heard of that , for the record. It's not a criticism . It's just for the record. You know , I will--you know , if and when you decide whether or not your client is going to testify, I will let you ask me to reconsider it at that point." jury's sentencing recommendation.

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1 1 1 1 1 1 1 1 1 1 1 1 I 1

Nothing in the record supports Jackson's contention that the offense was the result of a drug deal gone "bad." The record indicates that the victim's wife informed the police that her husband was a small-time dealer of crack cocaine. However, neither Jackson nor the codefendants mentioned a drug deal gone "bad" in their statements to law-enforcement officers after the offense. At the hearing, defense counsel stated that he wanted to cross-examine certain witnesses about the victim's being a drug dealer to determine if those witnesses would testify that the victim had been killed as the result of a "bad" drug deal. Defense counsel merely speculated that there was a potential for such testimony; nothing in his proffer indicates that evidence existed to support this theory. While the statement of Gerard Burdette , a passenger in the automobile with the victim at the time of the murder, did refer to "gang" activity, the statement did not indicate that the murder was related to drug activity. Nothing in the record, other than defense counsel's speculation, supports Jackson's theory that the killing was the result of a drug deal gone "bad." Speculation and conjecture do not establish relevant evidence of the existence of a viable defense. Therefore, we hold that the trial court's grant of the State's motion *987 in limine did not constitute error, plain or otherwise. B. [14] Jackson contends that the trial court erred in overriding the jury recommendation of life imprisonment without the possibility of parole, which was unanimous, and sentencing him to death.

Section 13A-5-47(b), Ala.Code 1975, requires that the trial court order and receive a written presentence-investigation report before it determines the sentence in a capital case. Section 13A-5-47(b) further provides that the presentence-investigation report and any evidence submitted in connection with it shall be made part of the record in the case. "Rule 26.3(b), Ala. R.Crim. P., provides for what can be contained in such a presentence report. When a defendant has a significant juvenile record, his or her teenage difficulties will appear as part of the presentence report. However, under the Alabama capital-sentencing scheme, juvenile adjudications are not convictions and cannot be considered 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, 496 U.S. 912, 110 S.Ct. 2604, 110 L.Ed,2d 284 (1990). Only convictions can negate the statutory mitigating circumstance of no significant history of prior criminal activity. 13A-5- 51(1), Ala.Code 1975; Freeman v. State, 651 Sold 576, 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 statutory mitigating circumstance--that Jackson was 18 years old 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. the statutory mitigating circumstance that he had no. significant history of prior criminal activity. 13A-5-51(1). In fact, the trial court specifically stated that Jackson's juvenile record could not be considered in determining whether that statutory mitigating circumstance existed. However, the court noted that Jackson had a significant prior criminal history; he had three felony convictions. Error, if any, by the trial court in considering Jackson's juvenile record was harmless. Ex parte 718 So,2d 1166, 1178 (Ala.1998). Davis. Therefore, the trial court properly assessed the weight it was to assign that mitigating circumstance in light of Jackson's prior felony convictions.

2.
First, Jackson contends that the trial court erred in considering his juvenile record in overriding the Jackson contends that the trial court improperly considered his physical characteristics in

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considering the statutory mitigating circumstance of his age at the time of the offense. See 13A-5-51(7), Ala.Code 1975. Specifically, he argues that the trial court's reference to his height and weight at the time of the crime was arbitrary and that it deprived him of a reliable sentencing determination.

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The trial court did not err in its assessment of the weight to assign the mitigating circumstance of Jackson's age at the time of the offense.

3.
Jackson further contends that the trial court improperly plagiarized the sentencing order from Shellito v. State, 701 So.2d 837, 843-44 (Fla.1997), cert. denied, 523 U.S. 1084, 118 S.Ct. 1537, 140 L.Ed.2d 686 (1998), in its analysis of the mitigating circumstance of Jackson's age . Specifically, Jackson argues that the trial court used the Shellito as a sentencing order from "fill-in-the-blank" form, thereby depriving him of an individualized sentencing determination. The record shows that in the sentencing order, the trial court stated that Jackson's case was similar to Slrcllito. Upon review of Shellito and of the trial court's sentencing order, we conclude that the trial court adopted only the analysis used in Shellito. In this case, the trial court's assessment contains a thorough analysis of the facts and the circumstances involved in this case, thereby providing an individualized sentencing determination. We find no error. 4. Jackson contends that the trial court failed to make an adequate determination of his culpability by failing to determine whether he was the actual shooter in the murder.
In its sentencing order, the trial court stated "there is evidence that [Jackson] was the shooter [and] there is evidence that suggests that [one of Jackson's codefendants], not [Jackson] fired the shot that killed [the victim]." The record supports the court's determination of Jackson's culpability. Therefore, Jackson's argument that the trial court failed to determine his culpability is without merit.

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 trial judge, has unlimited discretion to consider any perceived mitigating circumstances, and he can assign appropriate weight to particular mitigating circumstances. The United States Constitution does not require that specific *988 weights be assigned to different aggravating and mitigating circumstances . 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 trial judge is free to consider each case individually and determine whether a particular aggravating circumstance outweighs the mitigating circumstances or vice versa. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.1983), The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation." [15] The record reflects that in weighing the mitigating circumstance of Jackson's age at the time of the offense, the trial court noted Jackson's height, his weight, and his age at the time of the offense, as well as the fact that Jackson was the father of a 3-month-old child, that he had smoked marijuana since he was 14 years old, that he consumed alcohol on a regular basis, and that he had an extensive criminal record. The court also noted that Jackson was "a physically mature adult" at the time of the offense. A trial judge can consider past behavior and prior criminal activity in evaluating a defendant's maturity and in determining the weight to be given the mitigating circumstance of the defendant's age. Cf. Ex parse Burgess, supra. The mitigating decision whether a particular circumstance is proven and the weight to be given it rests 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).

5.
Finally, Jackson contends that the trial court's override of the jury's unanimous recommendation of life imprisonment without *989 parole was improper, arbitrary, and unconstitutional, and that it wrongfully negated the role of the jury . He argues that 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 it fails to give lower courts guidance in rejecting a jury 's recommendation.

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FN4. Section 13A-5-47(e), Ala.Code 1975 , provides: "In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict had been waived pursuant to Section 13A-5-46(a) or While the July's 13A-5-46(g). recommendation concerning sentence shall be given consideration, it is not binding upon the court."

provides an explicit statutory directive that the jury's recommendation as to the sentence is "not binding upon the court." Adopting a rule like the one set forth in Tedder would impermissibly rewrite the statute, in violation of our constitutional duty to observe the separation between the powers conferred upon the judiciary and those conferred upon the Legislature. 43 Constitution of Alabama of 1901.

