Bruce Antonio Wilkerson v. State of Alabama
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Rel: 03/25/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2010-2011 CR-08-1779 Bruce Antonio Wilkerson v. S t a t e o f Alabama Appeal from Lee C i r c u i t (CC-02-1097.60) On R e t u r n WELCH, P r e s i d i n g Bruce denial o f h i s Rule conviction t o Remand Judge. Antonio postconviction Court Wilkerson appeals 3 2 , A l a . R. relief, i n f o r m u r d e r made which capital the circuit Crim. P., he attacked court's petition f o r his 2004 b e c a u s e i t was c o m m i t t e d CR-08-1779 during a robbery imprisonment and without his resulting sentence a f f i r m e d W i l k e r s o n ' s c o n v i c t i o n and sentence memorandum i s s u e d on May CR-04-0531), 978 So. 2d 19, 2006. 72 The A l a b a m a Supreme C o u r t , a f t e r review, quashed the w r i t , of judgment App. v. S t a t e 2006) (table). i n i t i a l l y granting certiorari and t h i s Court issued a certificate filed claims his petition of ineffective on June 16, 2008, assistance raising of counsel. A u g u s t 2 0 , 2 0 0 8 , he f i l e d an amendment t o h i s p e t i t i o n an ineffective additional After claim receiving a depositions, and circuit denied By order circuit (No. on A u g u s t 3 1 , 2 0 0 7 . Wilkerson numerous Court i n an u n p u b l i s h e d Wilkerson ( A l a .Crim. life This the p o s s i b i l i t y o f parole. of court dated of response from conducting an Wilkerson's September assistance the State, evidentiary petition 17, 2010, t h i s c o u r t had e r r e d i n f i n d i n g of Court raising counsel. accepting hearing, on J u l y found On 20, the 2009. 1 that the one o f W i l k e r s o n ' s claims The c i r c u i t c o u r t d i d n o t a d d r e s s i n i t s o r d e r t h e c l a i m r a i s e d i n W i l k e r s o n ' s A u g u s t 20, 2008, amendment. However, Wilkerson also does not pursue that claim on appeal. T h e r e f o r e , t h a t c l a i m i s deemed a b a n d o n e d a n d w i l l n o t be c o n s i d e r e d by t h i s Court. S e e , e . g . , B r o w n l e e v . S t a t e , 666 S o . 2 d 9 1 , 93 ( A l a . C r i m . A p p . 1 995) ("We w i l l n o t r e v i e w i s s u e s n o t l i s t e d and argued i n b r i e f . " ) . 1 2 CR-08-1779 of ineffective 32.2(a)(3) remanded written and this (a)(5) case findings court complied order assistance on (See for of fact circuit of ineffective assistance He also of finding some o f h i s c l a i m s t o be in 32.2(a) issue II (Issue Court I remand Wilkerson's conjunction counsel For this appeal 2 brief). to issue Rule we specific The issued a majority circuit supplemental with the claims to which they o f the claims raised in his petition. circuit erred barred by for court various brief) the provisions and circuit in requests court to regarding those claims address these arguments in assistance of We better gleaned and from ineffective (Issue apply. a of understanding both from the of the Rule 32 Wilkerson's ineffective- note the f o l l o w i n g p r o c e d u r a l record from Wilkerson's direct proceedings. T h i s c o u r t may t a k e j u d i c i a l H u l l v . S t a t e , 607 So. 2 d 369 2 See the case a s s i s t a n c e - o f - c o u n s e l c l a i m s , we history, by o p i n i o n ) , and claim. i n Wilkerson's s p e c i f i c findings of fact in the counsel that this that appeal appeal that barred 2010. r e a s s e r t s on Rule be court i n s t r u c t i o n s and 29, on to of this regarding Wilkerson argues counsel P a r t I.B. the w i t h our September of 3 n o t i c e o f i t s own records. ( A l a . C r i m . App. 1992). CR-08-1779 On September 11, outstanding juvenile the of murder earlier, on 2002, pick-up Donald at the time, his father, 9, his juvenile participation September represent and as right 12, 2002, law retainer, detention and and then facility The f o l l o w i n g detention Wilkerson. advised hearing After Wilkerson denying murder. Johnny Jason hired where with he was then a former held, on to police officer worked a t Radney's met Johnny Wilkerson being at at and with law firm obtained the a juvenile- held. which discussions with to cooperate and Radney Tom m o r n i n g , on S e p t e m b e r 1 3 , 2 0 0 2 , a was invoked ceased, attorney Jackson, who 3 Johnny questioning investigator, met years present (hereinafter at the time clerk 17 was days "Johnny") the Miranda two t o have counsel, Wilkerson. a law student a to who about W i l k e r s o n gave a s t a t e m e n t a f t e r Johnny a r r i v e d , any occurred an right Wilkerson in had on questioned Wilkerson, 2002. and, Wilkerson's arrested a n d was that invoked Johnny order was Williams September old Wilkerson the Radney juvenile- represented prosecutor, the p o l i c e Radney i n the murder S e e M i r a n d a v . A r i z o n a , 384 U.S. 436 ( 1 9 6 6 ) , a n d f o r m e r R u l e 1 1 , A l a . R. J u v . P., i n e f f e c t a t t h e t i m e o f W i l k e r s o n ' s s t a t e m e n t , b u t r e s c i n d e d e f f e c t i v e J a n u a r y 1, 2 0 0 9 , i n l i g h t o f ยง 12-15-202, A l a . Code 1975. 3 4 CR-08-1779 investigation. by police, T h a t a f t e r n o o n , W i l k e r s o n was a g a i n with participation Wilkerson regarding In Radney present, i n the murder. for continually Jackson four engaged Wilkerson's confessed continued during which negotiations to representing time with the he January 2003, Johnny r e t a i n e d a t t o r n e y Tim D a v i s , filed motion notice direct motion a of t o w i t h d r a w on January 23, 2003. 5, 2 0 0 3 , d u r i n g w h i c h D a v i s appearance appeal, "for request, broke represented The four hearing and the Wilkerson 11, limited in Davis after moved t o w i t h d r a w . December 5 (Record Radney's Davis's and a t t o r n e y Charles and G i l l e n w a t e r s hearing. 2004 On On December at trial Davis 27, 2004, which for November sentenced, 2004, 16, of at Davis was A negotiations 2003, h i s November Wilkerson and filed purpose granted Plea September Wilkerson. through court 2003. and h i s s e n t e n c i n g days on trial court appointed to represent murder Gillenwaters a 19.) down, the t r i a l Gillenwaters 2004, C. t o w i t h d r a w on F e b r u a r y apparently capital was prosecutor representing [Wilkerson] i n entering a guilty plea." on his case. h e a r i n g was h e l d on F e b r u a r y his Radney months, in and questioned Davis 22, and after and CR-08-1779 Gillenwaters issued the an oral trial for a new trial, order g r a n t i n g the motions motion f o r a new trial. March 3, In The On December a p p e a l was trial and 29, court denying 2004, the to represent Wilkerson certified as c o m p l e t e on 2005. our conviction as r e c o r d on the to withdraw court appointed Jeremy Armstrong on a p p e a l . trial o r a l l y moved unpublished and sentence, memorandum this Court affirming set out the Wilkerson's evidence follows: "The S t a t e ' s e v i d e n c e a t t r i a l t e n d e d t o s h o w t h a t s h o r t l y a f t e r 10:00 p.m. on S e p t e m b e r 9, 2 0 0 2 , R u s t y Dean h e a r d a c a r a t t h e O p e l i k a F l o r a l shop. He w e n t o u t s i d e a n d saw a b e i g e o r b r o w n , o l d e r - m o d e l C h e v r o l e t C a p r i c e p u l l o u t , t u r n r i g h t , and s t o p . He t h e n h e a r d a g u n s h o t a n d saw a b l a c k m a l e r u n t o t h e c a r and jump i n t o t h e b a c k p a s s e n g e r s e a t . The d r i v e r , a b l a c k m a l e , d r o v e away, and Dean c a l l e d the p o l i c e . A neighbor, V i r g i n i a Honnell, t o l d i n v e s t i g a t i n g o f f i c e r s t h a t she h e a r d a ' l o u d p o p ' and v o i c e s a l i t t l e after 10:00 p.m. She went o u t s i d e a n d saw two y o u n g m a l e s d r e s s e d i n d a r k s h i r t s r u n t o a p a r k e d , o l d e r - m o d e l c a r . The t a l l e r one g o t i n t o t h e c a r , a n d t h e c a r b e g a n t o p u l l a w a y . The s h o r t e r one t h e n g o t i n t o t h e b a c k o f t h e c a r , and t h e c a r d r o v e away. H o n n e l l s a i d that the shorter male appeared t o be h o l d i n g h i s mouth. O f f i c e r s checked the neighborhood and f o u n d a man l y i n g u n c o n s c i o u s i n the open doorway of a n e a r b y r e s i d e n c e . T h e man, D o n a l d W i l l i a m s , was pronounced d e a d b y p a r a m e d i c s who r e p o r t e d to the scene. An a u t o p s y s u b s e q u e n t l y r e v e a l e d t h a t W i l l i a m s had d i e d from a gunshot wound to the chest. Officers t e s t i f i e d t h a t t h e v i c t i m h a d two s m a l l c u t s on h i s 6 at CR-08-1779 f i n g e r s a n d t h a t two b u t t o n s a p p e a r e d t o be m i s s i n g from h i s s h i r t . O f f i c e r s f o u n d one p l a s t i c b u t t o n on t h e f r o n t p o r c h a n d a n o t h e r u n d e r n e a t h W i l l i a m s ' s body. A search of the residence revealed an o v e r t u r n e d speaker i n s i d e the f r o n t door, a f l o w e r p o t l y i n g n e x t t o t h e s p e a k e r , and a b u l l e t fragment on t h e d e n f l o o r . O f f i c e r s a l s o found approximately $ 4 0 0 . 0 0 i n c a s h i n p l a i n v i e w i n one o f t h e r o o m s and a p p r o x i m a t e l y $600.00 i n c a s h i n t h e v i c t i m ' s pocket. Outside the house, they found a b l o o d spot on t h e f r o n t s t e p s a n d a s p e n t s h e l l c a s i n g on t h e ground to the r i g h t of the f r o n t door. DNA analysis revealed t h a t t h e b l o o d on the front porch was Wilkerson's. H i s b l o o d a l s o was found i n s i d e h i s c a r a n d on a w h i t e T - s h i r t i n a g a r b a g e c a n a t h i s home. P o l i c e a l s o found a semi-automatic r i f l e and bullets at Wilkerson's house. Wilkerson was apprehended a f t e r p o l i c e asked school o f f i c i a l s to r e p o r t a n y s t u d e n t s who h a d s u f f e r e d an i n j u r y . The principal reported Wilkerson because he missed s c h o o l on S e p t e m b e r 9 a n d he h a d an i n j u r y t o h i s mouth. W i l k e r s o n ' s l i p was s t i t c h e d when he was apprehended. "The S t a t e a l s o o f f e r e d e v i d e n c e o f an o f f e n s e that had occurred i n Auburn earlier the same evening. M a r i l y n Swyers t e s t i f i e d t h a t at about 9:30 p.m., two y o u n g b l a c k m a l e s o p e n e d t h e f r o n t d o o r o f h e r house and e n t e r e d t h e l i v i n g room. The s h o r t e r one d i d n o t s a y o r do a n y t h i n g , b u t the t a l l e r one b e g a n w a v i n g a gun a r o u n d a n d t h r e a t e n i n g t o k i l l h e r h u s b a n d , who was s l e e p i n g i n a c h a i r . When h e r h u s b a n d a w o k e a n d b e g a n b a c k i n g a w a y , t h e gunman s h o t h i m i n t h e c h e s t . Both intruders f l e d ; and the Swyers's daughter, who had been i n t h e bedroom, c a l l e d the p o l i c e . Mrs. Swyers i d e n t i f i e d W i l k e r s o n i n c o u r t as t h e s h o r t e r i n t r u d e r , and she i d e n t i f i e d Lamar C h a r l e s R o b i n s o n from photographs as t h e taller intruder. She also identified a purple shirt found at Wilkerson's residence as s i m i l a r t o t h e one w o r n b y t h e s h o r t e r i n t r u d e r . Police subsequently i n t e r v i e w e d Robinson at a 7 CR-08-1779 correctional facility i n North C a r o l i n a , and he denied p a r t i c i p a t i n g i n e i t h e r crime. Before he could be returned to Alabama, Robinson hanged himself. "On September 11, 2002, police picked up W i l k e r s o n ; a n d he g a v e t h e m a s t a t e m e n t . Wilkerson said that on September 9, he stayed home from school, sick. T h a t n i g h t , he v i s i t e d a friend, Lamarcus H a r r i s . He f e l l a s he was l e a v i n g H a r r i s ' s r e s i d e n c e s h o r t l y a f t e r 10:00 p.m. and c u t h i s l i p . The n e x t m o r n i n g , h i s m o t h e r t o o k h i m t o t h e d o c t o r to have i t s t i t c h e d . Police subsequently discovered discrepancies in Wilkerson's statement. On S e p t e m b e r 13, t h e y i n t e r v i e w e d h i m a s e c o n d time; a n d W i l k e r s o n a d m i t t e d t h a t he h a d p a r t i c i p a t e d i n b o t h o f t h e s h o o t i n g s on S e p t e m b e r 9. Wilkerson s a i d t h a t a t a b o u t 4:30 p.m., he d r o v e t o t h e home of a f r i e n d , L a r e g i s F e r r e l l , i n h i s mother's c a r . He, L a r e g i s , a n d a man named ' L a m a r ' w e n t t o visit a f r i e n d and t h e n t a l k e d i n L a r e g i s ' s y a r d . Lamar s a i d t h a t he n e e d e d m o n e y , a n d t h e t h r e e o f t h e m agreed to commit a r o b b e r y . Wilkerson took his m o t h e r ' s c a r home a n d r e t u r n e d i n h i s own brown, f o u r - d o o r 1977 C h e v r o l e t I m p a l a . The t h r e e o f t h e m then drove to Auburn, where Lamar s e l e c t e d a house to ' r o b . ' W i l k e r s o n s a i d t h a t L a m a r was a r m e d w i t h a r i f l e a n d some b u l l e t s , w h i c h he p l a c e d i n t o t h e glove compartment. Lamar and W i l k e r s o n a p p r o a c h e d the house, l e a v i n g L a r e g i s i n the c a r . They entered t h e h o u s e a n d f o u n d a woman s i t t i n g a t a d e s k a n d a man sleeping in a chair. Lamar began y e l l i n g and a s k i n g f o r money, a n d t h e man awoke and b e g a n t o c r a w l away. L a m a r f i r e d one s h o t a t t h e man, and Wilkerson fled. Lamar f o l l o w e d him t o t h e c a r , and they drove back to O p e l i k a . A f t e r a b r i e f stop at Laregis's home, t h e y d r o v e t o a h o u s e n e a r the recreation center to attempt another robbery. W i l k e r s o n k n o c k e d on t h e d o o r w h i l e L a m a r r e m a i n e d at t h e b o t t o m o f t h e s t a i r s w i t h t h e gun. An o l d e r , w h i t e male o p e n e d t h e d o o r and t h e n s u d d e n l y h i t W i l k e r s o n i n the mouth w i t h h i s f i s t . Lamar s h o t 8 CR-08-1779 t h e man, and W i l k e r s o n and Lamar r a n b a c k t o t h e car. They drove to a d i r t road near Wilkerson's house and w a i t e d u n t i l h i s m o t h e r l e f t f o r work. W i l k e r s o n t h e n p u t t h e p u r p l e s h i r t he was wearing i n t o h i s d r e s s e r a n d t h e b l o o d y T - s h i r t he h a d u s e d on h i s l i p i n t o t h e t r a s h . He a l s o h i d t h e g u n and the b u l l e t s from the g l o v e compartment. The next m o r n i n g , he t o l d h i s m o t h e r t h a t he h a d c u t h i s l i p f a l l i n g o f f a f r i e n d ' s p o r c h , and she t o o k him t o have h i s l i p s t i