We now turn to an analysis of the propriety of the override of the jury's recommendation of life imprisonment 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 proper sentence in the case the Alabama Court of Criminal Appeals, subject to review by the Alabama Supreme Court, shall determine: "(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; "(2) Whether an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence; and "(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. "(c) The Court of Criminal Appeals shall explicitly address each of the three questions specified in subsection (b) of this section in every case it reviews in *990 which a sentence of death has been imposed. "(d) After performing the review specified in this section, 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 is deemed inappropriate under subdivision (b)(2) or (b)(3) of this section, set the sentence of death aside and remand to the trial court with directions that the defendant be sentenced to life imprisonment without parole." Thus, reinstatement of a jury recommendation of life imprisonment without parole is appropriate in those circumstances where the trial court has

(Emphasis added.)
This Court in a- puree Apicella. 809 So.2d 865 (Ala.2001), upheld the constitutionality of having a judge , not the jury, determine the punishment in a capital case. In Fa- porte Ta-vlor, 808 So.2d 1215

I I I I

(Ala.2001), this Court held that the

capital-sentencing procedure set forth in

13A-5-47 and 13A-5-53, Ala.Code 1975, provided

sufficient guidance to prevent the arbitrary and capricious imposition of a death sentence. [FN5] Specifically, the Court noted that the capital -sentencing procedure "ensures that the trial judge is given adequate information and sufficient guidance in deciding whether to accept or to reject a jury's recommended sentence" and that 13A-5-53, Ala.Code 1975 , provided sufficient guidelines for an appellate determination of "whether a trial judge's override of the jury's recommendation is appropriate in a particular case." 808 So.2d at 1219

FN5. We cannot accept Jackson's invitation to engraft the rule propounded in Tedder v. State. 322 So.2d 908, 910 (Fla.1975)(stating that for a trial court to impose a death sentence over a jury's recommendation of life imprisonment without parole, "the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ"). Section 13A-5-47(e)

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(Cite as : 836 So .2d 979) overridden the jury's recommendation based on bias, passion, or prejudice; where the weighing of or mitigating circumstances is aggravating sentence is defective; or where the disproportionately severe under all of the circumstances . See `? 13A-5-53(b), Ala.Code 1975. In this case, before determining the sentence, the trial court considered all the available evidence; heard arguments on aggravating circumstances and mitigating circumstances; entered written findings of fact summarizing the offense and Jackson's participation in it; made specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in 13A-5-49, each mitigating circumstance enumerated in 13A- 5-51, and any additional mitigating circumstance offered pursuant to 13A-5- 52; weighed the advisory verdict of the jury; considered and weighed the presentence-investigation report; considered and independently weighed the mitigating circumstances and the aggravating circumstances; and stated specific reasons for giving the jury's recommendation the consideration it gave the recommendation, see Ex pane Taylor. After following this procedure, the trial court concluded that the aggravating circumstances outweighed the mitigating circumstance and imposed the death penalty, overriding the jury's recommendation. We commend the trial. court for its thorough sentencing order and especially for its explanation for its override of the jury recommendation. The trial court found two statutory aggravating circumstances: (1) that the capital offense was committed while Jackson was engaged in a robbery or an attempted robbery, and (2) that the capital offense was committed by a person under sentence of imprisonment. The trial court found one statutory mitigating circumstance: that Jackson was 18 years old at the time of the offense. It is evident from the trial court's sentencing order that it independently weighed the aggravating circumstances and the mitigating circumstance. Additionally, the trial court provided a detailed analysis of its consideration of the jury's recommendation of a sentence of life imprisonment without the possibility of parole and the reasons it rejected that recommendation and sentenced Jackson to death. There is no evidence in the record before us indicating that bias, passion, or prejudice were factors in the trial court's imposing the death sentence.

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We have independently weighed the aggravating and mitigating circumstances to determine if death is the appropriate sentence; we conclude, as did the Court of Criminal Appeals. that the aggravating circumstances in this case outweighed the mitigating circumstance. Furthermore, we agree with the Court of Criminal Appeals that in this case the punishment of death is not excessive or disproportionate to the penalty imposed in similar cases. *991 Therefore, we hold that the imposition of the death sentence in this case was proper. The judgment of the Court of Criminal Appeals is affirmed.

OPINION OF FEBRUARY 15, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; AFFIRMED.
MOORS, C.J., and HOUSTON, SEE, BLOWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., concurs in pant, concurs in the result in part, and dissents in part as to the opinion and dissents from the denial of rehearing.

LYONS, J., concurs in part and dissents in part as to the rationale and dissents from the judgment and dissents from the denial of rehearing.

JOHNSTONE, Justice (concurring in part, concurring in the result in part, and dissenting in part as to the opinion and dissenting from the denial of rehearing).

With one exception, I concur in the rationale of the main opinion on the issue of guilt or innocence. The exception is that I do not agree with the trial judge's rationale, recited in the main opinion, for the conclusion that Detective Signore's lie did not render the defendant's statement involuntary and therefore inadmissible. That the statement was not a full confession but was, rather, only an admission

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of inculpatory relationships is immaterial to the issue whether the statement was voluntary. I agree, however, with the conclusion that the lie in this case did not constitute such a threat or such coercion as would render the statement involuntary and inadmissible. A caveat is appropriate on an aspect of the opinion of the Court of Criminal Appeals in this case, 836 So.2d 915 Jackson V. State, (Ala.Crim.App.1999). In Part V of that opinion, the Court of Criminal Appeals appears to hold that the facts of this case would not support a jury instruction on the lesser - included offense of robbery. Had the defendant requested such a jury instruction , it would have been due him. The evidence supporting this theory, however, is not so strong that the trial court committed plain error in omitting such an instruction in the. absence of a request for one by the defendant. I respectfully dissent from affirming the Court of Criminal Appeals in its affirmance of the judgment imposing the death penalty pursuant to the trial judge' s override of the unanimous recommendation of life imprisonment without the possibility of parole returned by the jury. I agree with Justice Lyons' s special writing that the unanimous recommendation of the jury for life imprisonment should be deemed a mitigating circumstance. I further agree with Justice Lyons that the two aggravating circumstances found in this case do not outweigh the combined mitigating circumstances of the life recommendation , the uncertainties in the evidence that the defendant was the triggerman, and the young age of the defendant. In assigning no weight nor binding effect to a life-imprisonment recommendation by a jury, Alabama law reduces to a sham the role of the jury in sentencing and allows baseless, disparate sentencing of defendants in capital cases. The first of these consequences of Alabama law is a denial of due process of law, and the second is both a denial of due process and a denial of equal protection. Accordingly , while I agree with the adjudication of the defendant' s guilt, I dissent from affirming the affirmance of the death sentence . I would reverse the judgment of the Court of Criminal Appeals affirming the death sentence and would remand the cause for the defendant to be *992 resentenced to life imprisonment without the possibility of parole.

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I also dissent from the denial of rehearing in this case.