t c h e d . A t t h e end of h i s s t a t e m e n t , W i l k e r s o n a d m i t t e d t h a t t h e gun u s e d i n t h e s h o o t i n g was h i s , n o t L a m a r ' s , a n d t h a t he h a d b r o u g h t i t w i t h him, l o a d e d , when he r e t u r n e d to L a r e g i s ' s residence with his car." In Strickland v. Washington, 466 U.S. t h e U n i t e d S t a t e s Supreme C o u r t articulated m u s t be counsel 668, satisfied assistance. his A counsel's deficient to defendant performance the first that his counsel's whether the of prong the was of the counsel's 1987). burden test, representation the that that that defense. and (1) "To (2) petitioner fell that ineffective showing p r e j u d i c e d the below an must show objective The performance i n q u i r y must a s s i s t a n c e was reasonable, considering a l l "'This Ex parte court Lawley, must surrounding the case 9 512 avoid e v a l u a t e the performance of c o u n s e l . circumstances of (1984), criteria rendered deficient actually reasonableness. circumstances." (Ala. has performance meet standard show t h a t two 687 We at So. using 2d 1370, be 1372 " h i n d s i g h t " to must e v a l u a t e a l l t h e the time of counsel's CR-08-1779 actions before ineffective 979 2d determining assistance.'" ( A l a . C r i m . App. 1999) 6, 9 ( A l a . Crim. App. whether Lawhorn v. S t a t e , (quoting 1992)). strong presumption that wide range reasonable Strickland, Court of 466 U.S. at counsel counsel's 689. 756 S o . 2 d 9 7 1 , H a l l f o r d v. S t a t e , "A court conduct must falls professional As rendered the United 629 S o . indulge within the assistance." States Supreme explained: " J u d i c i a l s c r u t i n y o f c o u n s e l ' s p e r f o r m a n c e must be h i g h l y d e f e r e n t i a l . I t i s a l l too tempting f o r a defendant to second-guess counsel's assistance a f t e r c o n v i c t i o n or a d v e r s e s e n t e n c e , and i t i s a l l too easy f o r a c o u r t , examining c o u n s e l ' s defense a f t e r i t has p r o v e d u n s u c c e s s f u l , to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney p e r f o r m a n c e r e q u i r e s t h a t e v e r y e f f o r t b e made t o e l i m i n a t e the d i s t o r t i n g e f f e c t s of h i n d s i g h t , to reconstruct the circumstances of counsel's c h a l l e n g e d c o n d u c t , and t o e v a l u a t e t h e c o n d u c t from counsel's perspective at the time. Because of the d i f f i c u l t i e s inherent i n making the e v a l u a t i o n , a court must indulge a strong presumption that c o u n s e l ' s conduct f a l l s w i t h i n the wide range of reasonable professional assistance; that i s , the d e f e n d a n t must overcome t h e p r e s u m p t i o n t h a t , u n d e r the c i r c u m s t a n c e s , t h e c h a l l e n g e d a c t i o n 'might be considered sound trial strategy.' There are c o u n t l e s s ways t o p r o v i d e effective assistance i n any given case. Even t h e b e s t c r i m i n a l d e f e n s e attorneys would not defend a p a r t i c u l a r c l i e n t i n t h e same way." 10 a CR-08-1779 Strickland, 4 66 U.S. prejudice, "[t]he at the result of 466 probability the sufficient that U.S. Id. had the p r o c e e d i n g . " "The 466 3d 537 U.S. undermine enough at ( A l a . 2007). there would 2006), to defendant on a preponderance of the evidence." specifically D a v i s v. rests of the necessary facts "[W]hen the ... facts App. 32, S t a t e , 9 So. Ala. to are W i l s o n v. 1994). that p r o v i n g by of solely R. 9 Rule Crim. P., seeking "[t]he undisputed 11 the and A l a . R. petitioner a preponderance entitle S t a t e , 644 32.3, 3d So. to e s t a b l i s h h i s grounds f o r r e l i e f provides the burden show the outcome 32 p r o c e e d i n g Rule relief P., is a the r e v ' d on o t h e r g r o u n d s , "[I]n a (Ala. Crim. been 693. post-conviction 1328 a in p r o c e e d i n g , t h e b u r d e n of p r o o f i s upon t h e p e t i t i o n e r 1326, is have confidence f o r the not the S t a t e . " ( A l a . C r i m . App. prove reasonable p r o b a b i l i t y burden of p r o o f i n a Rule 519 that some c o n c e i v a b l e e f f e c t w i t h the p e t i t i o n e r , 514, show To for counsel's unprofessional "A to omitted). proceeding a t 694. " I t i s not the e r r o r s must t h a t , but different." outcome." (citations defendant reasonable p r o b a b i l i t y errors, 68 9 shall So. by 2d Crim. have of the evidence petitioner to relief." an appellate court is CR-08-1779 presented with a Rule proceeding 32 1097, 1098 facts in appeal when 1113, 601 ... denied With Wilkerson's Ex parte White, where proceeding facts, '[t]he Boyd App. 2003) in the App. mind, we 792 So. of State, 2d court review his in disputed circuit abused v. review are standard (quoting (Ala. Crim. in there and judge principles claims court's trial 1119 these that petition.'" the 1118, law, novo." the (Ala. Crim. 2d of "However, disputed i s whether 1122 So. i s de postconviction those he questions (Ala. 2001). a resolves pure on discretion 913 Elliott So. v. 2d State, 1992)). now address each of turn. I. In Claim I in his petition, pretrial-counsel Radney was waive and confess his rights murder w i t h o u t State counsel (Issue Davis presenting first V in and to having ineffective to i n place Wilkerson's a l l e g e d : (a) him to participation in the a p l e a agreement w i t h the his were for and (b) and his 12 family's trial for on t h e m o t i o n t o show t h a t h i s w a i v e r confession, that ineffective s u f f i c i e n t evidence at the h e a r i n g his That allowing brief); Gillenwaters suppress his confession rights, Wilkerson of h i s not to Miranda cooperation in CR-08-1779 assisting the police in finding the murder i n v o l u n t a r y and w o u l d n o t have o c c u r r e d b u t belief only t h a t Radney's i n v e s t i g a t o r , person allegedly present advised with Wilkerson Wilkerson's t h e m u r d e r w e a p o n , was (Issue Jason an I I I i n Wilkerson's weapon for their Jackson, when he f a m i l y to 4 were mistaken who was the confessed and who cooperate a t t o r n e y when, i n f a c t , regarding he was not. brief.) A. With Radney's meritless nor any from the (C. 501.) respect to Wilkerson's a s s i s t a n c e , the because "there c h a l l e n g e to circuit i s no court State before The court to allowing a client further found requirement professional responsibility pretrial-counsel the c l a i m to i n law obtain a t o make a or be ethics, concession statement." found: " A c c o r d i n g t o t h e t e s t i m o n y g i v e n b y Hon. Tom R a d n e y at h i s d e p o s i t i o n , h i s d e c i s i o n to a l l o w [ W i l k e r s o n ] t o make a s t a t e m e n t t o t h e p o l i c e was a s t r a t e g i c one b a s e d on t h e s e v e r i t y o f t h e c a s e a n d t h e f a c t s a s known b y Mr. R a d n e y a t t h e t i m e . The C o u r t f i n d s t h a t Mr. R a d n e y ' s a d v i c e t o [ W i l k e r s o n ] was b a s e d on t h e f a c t t h a t Mr. R a d n e y b e l i e v e d t h e S t a t e w o u l d s e e k t h e d e a t h p e n a l t y a g a i n s t h i s c l i e n t , and t h a t Mr. R a d n e y b e l i e v e d t h a t c o o p e r a t i o n w i t h t h e S t a t e As e x p l a i n e d more f u l l y b e l o w , t h e r e c o r d i n d i c a t e s t h a t Wilkerson's mother initially h i d the murder weapon from police, but later turned i t i n to the police based on Wilkerson's cooperation. 4 13 CR-08-1779 was i n t h e b e s t i n t e r e s t s o f h i s c l i e n t h a v i n g an a g r e e m e n t f i n a l i z e d . despite not "... S i n c e Mr. Radney b e l i e v e d t h a t t h e S t a t e w o u l d seek t h e d e a t h p e n a l t y upon o r i g i n a l l y t a k i n g t h e c a s e , h i s a d v i c e may h a v e b e e n q u i t e e f f e c t i v e i n a c h i e v i n g a s e n t e n c e o f l i f e w i t h o u t p a r o l e due to h i s c l i e n t ' s c o o p e r a t i o n . " (C. 501-02; footnote Initially, circuit court, the p e t i t i o n , was barred we of Rule Although petition, Crim. may 2007), assistance above, began before Wilkerson's raised and f o r the J o h n s o n v. this The of p r e t r i a l four trial trial State, claim months because time 989 So. counsel, i n January and s e n t e n c i n g and Rule on 32 ineffective i s a claim his arrest. 2003, claim 2d 1165 ( A l a . who and to assistance in a c l a i m of Davis the i t could at t r i a l r a i s e d here after counsel, that this of i n e f f e c t i v e first by i n i t s response (a)(5), i s not a t y p i c a l representing Wilkerson Wilkerson's argued found a r g u e s on a p p e a l , generally claims assistance f o r only not n o t , r a i s e d and a d d r e s s e d of counsel. ineffective Wilkerson be although correctly 32.2(a)(3) see, e.g., App. that, and c o r r e c t l y by counsel note the State h a v e b e e n , b u t was appeal. omitted.) of represented As noted Gillenwaters, some 22 months i n November 2004, and c o u l d have e a s i l y r a i s e d a c h a l l e n g e t o Radney's e f f e c t i v e n e s s 14 CR-08-1779 at any time during in t h e p o s t j u d g m e n t m o t i o n f o r a new t r i a l . of ineffective assistance presented t h o s e 22 m o n t h s , d u r i n g i n a new t r i a l for the f i r s t 675 S o . 2 d 8 6 3 , 866 claim that counsel practicable, first time Rule his even First, relevant at t r i a l , i f this court under that "[i]n Counsel the r i g h t includes the r i g h t So. ("Comprehended w i t h i n 3d ___ , ___ as soon as or not barred, i n this regard we Amendment Sixth agree f o r two i s b a s e d on to the United provides, prosecutions, Amendment of right to assistance of [Ms. C R - 0 5 - 1 4 4 3 , ( A l a . Crim. in the the Assistance February App. t h e S i x t h Amendment r i g h t t o 15 i n the i s meritless, to the e f f e c t i v e See, e.g., Lane v. S t a t e , 2 0 1 0 ] ___ were ... t o h a v e The ("Any i s applicable."). a l lcriminal f o r h i s defence." counsel Sixth Ingram, 32.2(d) appeal, t h e S i x t h Amendment The shall 5, enjoy claim be presented Ex p a r t e Rule direct the claim Wilkerson's accused counsel. on claim that Constitution. part, be was i n e f f e c t i v e m u s t b e r a i s e d right to counsel States See a l s o 32 p e t i t i o n , w h i c h e v e r the c i r c u i t reasons. (Ala. 1996). claim reasonably claim 32 p e t i t i o n . or even O n l y when a "cannot m o t i o n " may t h a t i n a Rule either Moreover, with of counsel the t r i a l , 2010) assistance CR-08-1779 of counsel i s the counsel."). does the However, not attach See, right cases cited cooperate the Sixth until effective Amendment adversarial and a t the time Wilkerson Wilkerson to unrelated juvenile Radney advised regarding pick-up counsel have begun. order. (1984), and clearly Wilkerson to the murder, no murder the had arrested he of to the record to had not been 501 U.S. 1 7 1 , 175 ( 1 9 9 1 ) right case, Rather, right 467 U.S. 180 confessed the murder. assistance proceedings In t h i s proceedings initiated. relation therein. that, adversarial was or charged i n custody See M c N e i l been v. in on an Wisconsin, (holding that "[t]he Sixth Amendment [ t o c o u n s e l ] ... i s o f f e n s e s p e c i f i c " a n d t h e a t t a c h m e n t the right which a attached to counsel prosecution Wilkerson's Sixth with Amendment right respect not have been d e n i e d t o t h e murder from Radney 387, 396 only commenced). advice U.S. applies has the 469 the e.g., U n i t e d S t a t e s v. Gouveia, establishes of to and c o n f e s s e d that right. n.7 (1985) 16 to to the offenses Therefore, counsel had when W i l k e r s o n because not yet received t o t h e m u r d e r , he See, e.g., E v i t t s ("[T]he right to upon could v. Lucey, effective CR-08-1779 assistance of counsel i s dependent on the right to counsel itself."). Second, right and even to counsel Wilkerson's that assuming Radney had a t t a c h e d d i d not render f o r the Rule he Wilkerson this advice was case at that 32 p r o c e e d i n g , the State believed the by Amendment the c i r c u i t assistance. with the police Radney said i t was " t h e w o r s t case also that testified that of the when had both [ h e ] had ever that and a n d w i t h J o h n n y a n d t h a t he knew w h a t He court At h i s of the facts he a n d J a c k s o n had a g a i n s t W i l k e r s o n . advice Radney t e s t i f i e d on h i s k n o w l e d g e Specifically, Sixth o f Radney's with ineffective advised Wilkerson to cooperate, with Wilkerson agree to cooperate based time. Wilkerson's a t the time c o n f e s s i o n , we deposition advised that he spoken evidence that he h a d , " and t h a t S t a t e " h a d s o much e v i d e n c e " t h a t he b e l i e v e d c o o p e r a t i o n Wilkerson Radney, who Wilkerson, details was had the best had testified two that course of action. strokes he could since not of h i s representation of Wilkerson testified at the p r e t r i a l hearing 17 (C.Supp. he represented remember a l l but that on W i l k e r s o n ' s 42.) the he h a d motion to CR-08-1779 suppress that the c o n f e s s i o n and testified t h a t he detention had hearing represented and the Wilkerson's that, cooperating prosecutor Wilkerson advised testified him and hearing, over years cooperate him the the worst 40 told case and and the the then a statement. from recommend Smith in his is Radney death making a case, 18 we 466 for to penalty. statement deficient Rogerson, law Wilkerson advising p e r s p e c t i v e at the v. and deposition, that the only spoke offer in which in this t h a t he prosecutor's did (quoting Strickland, circumstances penalty goal his 'from counsel's C i r . 