LYONS, Justice (concurring in part and dissenting in 'part as to the rationale and dissenting from the judgment and dissenting from the denial of rehearing). I concur in the main opinion' s rejection of Jackson's contentions concerning the denial of his motion to suppress , the denial of his motion in limine, the trial court' s consideration of his juvenile record and his physical characteristics, and the alleged plagiarism of a sentencing order from another case . However, because I would reinstate the jury' s unanimous recommendation of life imprisonment without parole , I must dissent from the portion of the main opinion that holds otherwise. I also dissent from the denial of rehearing. The Judicial Article, Amendment No. 328, Alabama Constitution of 1901, confers upon our appellate courts the responsibility for review of all cases, including those in which a sentence of death has been imposed. The Legislature has been more specific. The Court of Criminal Appeals, subject to review by this Court, is authorized by 13A-5-53, Ala.Code 1975, to review the propriety of a death sentence and , where appropriate , to "set the sentence of death aside and remand to the trial court with directions that the defendant be sentenced to life imprisonment without parole." 13A-5-53 (d)(3). Justice Maddox has previously acknowledged that our appellate courts "are especially sensitive to their roles when there is a jury override ." Ex parte Tarver. 553 So.2d 633, 635 (Ala. 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 966 (1990) (Maddox, J., concurring specially). Jackson contends that he is denied due process by the mechanism of the judicial override. His contention should fail in view of the authority of the appellate courts of this State to consider independently the jury recommendation against death and to determine whether death is the appropriate penalty in a given case . It is our duty, upon proper application for certiorari review, to reinstate a jury recommendation against the death penalty where the trial court's override is grounded in "passion , prejudice , or any other arbitrary

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factor"; or where there has been a defective weighing of the aggravating circumstances and the mitigating circumstances ; or where the penalty is disproportionately severe under all of the circumstances . 13A- 5-53(b). The trial court is to be commended for its explanation of the reasons for its override of the jury's advisory verdict . A trial court is required by statute to enter " specific written findings" concerning the existence or nonexistence of the aggravating circumstances and the mitigating circumstances . 13A-5-47( d). To facilitate the appellate courts of this State in the discharge of their statutory duty to review the propriety of a sentence of death, we should require the trial court to enter specific written findings concerning the propriety of the decision to impose the death penalty over a jury's recommendation of a sentence of life imprisonment without parole . In making such a determination, the trial court should be mindful of the aforementioned criteria applicable to a determination at the appellate level as to the propriety of the sentence of death ; namely , whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor ; whether an independent weighing of the aggravating circumstances and the mitigating circumstances at the appellate level would indicate that death was the proper sentence ; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering *993 both the crime and the defendant. See 13A-5-53(b). The trial court here aptly observed that it did not have any guidance from this Court as to how it should treat the jury's recommendation in the process of weighing the aggravating circumstances and the mitigating circumstances. I believe this Court should offer additional guidance to the trial court as to the effect of a jury's recommendation of a sentence of life imprisonment without parole. The Legislature has provided specific aggravating circumstances at 13A-5-49, preceded by the phrase, "Aggravating circumstances shall be the following." Such introductory language does not leave room for augmentation of the list through judicial decision-making. In contrast, the legislative catalog of mitigating circumstances is preceded by the phrase, "Mitigating circumstances shall include, but not be limited to, the following." 13A-5-51 (emphasis added). So as to guide the trial court in

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determining the effect of a jury' s recommendation of life imprisonment without parole , this Court should hold that such a recommendation is to be treated as a mitigating circumstance . The weight to be given that mitigating circumstance should depend upon the strength of the factual basis for the recommendation based upon information known to the jury-- such as conflicting evidence concerning the identity of the "triggerman" or a recommendation made by the victim 's family for leniency--subject to the jury's recommendation being undermined based upon information known only to the trial court and not to the jury. Pursuant to 13A-5-53(b), Ala.Code 1975, we must weigh the aggravating circumstances and the mitigating circumstances in this case to determine if death is the appropriate sentence . Burdette, a passenger in the victim's vehicle, stated that he saw a long black ".38 or maybe .357" when Jackson and his codefendants began shooting at the victim and Burdette . Both Burdette and the medical examiner expressed the opinion that the person with the .38 pistol or the .357 handgun fired the bullet that killed the victim . That person would have been Barnes, since Barnes and Rudolph both stated that Barnes was the person who was armed with a .357 handgun at the time of the shooting . Based on this evidence, the jury could have believed that Barnes, not Jackson, fired the fatal shot , giving the jury a basis for its recommendation of a sentence of life imprisonment without parole. The trial court found two statutory aggravating circumstances: (1) that the capital offense was committed while Jackson was engaged in a robbery or an attempted robbery, and (2) that the capital offense was committed by a person under a sentence of imprisonment. The trial court found one statutory mitigating circumstance: that Jackson was 18 years old at the time of the crime. It is evident by the trial court 's sentencing order that it weighed the aggravating circumstances and the mitigating circumstance. However, in a close case like this one, where the evidence suggests a possibility that Jackson might not have fired the fatal shot, treating the jury's recommendation of life imprisonment without parole as a mitigating circumstance changes the overall balance of the weighing process. Independently weighing the aggravating circumstances and the mitigating circumstances and

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(Cite as : 836 So. 2d 979) treating the jury' s recommendation as a mitigating Circumstance , I would conclude that the trial court's override of the jury' s recommended sentence and its consequent imposition of the sentence of death were improper under the circumstances of this case. See Ala.Code 1975, 13A-5- 53(a) and (b). Given Jackson' s age at the time of the offense and the fact that the evidence pointed to a codefendant *994. as the "triggerman ," the jury' s unanimous recommendation of a sentence of life imprisonment without parole tips the scales - in favor of following the jury' s recommendation and in sentencing Jackson to life imprisonment without parole. In this way, we can abide by the Legislature's command that a jury recommendation is not binding ( 13A-5-47(e)); at the same time, I do not understand the Legislature to have commanded that the jury recommendation be given no weight whatsoever. We therefore can give the jury's recommendation some weight in the sentencing process as a mitigating circumstance . I do not suggest that a trial court can never override a jury's recommendation of a life- imprisonment sentence, but in order to do so, the aggravating circumstances must be sufficiently egregious to support a sentence of death in light of all mitigating circumstances, including a jury' s recommendation of life imprisonment without parole . Therefore, I respectfully dissent from the judgment.

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L
IN THE ALABAMA COURT OF CRIMINAL AP NO. CK U Vol(

FILED
is

OCT 2 0 2004
CLERK ALA COURT CRIMINAL APPEALS

EX PARTE STATE OF ALABAMA. IN RE :

SHONELLE ANDRE JACKSON, PETITIONER,

V s.

STATE OF ALABAMA, RESPONDENT.

EXHIBITS
FOR THE PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE TRACY S. MCCOOEY , CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT Volume II of II

TROY KING Attorney General

And
James R. Houts 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

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

SHONELLE ANDRE JACKSON, Petitioner, v. STATE OF ALABAMA, Respondent.

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.

Case No: CC-97-2300.60

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 Rule based upon any ground:

(2) which was raised or addressed at trial; or

(3) which could have been but was not raised at trial . . .; 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.
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 . 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.

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 164168) Ground V : THE CLAIM THAT THE DEATH SENTENCE IN THIS CASE IS DISPROPORTIONATE IN VIOLATION OF JACKSON'S Ala. R . Crim. P. STATE AND FEDERAL RIGHTS . 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). (paragraphs 182-185)

' 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 188191)

I

Ground X:

THE CLAIM THAT THE STATE'S USE OF ITS PEREMPTORY CHALLENGES DISCRIMINATED ON THE

^'i
Ala. R . Crim. P. BASIS OF RACE AND GENDER . ,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 GRANTED THE CAUSE. Ala. (paragraphs THE TRIAL COURT IMPROPERLY STATE ' S CHALLENGES OF JURORS FOR R. Crim. P. 32.2(a)(3) and (4). 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 205206) 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. 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 be served 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. Respectfully submitted,

a A.4

er y McIntire )T Assistant Attorney General

CERTIFICATE OF SERVICE

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,

first class, postage prepaid and addressed as follows:

Bryan A. Stevenson Angela L. Setzer Equal Justice Initiative of Alabama 122 Commerce Street

Montgomery, Al 36104

J emy McIntire Assistant Attorney General

ADDRESS OF COUNSEL: Office of the Attorney General Capital Litigation Division Alabama State House 11 South Union Street Montgomery, AL 36130-0152 (334) 353-4014

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY ,

ALABAMA

SHONELLE ANDRE JACKSON, } Petitioner, v. STATE OF ALABAMA, )

Case No: CC-97-2300.60

Respondent.
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

Comes now the State of Alabama, the Respondent in the above-styled cause, and moves this Honorable Court to summarily dismiss those claims in Jackson's amended Rule 32

petition that fail to meet the requirements of Alabama Rules of Criminal Procedure 32.3 and 32.6(b). In support of this motion, the State of Alabama submits the following:
1. Rule 32.3 of the Alabama Rules of Criminal Procedure provides , in relevant part , that "[t]he

petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to
entitle the petitioner to relief." Ala. R. Crim. P. 32.3

(emphasis added).
2. Rule 32.6(b) of the Alabama Rules of Criminal

Procedure provides:

The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant 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 Assistance Of Counsel In Part Because Of The Insufficient Funds Provided For Court-Appointed

'

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 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").
Ground I ( A) (2) (c) : The claim that trial counsel was ineffective for failing to procure the 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

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.").
Ground I (A) (2) (d) : The claim that trial counsel was ineffective for failing to procure the 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

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 ineffective for failing to procure the 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, 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 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) (3) (b) : The claim that trial counsel was ineffective for failing to challenge Jackson ' s underlying convictions. (Paragraph 41) Ala . R. Crim . P. 32.3 and 32.6(b).

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

court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that
no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to

file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading
requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.;

therefore, it is due to be summarily dismissed by the

Court. Ala. R. Crim. P. 32.7(d). Ground I ( A)(3)(e): The claim that trial counsel was ineffective for failing to remove certain jurors and for failing to secure a jury expert . ( Paragraphs 46-47) Ala. R. Crim . P. 32.3 and 32.6(b). 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 voir dire. ("If the court determines that the petition is not sufficiently
specific, or is precluded, or fails to state a claim, or

that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to
file an amended 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)(3)(h ): The claim that trial counsel was ineffective for failing to adequately investigate and cross - examine certain witnesses . ( Paragraphs 52-55 ) Ala. R. Crim . P. 32.3 and 32.6(b).

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 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) (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 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.").
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. Ala. R . Crim. P. ( Paragraphs 140-146 ) 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,

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).

10

Ground III :

THE CLAIM THAT THE STATE WITHHELD FAVORABLE EVIDENCE FOR THE DEFENSE THUSE VIOLATING JACKSON ' S FEDERAL AND STATE Ala. R. RIGHTS . ( Paragraphs 164-168 ) 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

summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d). 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.").

CONCLUSION

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

Procedure provides that claims that fail to meet the burden

of pleading may be dismissed without an evidentiary hearing. Ala. R. Crim. P. 32.7(d). Specifically, Rule
32.7(d) states, in relevant part, the following:

If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that 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 (Ala. Crim. App. 1998).

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).'

Respectfully submitted,

erem McIntire Assistant Attorney General

2Any failure by the State to include a claim(s) subject to dismissal under Ala. R. Crim. P. 32.3 and 32.6(b) is not meant as a waiver of that ground.

13

CERTIFICATE OF SERVICE

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, first class, postage prepaid and addressed as follows:

Bryan A. Stevenson Angela L. Setzer Equal Justice Initiative of Alabama 122 Commerce Street

Montgomery, Al 36104

rem W. McIntire Assistant Attorney General

ADDRESS OF COUNSEL: Office of the Attorney General Capital Litigation Division Alabama State House 11 South Union Street Montgomery, AL 36130-0152 (334) 353-4014

14

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

SHONELLE ANDRE JACKSON, Petitioner, v. STATE OF ALABAMA, Respondent.

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)

Case No : CC-97-2300.60

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

for which there are no material issues of law or fact. In support of this motion, the State of Alabama submits the following: 1. Rule 32.7(d) of the Alabama Rules of Criminal

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) following:

states, in relevant part, the

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 v. State, 724 So. 2d 87, 89 (Ala. Crim. App. 1998).
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 finding of no prejudice under the test for ineffective 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

(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,

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.
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 . ( 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 Ala. R. Jackson . ( Paragraphs 18-27 ) 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 Ineffective For Failing To Procure 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 Ineffective For Failing To Procure The Assistance of an Investigator

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 Ineffective For Failing To Timely File a Youthful Offender 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 Ala. R. Crim. P. 32.7(d)

56-57)

Ground I (A) (3) (j) : The Claim That Counsel Was Ineffective For Failing To Challenge The State's
' Expert Ballistic Evidence. (paragraphs 58) Ala. R. Crim. P. 32.7(d)

i-I

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

'

P.

32.7(d)

Ground I (A) (3) (n ) : The Claim That Counsel Was Ineffective For Failing To Give An Adequate Closing Ala. R. Statement. (paragraphs 62-64 ) 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

i^

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 . Ground I P. 32.7(d)

( 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)

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.'

Respectfully submitted,

b,e,WzVV?;2,,-Lerem McIntire Assistant Attorney General

'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.

CERTIFICATE OF SERVICE

I hereby certify that on this

gjl, 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,

first class, postage prepaid and addressed as follows:

Bryan A. Stevenson Angela L. Setzer Equal Justice Initiative of Alabama 122 Commerce Street

Montgomery, Al 36104

ere W. McIntire Assistant Attorney General

ADDRESS OF COUNSEL: Office of the Attorney General Capital Litigation Division Alabama State House 11 South Union Street Montgomery , AL 36130-0152 (334) 353-4014

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 INSTITUTIONAL RECORDS, 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. 349,363364 (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 o rder 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 suffered prejudice from the deficient performance of his counsel unless he could show the trial court that mitigating evidence (which he has 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 the evidence would have recommended life imprisonment without parole.
1)

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

1
I 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. 11 4

1 1 1 I 1 1 1 1 1 1

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 Department of Corrections including, but not limited to Correctional Medical Services, Baptist Health Care, Corning Clinical Laboratories, and Cahaba Imaging P.C. 11. Mr. Jackson's Rule 32 petition contains allegations that his trial counsel were 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

1
1 1J

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.

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

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

it
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

1 1 1 1
F1

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 of mental 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.

1 1 1 1

1
1

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 p artment 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 Sheri Department Records ff 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 D lice Department and/or the Montgomery County Sheriff's Department.