1999) Radney seen i n p r a c t i c i n g not recommendation." for ever or unreasonable had exchange in he investigation. give save W i l k e r s o n decision hearing, deal Radney juvenile- he to to the had he that at as "Whether (8th at to seek the death not was strategic a murder about cooperate t h i s was the w i t h t h e p o l i c e and to at about agreed cooperated Wilkerson after i n the t h a t the p r o s e c u t o r i f Wilkerson the his testimony h e a r i n g on t h e m o t i o n t o s u p p r e s s , approached with s t o o d by hearing. At the p r e t r i a l said t h a t he i f is i t t i m e ' he a is made 171 F.3d 569, 572-73 U.S. at 689). Under cannot say that Radney's CR-08-1779 advice to Wilkerson to cooperate p o l i c e was u n r e a s o n a b l e and t o g i v e a statement to from Radney's p e r s p e c t i v e at the time. A t t h e t i m e R a d n e y g a v e t h e a d v i c e , W i l k e r s o n was e l i g i b l e f o r the death Williams. penalty for his role a l o t of contrary finding was, evidence against i n i t s order), the record to seek the death Donald involvement i n the (and t h e clearly an a g r e e m e n t i n p l a c e w i t h to cooperate. i n exchange f o r W i l k e r s o n ' s of Wilkerson. assertion in fact, murder and t e s t i f i e d to Wilkerson's Radney a d v i s e d W i l k e r s o n not the R a d n e y was a w a r e o f W i l k e r s o n ' s 5 m u r d e r w i t h two o t h e r i n d i v i d u a l s had in 6 that the State In addition, circuit shows court's that the prosecutor Radney t e s t i f i e d cooperation, the prosecutor penalty against Wilkerson. there when that, agreed Although A l t h o u g h W i l k e r s o n was 17 y e a r s o l d a t t h e t i m e o f t h e m u r d e r i n 2 0 0 2 , i t was n o t u n t i l 2 0 0 5 t h a t t h e U n i t e d S t a t e s S u p r e m e C o u r t h e l d i n R o p e r v . S i m m o n s , 5 4 3 U.S. 5 5 1 (2005), t h a t i t was u n c o n s t i t u t i o n a l t o s e n t e n c e t o d e a t h a d e f e n d a n t who was u n d e r t h e a g e o f 18 y e a r s a t t h e t i m e o f t h e c r i m e . 5 Wilkerson a r g u e s on a p p e a l t h a t a t the time Radney a d v i s e d h i m t o c o o p e r a t e , t h e S t a t e h a d l i t t l e t o no e v i d e n c e a g a i n s t him. H o w e v e r , no e v i d e n c e was p r e s e n t e d a t t h e R u l e 32 p r o c e e d i n g s to support Wilkerson's assertion. Rule 32 counsel d i d not question Radney regarding exactly what e v i d e n c e he knew t h e S t a t e h a d a g a i n s t W i l k e r s o n a t t h e t i m e . The o n l y t e s t i m o n y p r e s e n t e d i n t h i s r e g a r d was Radney's testimony t h a t t h e S t a t e " h a d s o much e v i d e n c e " against W i l k e r s o n t h a t he b e l i e v e d i t b e s t f o r W i l k e r s o n t o c o o p e r a t e . ( C . S u p p . 42.) 6 19 CR-08-1779 Radney and writing, the prosecutor Radney said [ h i m , ] and [he] appeal, R. 137.) parties adhered the police individuals penalty his word the for the the had i t . " in the murder to cooperate was State no the (Record by on evidence at direct cooperated with to two seek the trial. the a sound "Matters tactics and known t o h i m s t r a t e g y which e n d l e s s d e b a t e by e x p e r i e n c e d a d v o c a t e s can death 7 Rule anything other than strategic a time. matter are not grounds f o r postconviction relief." K n a p p e n b e r g e r v . S t a t e , 283 A r k . 213, (1984) 672 S.W.2d 54, 56 (holding that counsel i n e f f e c t i v e f o r a d v i s i n g p e t i t i o n e r to confess h i s The r e c o r d the prosecutor proceedings that of h i s agreement 7 32 advice at the be his other t h a t Radney's circumstances to both the not to that confessing naming did lied presumption the of t r i a l "never at h i s capital-murder presented overcome and the agreement record reflects investigation d e c i s i o n b a s e d on of reduce t o t h e a g r e e m e n t -- W i l k e r s o n i n v o l v e d , and to not prosecutor indeed, against Wilkerson proceedings him the And, Wilkerson to that took in participation did was 210, not involvement from W i l k e r s o n ' s d i r e c t appeal r e f l e c t s t h a t s t a t e d numerous t i m e s d u r i n g the pretrial he was n o t s e e k i n g t h e d e a t h p e n a l t y b e c a u s e w i t h Radney. 20 CR-08-1779 in the crime properly to the p o l i c e ) . denied this Therefore, the c i r c u i t court claim. B. With respect Gillenwaters's circuit the claim. court officers who September (Record In 2002, hearing, the c l a i m t o be b a r r e d by Rule suppression remanded issue this would claim Radney, petition, Wilkerson r e g a r d i n g w h a t he b e l i e v e d D a v i s 21 order by and order of on fact remand, have had relevant were called the law-enforcement on S e p t e m b e r 1 1 , 2 0 0 2 , and on m e r i t l e s s because of the statement Jackson, C. case findings t o be conceivably argument 32.2(a)(3) this specific hearing[,]" including on r e t u r n t o r e m a n d , his and with Wilkerson's interviewed Wilkerson 13, to not b a r r e d by Rule as t o t h e s u p p r e s s i o n the suppression Davis's In i t s supplemental found who this agreed to challenge the a b o v e , we court witnesses testimony We c l a i m was as n o t e d this at found (a)(5). circuit circuit "[a]ll at and and, regarding the assistance that this (a)(5), for Wilkerson's court i n i t i a l l y 32.2(a)(3) appeal to Wilkerson and himself. 4.) made numerous allegations and G i l l e n w a t e r s s h o u l d have CR-08-1779 d o n e , b u t d i d n o t d o , a t t h e h e a r i n g on t h e m o t i o n to suppress his confession. The c r u x o f a l l o f h i s a l l e g a t i o n s , was simply Davis not that presenting suppression believed belief hearing and appeal, evidence The was his and that ineffective argument Wilkerson waiver subsequent to had trial belief, his confession. r e c o r d from counsel We Miranda the presented the t r i a l the mistaken of h i s j u v e n i l e confession for mistakenly Wilkerson maintained i n h i spetition, that at an a t t o r n e y a n d t h a t t h i s Wilkerson's of h i s mistaken suppressed evidence to establish that Jackson involuntary. on sufficient rendered rights and G i l l e n w a t e r s were however, court murder a s he d o e s sufficient would have reflects that disagree. Wilkerson's direct appeal D a v i s a n d G i l l e n w a t e r s moved t o s u p p r e s s W i l k e r s o n ' s September 13, 2002, Wilkerson did not v o l u n t a r i l y not voluntarily Jackson, he confession, i n part, who Gillenwaters were misled confess was confessed, waive h i s juvenile because the only person was argued into on t h e g r o u n d an attorney. Miranda that rights he m i s t a k e n l y b e l i e v e d t h a t present with Wilkerson Specifically, Davis t h a t b o t h W i l k e r s o n and h i s e n t i r e believing that Jackson 22 and d i d was when and family an a t t o r n e y a n d CR-08-1779 t h a t , t h e r e f o r e , W i l k e r s o n was counsel his and right hearing his to ground of presented was an The failed the single assertion present to at the to the suppression in his petition any evidence to s u p p r e s s i o n , i . e . , no that support evidence Jackson responded not h e a r i n g , but asked him only "[D]id ever from Tom Radney a status was as an out Davis to and at the the and his no with 211.) Davis regarding courtroom during 23 (hereinafter hearing, but Wilkerson's as to to that Wilkerson and G i l l e n w a t e r s a l s o a t t e m p t e d suppression the Gillenwaters belief of a Wilkerson testimony cross-examination Wilkerson's mother, J u a n i t a W i l k e r s o n testify cooperate appeal, However, attorney, on receive or direct Wilkerson brought the p r o s e c u t o r . on negative. question Jackson's you statement (Record i n the on h i s suppression give authorities?" entered of waived that Wilkerson mistakenly believed that question: advice to voluntarily transcript to motion and and G i l l e n w a t e r s c a l l e d W i l k e r s o n t o t e s t i f y behalf effect knowingly to attorney. Davis did have Wilkerson's counsel was own not counsel. supports trial this could e f f e c t i v e l y denied his right to by