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 h ealth 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
11

13

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.
Res ctfully Submitted, 6/

BryA. Stevenson Angela L . Setzer Equal Justice Initiative of Alabama 122 Commerce Streeet Montgomery, AL 36104 (334) 269-1803 Dated : April 1, 2004 Counselfor Mr. Jackson

14

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 House 11 South Union Street Montgomery , AL 36130

A ela L. Setzer

15

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA

SHONELLE ANDRE JACKSON, Petitioner,

* *

V. STATE OF ALABAMA,

Case No. 97-2300.60 * * Respondent. *

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THE POSSESSION 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

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA * SHONELLE ANDRE JACKSON, Petitioner, * V. STATE OF ALABAMA, Respondent. * *

Case No. 97-2300.60

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THE POSSESSION 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.

DONE and ORDERED this the day of

2004.

Tracy McCooey, Circuit Judge

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA * SHONELLE ANDRE JACKSON, Petitioner, * V. STATE OF ALABAMA, Respondent. *

Case No. 97-2300.60

* * *

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THE POSSESSION OF MONTGOMERY CITY JAIL

Upon consideration of Petitioner's Motion for Discovery of Institutional Records in 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.

DONE and ORDERED this the day of

2004.

Tracy McCooey, Circuit Judge

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA * SHONELLE ANDRE JACKSON, 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 inspection and copying to counsel for Petitioner or their designated agents 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. DONE and ORDERED this the day of 2004.

Tracy McCooey, Circuit Judge

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA

* SHONELLE ANDRE JACKSON, * Petitioner, * V. STATE OF ALABAMA, * Respondent. * Case No. 97-2300.60 *

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THE POSSESSION OF ALABAMA BOARD OF PARDONS AND PAROLES

Upon consideration of Petitioner's Motion for Discovery of Institutional Records in

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.

DONE and ORDERED this the day of

2004.

Tracy McCooey, Circuit Judge

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA * SHONELLE ANDRE JACKSON, Petitioner, * V. STATE OF ALABAMA, Respondent.

Case No. 97-2300.60

* * *

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THE POSSESSION OF THE ALABAMA DEPARTMENT OF HUMAN RESOURCES

Upon consideration of Petitioner's Motion for Discovery of Institutional Records in 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.

Tracy McCooey, Circuit Judge

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA * SHONELLE ANDRE JACKSON, * Petitioner, * V. * STATE OF ALABAMA, Respondent. * * Case No. 97-2300.60

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THE POSSESSION 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
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.

DONE and ORDERED this the day of

2004.

Tracy McCooey, Circuit Judge

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA * SHONELLE ANDRE JACKSON, Petitioner, * V. STATE OF ALABAMA,

Case No. 97-2300.60

*

Respondent.

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THE POSSESSION OF MONTGOMERY COUNTY SHERIFF'S 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 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.

DONE and ORDERED this the day of

2004.

Tracy McCooey, Circuit Judge

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA

SHONELLE ANDRE JACKSON, * Petitioner,

* V. * STATE OF ALABAMA,

Case No. CC-97-2300.60

* Respondent. *

MOTION FOR DISCOVERY OF PROSECUTION FILES, 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.

1 1 1 1 1

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, 363364 (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.

11 ^

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).

1
11

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

Mr. Moore's name is spelled inconsistently throughout relevant court and 1 investigative documents. References in this discovery motion to Lefraich Moore include, but are not limited to, LeFreck Moore, LeFreick Moore, Chu, and/or Chew.

3
11

Andre Jackson, Antonio Dion Barnes, Christopher Rudolph and Eric Orlando Williams . 7. ' (a) Specifically, this request includes, but is not limited to the following: each document relating to any communications or statements (written or oral), memoranda, summaries or audio or video recordings of such communications or 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 whom the communications or statements were made) including but not limited to communications or statements relevant to: 1) the death and alleged robbery of LeFraich 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 physical condition 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 beginning when the police were first called on April 25, 1997 and continuing until the conclusion of Dr. Lauridson's post-mortem examination of April 29, 1997; All names and addresses of any person with knowledge of any fact or circumstance surrounding the death and alleged robbery of Lefraich Moore; All documents to, from and between law enforcement officers and the State of Alabama's investigative staff regarding the death and alleged robbery of Lefraich Moore; Any documents in the State ' s possession or available to the State that are exculpatory or favorable to Shonelle Andre Jackson on the issue of guilt or penalty regarding any element of the offense of capital murder related to the death and/or the alleged robbery of Lefraich Moore, including, but not limited to: 1) all evidence provided by or relating to any and all prosecution witnesses that were called during the course of Mr. Jackson's trial; 2) any and all information including letters, records of telephone calls, memoranda, and any other records or documents disclosing bias or prejudice or prejudgement by the citizens of Montgomery County, Alabama, against Shonelle Andre Jackson and the identity of persons making statements expressing such views; 3) any and all information in any form whatsoever, that derives from any person that is exculpatory with respect to Shonelle Andre Jackson having committed the robbery and/or murder of LeFraich Moore, including but not limited to statements made by any prosecution witness who testified at Mr. Jackson's 4

' '

'

(b)

(c)

(d) '

'

1 1 1
f'.

trial and any information obtained from any individuals that may have information relating to LaFraich Moore's death and Mr. Jackson's prosecution for his death; 4) any and all information that would support a showing that this offense was committed while Shonelle Andre Jackson was under the influence of extreme mental or emotional disturbance; 5) any and all information relevant to the capacity of Shonelle Andre Jackson to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, especially any such information that would support a finding that Mr. Jackson's capacity was substantially impaired; 6) all information that supports the existence of statutory and/or nonstatutory mitigating circumstances; 7) any evidence offered by the State at Mr. Jackson's trial in support of any alleged aggravation 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 the possession of the prosecution, law enforcement personnel, any other State agency, or prosecution witness that relate to this case, Shonelle Andre Jackson, Eric Orlando Williams, Antonio Dion Barnes, or Christopher Rudolph in any fashion, or may have impeached or otherwise contradicted, conflicted or challenged the testimony of the State witnesses in this case, or any other individual that may have information relating to LeFraich Moore's death and Mr. 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 the death of LeFraich Moore, including but not limited to: 1) each document relating to the crime scene investigation in the area of Estate Avenue and West Boulevard, Montgomery, Alabama; 2) each document relating to any postmortem scientific physical test(s), examination(s) or experiment(s) conducted in connection with the death of LeFraich Moore, including but not limited to tests conducted by the Alabama Department of Forensic Sciences, the Montgomery County Sheriffs office, the Montgomery Fire Department, and the Montgomery Police Department; (g) All documents relating to Shonelle Andre Jackson, including: 1) all juvenile and adult 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 any document relating to any plea negotiations between 5

1 1

I
J

Shonelle Andre Jackson and the State; 5) all records of any detention or court authority; 6) all records that the prosecution or any law enforcement official has submitted to any professional personnel for examination or analysis in connection with this case; 7) all institutional records of any kind including but not limited to those prepared at Kilby Correctional Facility, Montgomery County Detention Facility, and any other institutional record that relate to Shonelle Andre Jackson; 8) all psychiatric documents relating to the conducting or results of any testing. examinations or interviews of Shonelle Andre Jackson, including but not limited to reports by the Alabama Department of Youth Services, the Alabama Department of Corrections or any other agency, and any other psychiatric, psychological or mental health records concerning Shonelle Andre Jackson and 9) all documents relating to any tests of any kind conducted on Shonelle Andre Jackson, including but not limited to 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 Orlando Williams, Christopher Rudolph and Antonio Dion Barnes, including: 1) all juvenile and adult 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 any document relating to any plea negotiations between any of these three individuals, Eric Orlando Williams, Christopher Rudolph and Antonio Dion Barnes, and the State; 5) all records of any detention or court authority; 6) all records that the prosecution or any law enforcement official has submitted to any professional personnel for examination or analysis in connection with this case; 7) all institutional records of any kind including but not limited to those maintained by Staton Correctional Facility, Montgomery County Detention Facility, and any other institutional record that relate to Eric Orlando Williams, Christopher Rudolph and Antonio Dion Barnes; 8) all psychiatric documents relating to the conducting or results of any testing, examinations or interviews of Eric Orlando Williams, Christopher Rudolph and Antonio Dion Barnes , including but not limited to reports by the Alabama Department of Youth Services, the Alabama Department of Corrections or any other agency, and any other psychiatric, psychological or mental health records concerning Eric Orlando Williams, Christopher Rudolph and Antonio Dion Barnes, and 9) all documents relating to any tests of any kind conducted on Eric Orlando Williams, Christopher Rudolph, and Antonio Dion Barnes, including but not limited to any tests conducted on samples of the individuals' hair, blood, 6

1 1 1

saliva, semen, or any other corporeal sample; (i) All documents relating to any State witnesses at Shonelle Andre Jackson's trial, including: 1) all juvenile detention, jail, prison, parole, probation, and pre-sentence 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 any detention or court authority; 6) all records of any prosecuting authority; 7) all psychiatric, psychological, and mental health records; 8) all documents relating to any lie detector test taken by any State witness; 9) all other records and reports; (j) Each document relating to the State's use of peremptory challenges during petitioner's trial, including but not limited to any information gathered about the jury venirepersons; (k) Each document relating to the use of racial criteria in the jury selection process in criminal cases prosecuted in Montgomery County, Alabama, including but not limited to charges of racial discrimination in jury selection in cases prosecuted 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 and non-legal, pertaining to Shonelle Andre Jackson, Eric Orlando Williams, Christopher Rudolph and Antonio Dion Barnes maintained and kept by the Montgomery 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 action on 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

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 have repeatedly recognized that the prosecutor has a duty to disclose relevant evidence to the defendant. The prosecution's failure to do so "casts the prosecutor in the role of an architect of 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 must disclose favorable information to defense); Giles v. Ma land, 386 U.S. 66 (1967) (remand ' necessary where prosecution violated due process by suppressing favorable evidence and knowingly using perjured testimony); Davis v. Alaska, 415 U.S. 308 (1974) (defendant must ' be afforded opportunity to impeach credibility of prosecution witness through crossexamination); Giglio v. United States, 405 U.S. 150 (1972) (prosecution must disclose to defense impeachment information, including agreements with state witnesses); United States v. Bagley, 473 U.S. 667 (1985) (prosecution must disclose impeachment evidence); Napue v. 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 mandates disclosure of favorable evidence); Ex parte Womack, 541 So -,2,d 47 (Ala. 1988) (prosecution must reveal evidence tending to exculpate accused or impeach veracity of state's witnesses); ' Ala. R. Crim. Pro. 16 (prosecution must disclose exculpatory information).

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.g Martin v. State, 839 So. 2d App. 2001) (failure of a prosecutor to . 9 S 665 (Ala. Cram. ' 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 petition was procedural y arre pursuant to Rules 32.2(a)(3), (5) of the Alabama Rules of Criminal Procedure. For the reasons articulated in Mr. Jackson's motion for reconsideration, filed contemporaneously with this document, etitioner urges this Court to reconsider its ruling on this claim. 9

indicates that additional discoverable material exists: (a) In Gerard Burdette's April 26, 1997 statement to Corporal D. Cunningham, he stated that he thought an individual named P.J. was responsible for the victim's death. Notably, Mr. Burdette did not reference P.J.'s real name nor did he mention the name Jay. However, while interviewing witness Lacrema Moore on April 26, 1997, Detective A.J. Signore suggested that P.J.'s real name is Patrick Stinson. He also suggested that someone named Jay hung around with an individual named "Big Leon." None of the offense reports or statements provided by the District Attorney's office explain how Detective Signore learned P.J.'s real name or obtained information referring to an individual named 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 the scene 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 drawn by Ms. Moss for Detective Signore. (c) As indicated in a April 28, 1997 offense report, after witnessing three AfricanAmerican men on his property, A.C. Porterfield contacted Deputy Smithy at the Montgomery County Sheriff's Department. Mr. Jackson's trial counsel never received any information from the Montgomery County Sheriffs Department relating to this complaint. (d) In his statement to law enforcement officials, Antonio Barnes recalled returning with Shonelle Jackson, and an individual named Roderick Crawford (a.k.a. Fido), to Old Hayneville Road the day after the incident. Law enforcement officials interviewed many individuals named by the codefendants as people they came in contact with after the alleged incident. However, no offense reports relating to Roderick Crawford or interviews with Mr. 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 received the results of any tests or examinations that were performed on the inside of these automobiles. It is unreasonable to believe that the State would not have conducted any tests of the interior of either car in order to ascertain whether or 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 the required evidence to Mr. Jackson. Mr. Jackson's co-defendants understood there to be a verbal agreement by which they would receive lesser sentences in exchange for their testimony against Shonelle Jackson. Nonetheless, statements to at least one co-defendant's trial judge and statements made by that court indicate that the co-defendants' sentencing was deeply intertwined with the State's having already secured a conviction and sentence against Shonelle Jackson. Evidence of these deals between the co-defendants and the prosecution 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 with her, they asked her to accompany them to her former residence. No evidence or information obtained during these meetings was provided to Mr. Jackson's trial 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 Mont gomery 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 misconduct claim lacked specificity, pursuant to Rule 32.6(b) of the Alabama Rules of Criminal Procedure, and that it was procedurally barred pursuant to Rules 32.2(a)(3), (5), of the Alabama Rules of Criminal Procedure . As Mr. Jackson explains in his motion for reconsideration , 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 to contain the names of the jurors that he believes to have engaged in misconduct. He urges this Court to reconsider the procedural bars in this case, consistent with Alabama law recognizing that 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

McDonough Power Eq uipment 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's ineffectiveness 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 Petition that Present no Materrial Issues of Fact or Law Under Rule 32.7(d) of the Alabama Rules of 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 ruling in 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 wouldproved, ) that, entitle him to relief." 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 Alabama 122 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 House 1 I South Union Street Montgomery, AL 36130

A
A ela L . Setzer

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1
MONTGOMERY COUNTY CIRCUIT COURT FIFTEENTH JUDICIAL CIRCUIT STATE OF ALABAMA,

Plaintiff, *

*
No. CC-97-2300.60 *

v.