call "Juanita"), because she had testimony in CR-08-1779 violation of the trial witnesses, the t r i a l court's court order of sequestration d i d not allow Juanita's testimony. D a v i s and G i l l e n w a t e r s then p r o f f e r e d t h a t J u a n i t a ' s would establish that " i t was represented f a m i l y t h a t J a s o n J a c k s o n was an a t t o r n e y " than one occasion Mr. Jackson On appeal, exclude Juanita's about J u a n i t a ' s Wilkerson because had him about to the court's family appeal, R. decision to t h i s Court noted that the p r o f f e r was n o t s u f f i c i e n t that any c l a i m the alleged family. Jackson that to indicate was an that attorney Wilkerson's misrepresentations Simply any e v i d e n c e believed However, ineffective an " [ o ] n more family made put, the record by from d i r e c t a p p e a l r e f l e c t s t h a t D a v i s and G i l l e n w a t e r s to present hearing, [Wilkerson's] ( R e c o r d on d i r e c t the t r i a l believed to Wilkerson's mistakenly Bugg, testimony i t d i d not include Wilkerson's failed testimony, mistakenly told Jackson i n upholding testimony and t h a t represented m e m b e r s t h a t he was a n a t t o r n e y . " 218.) to of we that do not assistance the State Jackson find of presented investigator with to establish was this an At the f o l l o w i n g the Opelika 24 Wilkerson attorney. failure counsel. that to the constitute suppression testimony. police Ben department, CR-08-1779 testified murder; t h a t he that suggesting during a he that noticed were schools Bugg contacted him an to injury Wilkerson, and Wilkerson to the received was looking the who After outstanding other evening police hit for that one had missed 11, Bugg order, told Wilkerson that case. the wanted to he 11th rights, that g r a d e and t h a t he could Bugg t h e n a d v i s e d and he Wilkerson was on the was a t o l d him read Wilkerson to school and and make 25 a had Bugg order for arrested brought him that, although juvenile pick-up suspect him an schools officers testified in t h a t he murder the about a murder had w r i t e and completed understood of h i s j u v e n i l e Miranda i n d i c a t e d t h a t he willing had the and the notified who of 2002, question Bugg s a i d t h a t W i l k e r s o n English. and Bugg that he pick-up of September arrested that that someone police initially and and Opelika was case someone information juvenile department. or hand i n v e s t i g a t i n g Wilkerson, Wilkerson he something males; testified h i s mouth. an left Williams's have about W i l k e r s o n , discovered on cut black further Williams's he young he scene of Donald may that that injury. a Williams struggle; perpetrators local responded to the understood his r i g h t s statement, but that he CR-08-1779 wanted h i s f a t h e r p r e s e n t . the police juvenile orally department. Miranda agreed a any to his form. then gave by ordered t o be t r a n s p o r t e d t o the Lee Center, still i n custody Hodge, Following a a on testified the that giving statement to executed obtained Wilkerson, facility, was of Juanita's Det. who Hodge presence he at Bugg, to i n order same a search to o b t a i n Wilkerson pick-up the time Hodge at was said en back testified house home, that at brought his Juanita's that father, but that time Johnny, no informed that was corresponding that Wilkerson 26 then department. were up, on juvenile Wilkerson, "teared being bullets, the weapon was Based including bullets police Wilkerson to the O p e l i k a p o l i c e he was order. Auburn to to Development warrant route a offer reduced County Youth the sign not statement, juvenile his Wilkerson did statement, of a t J u a n i t a ' s home, w h e r e W i l k e r s o n r e s i d e d . evidence Det. that detective corporal with department, his the and refused or t h r e a t e n W i l k e r s o n writing Lee but stated came t o Wilkerson presence, rights, Bugg Wilkerson Bugg. readvised i n Johnny's waive reward statement. Bugg rights waiver-of-rights Wilkerson B u g g c o n t a c t e d J o h n n y , who in the found at was and found. dropped CR-08-1779 his head and shook Wilkerson's (Record on right and and appeal, testified Johnny h i r e d him head" counsel to direct Radney R. at facility the day approached the prosecutor agreed to cooperated Radney with regarding hearing, such Wilkerson the discussion, not regarding in exchange Radney said t h a t he timing a l l questioning ceased. hearing about death he to in of the also with State's c o u l d not Johnny, not 27 and that he that but to that case, advised after Radney this testified directly seek specific testified Johnny murder the cooperation. remember he the cooperate. Wilkerson's i f he investigation. and said offer he juvenile-detention to jury Radney events, He the prosecutor Wilkerson by to the murder trial agreed for the at and relating only after to against Wilkerson rights a sent Jackson deal, advised rights the a penalty fully his that juvenile-detention hearing, cooperate. penalty specific invoked to speak w i t h W i l k e r s o n . police Wilkerson spoke Wilkerson as right to then suppression the the that well his he of Wilkerson's as as that seek stated Johnny 127.) the that not that t o r e p r e s e n t W i l k e r s o n he juvenile-detention said his death Although dates he with or the remembered CR-08-1779 that he h a d s p o k e n w i t h W i l k e r s o n juvenile-detention prosecutor; that about" the case had told hearing he at the j a i l before and W i l k e r s o n he ( r e c o r d on D i r e c t A p p e a l , Wilkerson as best could remember, with Wilkerson a plea. Radney s a i d t h a t , a t t h a t t i m e , not to seek the death police and t h a t he him about the p r o s e c u t o r ' s and give a statement. when he both spoke with Wilkerson agreed that presence access as to a Jackson offer office cooperated Wilkerson Wilkerson as could Jackson cellular explained be again and a d v i s e d h i m t o about be cooperating, to present both Radney during (Radney). 28 and also Wilkerson the with the and he told cooperate that spoke and Johnny present telephone. agreed testified interviewed without was from to discuss the prosecutor and Johnny, and t h a t W i l k e r s o n long would with straight Radney a l s o s p e c i f i c a l l y Wilkerson specifically went penalty i fWilkerson spoke plea Radney a l s o t e s t i f i e d to the prosecutor's then everything to get the best he speaking the R. 1 3 5 ) ; a n d t h a t he t h a t he w o u l d a t t e m p t he approached had " d i s c u s s e d a g r e e m e n t he c o u l d f r o m t h e p r o s e c u t o r . that, had t h e day o f t h e both Johnny's Wilkerson and said had that Johnny interview, to not he that him CR-08-1779 Jackson school testified and was investigator. with Jackson facility Wilkerson remember spoke center Johnny with by Radney. going to the could spoke w i t h W i l k e r s o n , detention center, that he the represent him, and that (Record on direct specifically direct with hearing his on R. 192.) September could but that said not when he told first Wilkerson Johnny, and Jackson he d i d not that be present when Wilkerson at that Johnny had Radney, Radney, he was investigator with "an appeal, R. 191.) and 13, 2002, also that 29 Brown Jackson " I am n o t a l a w y e r . " Jackson him met of