' 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
(a) Each document relating to any communications or statements (written or oral), ' memoranda, summaries or audio or video recordings of such communications or 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 whom the communications or statements were made) including but not limited to communications or statements relevant to: 1) the death and alleged robbery of LeFraich 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 physical condition 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 the conclusion of Dr. Lauridson's post-mortem examination of April 29, 1997; ' (b) All names and addresses of any person with knowledge of any fact or circumstance surrounding the death and alleged robbery of Lefraich Moore; (c) All documents to, from and between law enforcement officers and the State of Alabama'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 are exculpatory or favorable to Shonelle Andre Jackson on the issue of guilt or penalty regarding any element of the offense of capital murder related to the death and/or the alleged robbery of Lefraich Moore, including, but not limited to: 1) all evidence provided by or relating to any and all prosecution witnesses that were called during the course of Mr. Jackson's trial; 2) any and all information including letters, records of telephone calls, memoranda, and any other records or documents disclosing bias or prejudice or prejudgement by the citizens of Montgomery County, Alabama, against Shonelle Andre Jackson and the identity of persons making statements expressing such views; 3) any and all information in any form whatsoever, that derives from any person that is exculpatory with respect to Shonelle Andre Jackson having committed the robbery and/or murder of LeFraich Moore, including but not limited to statements made by any prosecution witness who testified at Mr. Jackson's ' trial and any infonnation obtained from any individuals that may have information relating to LaFraich Moore's death and Mr. Jackson's prosecution for his death; 4) any and all infonnation that would support a showing that this offense was committed while Shonelle Andre Jackson was under the influence

I 1

of extreme mental or emotional disturbance ; 5) any and all information relevant to the capacity of Shonelle Andre Jackson to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, especially any such information that would support a finding that Mr. Jackson's capacity was substantially impaired; 6) all information that supports the existence of statutory and/or nonstatutory mitigating circumstances; 7) any evidence offered by the State at Mr . Jackson ' s trial in support of any alleged aggravation 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 the possession of the prosecution , law enforcement personnel , any other State agency, or prosecution witness that relate to this case , Shonelle Andre Jackson, Eric Orlando Williams , Antonio Dion Barnes , or Christopher Rudolph in any fashion, or may have impeached or otherwise contradicted, conflicted or challenged the testimony of the State witnesses in this case, or any other individual that may have information relating to LeFraich Moore ' s death and Mr. 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 the death of LeFraich Moore, including but not limited to: 1) each document relating to the crime scene investigation in the area of Estate Avenue and West Boulevard, Montgomery, Alabama; 2) each document relating to any postmortem scientific physical test(s), examination(s) or experiment(s) conducted in connection with the death of LeFraich Moore, including but not limited to tests conducted by the Alabama Department of Forensic Sciences, the Montgomery County Sheriffs office, the Montgomery Fire Department, and the Montgomery Police Department; (g) All documents relating to Shonelle Andre Jackson , including: 1) all juvenile and adult 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 any document relating to any plea negotiations between Shonelle Andre Jackson and the State; 5) all records of any detention or court authority ; 6) all records that the prosecution or any law enforcement official has submitted to any professional personnel for examination or analysis in connection with this case ; 7) all institutional records of any kind including but 3

not limited to those prepared at Kilby Correctional Facility, Montgomery County Detention Facility, and any other institutional record that relate to Shonelle Andre Jackson; 8) all psychiatric documents relating to the conducting or results of any testing, examinations or interviews of Shonelle Andre Jackson, including but not limited to reports by the Alabama Department of Youth Services, the Alabama Department of Corrections or any other agency, and any other psychiatric, psychological or mental health records concerning Shonelle Andre Jackson and 9) all documents relating to any tests of any kind conducted on Shonelle Andre Jackson, including but not limited to 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 Orlando Williams, Christopher Rudolph and Antonio Dion Barnes, including: 1) all juvenile and adult 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 any document relating to any plea negotiations between any of these three individuals, Eric Orlando Williams, Christopher Rudolph and Antonio Dion Barnes, and the State; 5) all records of any detention or court authority; 6) all records that the prosecution or any law enforcement official has submitted to any professional personnel for examination or analysis in connection with this case; 7) all institutional records of any kind including but not limited to those maintained by Staton Correctional Facility, Montgomery County Detention Facility, and any other institutional record that relate to Eric Orlando Williams, Christopher Rudolph and Antonio Dion Barnes; 8) all psychiatric documents relating to the conducting or results of any testing, examinations or interviews of Eric Orlando Williams, Christopher Rudolph and Antonio Dion Barnes, including but not limited to reports by the Alabama Department of Youth Services, the Alabama Department of Corrections or any other agency, and any other psychiatric, psychological or mental health records concerning Eric Orlando Williams, Christopher Rudolph and Antonio Dion Barnes, and 9) all documents relating to any tests of any kind conducted on Eric Orlando Williams, Christopher Rudolph, and Antonio Dion Barnes, including but not limited 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's trial, including : 1) all juvenile detention, jail, prison, parole, probation, and 4

I ; 2 pre-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 plea negotiations between any State witness and the State; 5) all records of any ' detention or court authority; 6) all records of any prosecuting authority; 7) all psychiatric, psychological, and mental health records; 8) all documents relating to any lie detector test taken by any State witness; 9) all other records and reports; Each document relating to the State's use of peremptory challenges during petitioner's trial, including but not limited to any information gathered about the 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 but not limited to charges of racial discrimination in jury selection in cases prosecuted 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 and non-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.

s s TRACY S. McCOOEY CIRCUIT JUDGE

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

SHONELLE ANDRE JACKSON, Petitioner, v.

CC--1997- 2300.60

STATE OF ALABAMA, Respondent.

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

Comes now the State of Alabama, the Respondent in the

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 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 169174)

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 ' 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

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

r
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

furnish a list identifying each such document". discovery motion at 3-4)

(Jackson's

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.

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

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 , ' imprisoned , Louis Taylor , was either chronically or was simply absent

using drugs and alcohol ,

' when he was young .

Jackson ' s discovery request is unduly Jackson has other available means

burdensome and broad . '

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 , fact , ' or even through his father , Louis Taylor. In

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 1995 . R. 574 ) Because such information has

'

1994

and

already been presented and/or may be presented through ' Jackson , his family members , or his father , Jackson has

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. Jackson asks for any and all records pertaining to 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.

Jackson asks for any and all records pertaining to

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.

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 Andre Jackson ' s Institutional Records In The Possession Of The Alabama Board of Pardons and Paroles.

Jackson asks for any and all records pertaining to

Louis Wendell Taylor and/or himself generated or maintained

by the Alabama Board of Pardons and Paroles. 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 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

1
I 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 Andre Jackson ' s Institutional Records In The Possession Of The Montgomery Police Department.

Jackson asks for any and all records pertaining to Louis Wendell Taylor and/or himself generated or maintained 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 Andre Jackson ' s Institutional Records In The Possession Of The. Montgomery County Sheriff's Department.

11

Jackson asks for any and all records pertaining to

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 I

12

r1
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.
WHEREFORE, the State respectfully requests that this Court grant Jackson's discovery motion only to the extent

provided for in the State's proposed discovery orders. Respectfully submitted,

Troy King Attorney General

Jeremy W. McIntire Assistant Attorney General Counsel of Record * State of Alabama Office of the Attorney General 11 South Union Street Montgomery, AL 36130-0152 (334) 353-4014 *

May 28, 2004 I

13

CERTIFICATE OF SERVICE

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 Equal Justice Initiative of Alabama 122 Commerce Street Montgomery, AL 36104

Jeremy W. McIntire Assistant Attorney General Counsel of Record *

ADDRESS OF COUNSEL:

Office of the Attorney General Capital Litigation Division Alabama State House 11 South Union Street Montgomery, AL 36130 (334) 353-4014 *

14

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

SHONELLE ANDRE JACKSON, Petitioner, v. STATE OF ALABAMA, Respondent.

ORDER GRANTING DISCOVERY FROM THE MONTGOMERY CITY JAIL

CC-1997-2300.60

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

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA SHONELLE ANDRE JACKSON, 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.

DONE this day of

2004.

16

ABAMA IN THE CIRCUIT COURT OF MONTGOMERY COUNTY , AL SHONELLE ANDRE JACKSON,

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

Upon consideration of Jackson's motion for discovery and the State's response, it is now ordered that:

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.

DONE this day of

2004.

Tracy S. McCooey Circuit Judge

cc: Bryan A. Stevenson, Esq. Angela L. Setzer, Esq. Jeremy W. McIntire, Esq.

18

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY , ALABAMA

SHONELLE ANDRE JACKSON, Petitioner, v. STATE OF ALABAMA, Respondent.

ORDER GRANTING DISCOVERY OF INSTITUTIONAL RECORDS IN THE POSSESSION OF THE MONTGOMERY POLICE DEPARTMENT

CC-1997-2300.60

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 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. DONE this day of 2004.

Tracy S. McCooey Circuit Judge

cc: Bryan A. Stevenson, Esq. Angela L. Setzer, Esq. Jeremy W. Mclntire, Esq.

19

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY ,

ALABAMA

SHONELLE ANDRE JACKSON, Petitioner, v. STATE OF ALABAMA, Respondent.

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

CC-1997- 2300.60

Comes now the State of Alabama, the Respondent in the 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 169174)

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 P ostconviction 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

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

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 anydocument 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

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

it
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 and Christopher Rudolph for requests Barnes, Eric Orlando Williams,

Moore 's murder. Jackson also

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 34) The State consents to this request in part, but objects

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

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 codefendants 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

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 1112) 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.

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 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 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 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[.]"). 24. 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

from discovery under the Work Product Rule.

13

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."').

25. Finally, Jackson has requested that this Court

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,

1 I

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

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

15

was necessary or exactly what Payne believed the information he sought to discover would reveal[.]"). 27. 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 to the case. It appears that this motion is merely a `fishing expedition."').
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.)
WHEREFORE, the State respectfully requests that this Court grant Jackson's discovery motion only to the extent

provided for in the State's proposed discovery orders. Respectfully submitted,

Troy King Attorney General

Jeremy W. McIntire Assistant Attorney General Counsel of Record *

State of Alabama
Office of the Attorney General 11 South Union Street Montgomery, 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

CERTIFICATE OF SERVICE

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

Equal Justice Initiative of Alabama 122 Commerce Street Montgomery, AL 36104

Jeremy W. McIntire Assistant Attorney General Counsel of Record *

ADDRESS OF COUNSEL:
Office of the Attorney General Capital Litigation Division Alabama State House

11 South Union Street Montgomery, AL 36130 (334) 353-4014 *

18

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

SHONELLE ANDRE JACKSON, Petitioner, v. STATE OF ALABAMA, Respondent.

ORDER GRANTING JACKSON DISCOVERY FROM THE MONTGOMERY COUNTY DISTRICT ATTORNEY

CC-1997--2300.60

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

DONE

this

day

of

2004.

Tracy S. McCooey Circuit Judge

cc: Bryan A. Stevenson, Esq. Angela L. Setzer, Esq. Jeremy W. McIntire, Esq.

20

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, SHONELLE ANDRE JACKSON, Petitioner, v.

ALABAMA

CC-1997-2300.60

STATE OF ALABAMA, Respondent.

ORDER GRANTING DISCOVERY FROM THE MONTGOMERY COUNTY DETENTION FACILITY

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 County Detention Facility records is GRANTED. The Montgomery County Detention 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.

DONE

this

day

of

2004.

Tracy S. McCooey Circuit Judge

cc: Bryan A. Stevenson, Esq. Angela L. Setzer, Esq. Jeremy W. McIntire, Esq.

21

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY ,

ALABAMA

SHONELLE ANDRE JACKSON, 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

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.

DONE

this

day

of

2004.

22

I I.
Tracy S. McCooey Circuit Judge

cc: Bryan A. Stevenson, Esq. Angela L. Setzer, Esq. Jeremy W. McIntire, Esq.

ii
11 23

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA SHONELLE ANDRE JACKSON, Petitioner, v.

CC-1997-2300.60

STATE OF ALABAMA, Respondent.

ORDER GRANTING DISCOVERY FROM THE ALABAMA DEPARTMENT OF YOUTH SERVICES

Upon consideration of Jackson's motion for discovery

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

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.

24

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

SHONELLE ANDRE JACKSON, Petitioner, v. STATE OF ALABAMA, Respondent.

ORDER GRANTING DISCOVERY FROM THE ALABAMA DEPARTMENT OF CORRECTIONS

CC-1997-2300.60

Upon consideration of Jackson's motion for discovery and the State's response, it is now ordered that: 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

cc: Bryan A. Stevenson, Esq. Angela L. Setzer, Esq. Jeremy W. McIntire, Esq.

25

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT MONTGOMERY COUNTY, ALABAMA * SHONELLE ANDRE JACKSON, 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,

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.")

1
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 order is necessary for these items , which were admitted at Mr. Jackson's trial and made part of the record , is because these items are in the possession of the Montgomery County Clerk's office. The State ' s opposition to permitting Mr. Jackson access to these items should not be indulged by this Court. 4

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, Brady claims are cognizable in Rule 32 proceedings, and therefore Mr. Jackson's claim cannot be summarily dismissed by this Court. Petitioners Response, at 15-17. 5

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 prior prosecutions of Mr. Jackson is necessary for Mr. Jackson to prove that his trial counsel were ineffective for failing to challenge the underlying convictions which formed the basis for the aggravating circumstance against Mr. Jackson that "the capital offense was committed by a person under sentence of imprisonment." Amended Petition, at 16. 'The State additionally objects to Mr. Jackson receiving this piece of evidence. State's Response, at 13. 6

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, I 755 So. 2d at 854. Without these files, Mr. Jackson will be unable to prove his allegations that the District Attorney suppressed this evidence, and will be prevented from succeeding 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, I Mr. Jackson will be unable to prove his claim. See McMillian v. State. 616 So. 2d 933, 948

I
7