testified to that d i d not (Record that he on was at the j u v e n i l e - d e t e n t i o n and t h a t Radney "had c o n v e r s a t i o n s " father, d i d not when present he b u t t h a t he c o u l d h a v e t o l d say to Wilkerson appeal, Radney firm be also he that retained firm." law report Wilkerson i f he Jackson the him t o the to to met w i t h J o h n n y b e f o r e testified an back telling Jackson sent as then recall that. Radney firm held to Jackson Johnny law i n law was b e i n g t o meet w i t h Wilkerson. that he was where W i l k e r s o n and asking 2002, Radney's testified J a c k s o n s a i d t h a t he f i r s t detention i n September employed juvenile-detention speak that Radney with Wilkerson advised Wilkerson and to CR-08-1779 cooperate 188.) i n the investigation. Jackson Wilkerson's testified department, did ever he out or recording 188.) and there of repeated to ever cooperate then present at legal (Record Tompkins, i n the the a corporal Det. understood waiver-of-rights form. any Jackson not direct and the on another Jackson tape have appeal, legal a R. advice, who advised investigations that she September 13, officer were telephone. Miranda rights, According 30 and from present. the i n t e r v i e w began, juvenile his with Wilkerson Hodge, cellular his on did nor "the department, t e s t i f i e d that before of Opelika Radney. department, Wilkerson he t h a t the person i n t e r v i e w of she, during counsel. and R. functioning, giving Wilkerson was s p o k e w i t h h i s f a t h e r by he not malfunction" during his testimony police indicated 2002, Wilkerson's a denied Tompkins t e s t i f i e d advised also 13, was confession. d u r i n g which Opelika t h a t he Direct Appeal, was September of the O p e l i k a p o l i c e participated 2002, was the Jennifer division he on recorded the c o n f e s s i o n but t h a t e i t h e r Jackson Wilkerson but f u n c t i o n as s a i d t h a t he ran that c o n f e s s i o n on police (Record Det. rights, Wilkerson the Cpl. Wilkerson Hodge then Wilkerson signed t o C p l . T o m p k i n s , when a Det. CR-08-1779 Hodge i n f o r m e d then Wilkerson p a u s e d and s a i d here." (Record Wilkerson statement n o r was that, at r e t a i n e d Radney only i n the Tompkins Williams in to his and she but and approximately or the an a anything later she r e a d breaks was statement i t was reduced murder murder that provided taken to to writing. and statement c o r r e c t and statement. 31 had present Cpl. statement of Donald of P e t e r Swyers statement to writing. lengthy, over throughout the Wilkerson, of the eight-hour time the w r i t t e n true were was oral t h a t t h e i n t e r v i e w was two h o u r s Tompkins, 11-page Wilkerson an the a C p l . Tompkins f o r Radney. gave in to C p l . f o r making coerced. statement, then participation meal the that According investigator Wilkerson that reducing the promised of of testified hours, interview agreed time 161.) i n O p e l i k a and t h e a t t e m p t e d Tompkins eight not R. threatened capacity that Auburn, Cpl. appeal, he a representative t o r e p r e s e n t him and t h a t J a c k s o n said confessing was he the t o h a v e an a t t o r n e y , " [ O ] b v i o u s l y , you have on d i r e c t Tompkins, said of h i s r i g h t and f r a m e was According to to Wilkerson signed that spent Cpl. and he e a c h page of CR-08-1779 C p l . Tompkins weapon, W i l k e r s o n police had mother's have had from Juanita police search been very turn t h e gun Juanita's had h i d d e n over exam Tompkins that 11, 2002, on hearing and She direct s h e was "must appeal, informed said that she R. that before was believed the first J o h n n y , who the p o l i c e , had p e r s u a d e d testified held that on and h i s p a r e n t s that during s h e was present September 13, were present the hearing also Radney as h i s a s s i s t a n t and s t a t e d year of law school Specifically, occurred of h i s h i s mother t h e gun i n t h e a t t i c hearing to Jackson in his last following that search c o n d u c t e d , t h e murder weapon home. with also Wilkerson yet. their because the had her to to the p o l i c e . juvenile-detention referred that on S e p t e m b e r 1 1 , 2 0 0 2 , b u t t h a t cooperative Cpl. was during (Record it." t h e i n t e r v i e w was b e i n g recovered the September took about the murder i n h i s statement t h e weapon on i t and when q u e s t i o n e d C p l . Tompkins a l s o t e s t i f i e d while said said found residence found 181.) that not testified during 2002. She during specifically that Jackson and had n o t t a k e n the bar C p l . Tompkins testified the j u v e n i l e - d e t e n t i o n " [ R a d n e y ] was talking j u d g e ] a n d he s a i d t h a t at the that hearing: with [the juvenile-court h i s c l i e n t was w i l l i n g t o 32 the CR-08-1779 c o o p e r a t e ; was g o i n g t o g i v e a s t a t e m e n t i n r e g a r d s t o t h e m u r d e r i n v e s t i g a t i o n t h a t was g o i n g on w i t h O p e l i k a , s o t h a t he was g o i n g t o h a v e h i s a s s i s t a n t J a s o n J a c k s o n who was a l s o p r e s e n t t h e r e s i t i n on t h e i n t e r v i e w ; s a i d he was p r a c t i c a l l y a l a w y e r ; was i n h i s l a s t y e a r o f l a w s c h o o l ; he just hadn't passed the bar y e t . " (Record on Wilkerson the direct was appeal, about enough t h a t she, still testified have ask an Jackson sitting hear that, specifically 224.) standing right comments could R. that the the the other attorney present Cpl. everybody" (Record on As and direct noted appeal, above, R. direct examination to cooperate examination, testimony, with the ever had small courtroom, Tompkins further did not waiving his right to judge did being p r e s e n t ] i s okay their head[s] yes." 226.) also behalf. receiving police, testified legal Wilkerson r e c e i v e d the 33 at In a d d i t i o n to a d v i c e from testified i n d i r e c t c o n t r a s t t o b o t h Radney's and t h a t he was judge nodded Wilkerson s u p p r e s s i o n h e a r i n g on h i s own on the d u r i n g h i s i n t e r v i e w , the "everybody that court about i f " t h i s [arrangement with Jackson with said courtroom s i d e of juvenile Wilkerson Tompkins t o R a d n e y when R a d n e y made comments. although question and on the next Cpl. advice on the denying Radney cross- Jackson's to cooperate from CR-08-1779 Jackson, Radney not Radney. Wilkerson also t e s t i f i e d t h a t he h a d a t t h e j u v e n i l e - d e t e n t i o n h e a r i n g , b u t he ever speaking t o Radney at juvenile-detention hearing, stating the jail At t h a t day t o speak w i t h the Juanita, Rule his 32 hearing, stepmother, " P a m e l a " ) , and h i s f a t h e r , claimed the in his petition jail was Wilkerson and Wilkerson Radney's law Jackson attorney admitted and hiding conducted later to f i n d i n g -- on S e p t e m b e r while with the murder i t before his Wilkerson the came t o mother, (hereinafter a l l o f whom he to t e s t i f y also t e s t i f i e d the weapon 11, 2002. Wilkerson was 34 law and t h a t of firm. her Juanita testified giving his with her that Juanita under Wilkerson's search no Wilkerson's that Johnny t o l d Radney's first statement, regarding at on h i s own had a l l the d e a l i n g s firm Juanita testified an of a t t h e h e a r i n g t h a t she had had representation. was called Johnny, to t e s t i f y , h e r e x - h u s b a n d , J o h n n y , who Radney day that only Jackson dealings with Jackson p r i o r to Wilkerson's it also him. Pamela Juanita testified that the s h o u l d have been c a l l e d suppression hearing. behalf. the denied Wilkerson he h a d e v e r h a d a n y c o n v e r s a t i o n s w i t h R a d n e y . denied met home bed was that she confession on CR-08-1779 September 13, 2 0 0 2 -- receiving a telephone Wilkerson was Jackson Juanita who she testified telling should give t h a t Johnny t o l d her hired she sat i n the car the two of them. she was Radney and did to not turn represent hear Pamela t e s t i f i e d , attorney she the because when J o h n n y that R a d n e y w o u l d " s e n d [ ] someone f r o m h i s Jackson but she hired with them and (R. that between believed Radney to told him 79.) Johnny Jackson J a c k s o n was testified was an attorney Radney had told office" meet w i t h (R. with law 16.) to him Johnny Jackson, f i r m , but at that the person t h a t the d i d not 32 because he Johnny admitted, Jackson Rule when he indicated that s t a t e t h a t he 35 was that he an when was meeting. thought hired had came t o that meet he Radney, someone o v e r Jackson however, f i r m " to came t o t h e hearing would "send and law that i t met Radney had that weapon weapon. conversation however, t h a t that the Wilkerson Johnny t o l d her Wilkerson, in after her the w i t h J o h n n y when he Johnny represent that and Johnny police that day an from to that the was weapon o v e r recommended Pamela t e s t i f i e d Jackson the call cooperating to the p o l i c e . was turned the he "with" attorney. from his meeting. first met Radney's (R. 16.) CR-08-1779 Johnny also Wilkerson meeting testified first met occurred Wilkerson's that with on he told Jackson September confession -- -- as 12, that a t t o r n e y s " Johnny had h i r e d . Wilkerson noted 2002, Jackson (R. 17.) police; that Wilkerson's Jackson cooperating Radney n o r J a c k s o n to cooperate when present, informed told a second and Jackson him told W i l k e r s o n have a c c e s s request was sometime either September 13, He Jackson also one of the him the consequences of and that Wilkerson Johnny t e s t i f i e d was Jackson he neither could going before could i f he be be n o t be present Wilkerson that d u r i n g t h e i n t e r v i e w , and Johnny or during that to J o h n n y a l s o s a i d t h a t he r e q u e s t e d to a telephone that cooperating with Wilkerson him that q u e s t i o n e d him about Jackson, that before Johnny t e s t i f i e d (R. 2 1 . ) asked this day h i m why " t h e y " w a n t e d he granted. 2002, above, "was was the p o l i c e ; that time, during the interview. that with with the p o l i c e . Jackson interviewed ever never t o l d before the Radney never spoke w i t h him about W i l k e r s o n ' s the just further Wilkerson's telephoned testified that confession him and on again a n d t h a t he a g a i n t o l d Wilkerson was " o n e o f [ W i l k e r s o n ' s ] a t t o r n e y s . " (R. 2 2 . ) stated that, at some 36 point, after speaking with CR-08-1779 Jackson over about the out that admitted Jackson Wilkerson. that he, on Wilkerson, attorney and to throughout was under the and that he not an attorney u n t i l Pamela, Wilkerson and at turn he attorney testified father's that at statements, he confessed Jackson told him to. He did not find out that J a c k s o n was was h i r e d to facie that an not wife with also his "It said Juanita he did hired his the ex-wife Davis Johnny Juanita juvenile-detention 8 Wilkerson based advised Johnny of was he H o w e v e r , on c r o s s - e x a m i n a t i o n , his a l l present hearing. police. t h a t J a c k s o n was represent were to weapon, representation impression to murder weapon Radney's find the has may to 32 hearing believed he Rule Jackson the also t e s t i f i e d represent long the murder only that, like not an that a attorney that, was an because Johnny, until he Davis him. involuntary confession the be been and law inadmissible, admitted into evidence, confession and the that is prima before burden a i s upon We note t h a t Johnny d i d not t e s t i f y at the Rule 32 h e a r i n g , as W i l k e r s o n c o n t e n d e d i n h i s p e t i t i o n , t h a t had he k n o w n J a c k s o n was n o t a n a t t o r n e y , he w o u l d h a v e o b j e c t e d t o Wilkerson's being interviewed with only Jackson present and w o u l d have o b j e c t e d t o W i l k e r s o n ' s b e i n g i n t e r v i e w e d w i t h o u t him (Johnny) b e i n g present. 8 37 CR-08-1779 the State Waldrop to establish voluntariness v. State, 859 So. 2d 1 1 3 8 , 1155 2000), aff'd, proper Miranda accused was i n f o r m e d o f h i s M i r a n d a statement" 859 So. 2d 1181 predicate, and t h a t waived h i s Miranda v. State, 987 considering 2d made the t o t a l i t y 1 1 5 6 , 11 64 rights depends on the facts the characteristics law-enforcement officials Foldi 861 S o . 2 d 4 1 4 , 4 2 1 must establish informed capability pressures State, knowingly that Jones App. 200 6 ) . knowingly, of each case, the ( A l a . Crim. o f h i s own f r e e t o do s o , a n d t h a t 'made will, hiswill App. 2002). the State an i n d e p e n d e n t that and he p o s s e s s e d t h e was n o t o v e r b o r n e and c i r c u m s t a n c e s s w i r l i n g around him.'" ( A l a . C r i m . App. 2004) 38 of the interrogation." [ o fthe confession], the defendant 914 S o . 2 d 8 8 3 , 8 9 8 - 9 9 of the accused, and t h e conduct i n conducting [the] voluntariness choice "the of the circumstances surrounding the of the interrogation, prove and i sv o l u n t a r i l y , the "'To that a b e f o r e he made t h e (Ala. Crim. including v. S t a t e , prove voluntarily interrogation, conditions To e s t a b l i s h must rights App. r i g h t s before making h i s statement." So. intelligently the State predicate." (Ala. Crim. ( A l a . 2002). "the accused "Whether a w a i v e r o f M i r a n d a and and a Miranda Eggers by v. (quoting CR-08-1779 Lewis As v. S t a t e , with the Miranda confession the 535 S o . 2 d 2 2 8 , 2 3 5 i svoluntary, circumstances State, must predicate, surrounding the Miranda confession only by McLeod v. S t a t e , prove voluntariness App. is sole of confession the United of a waiver choice' i n any broader 479 U.S. Court has h e l d that "to claim a States governmental on t h e a b s e n c e support of the See, 1998) ( S t a t e by a preponderance prove must of the coercion" of sense "some s o r t predicate this of and privilege overreaching, t h e word." (1986). Likewise, of 'state action'" [the] v i o l a t i o n 39 by Court has h e l d Amendment, on w h i c h of police 1 5 7 , 170 of Miranda Supreme of the F i f t h depended Connelly, State evidence). i s voluntariness The v. 795 S o . 2 d 7 8 8 , 808 ( A l a . C r i m . must concern based, Maxwell of the evidence. (Ala. a the t o t a l i t y of and v o l u n t a r i n e s s 718 S o . 2 d 727 of the Moreover, "[t]he predicate (State preponderance whether ( A l a . C r i m . App. 2000). and Smith v. S t a t e , 2000) determining the confession." a preponderance e.g., evidence), "when C r i m . App. 1 9 8 8 ) ) . a c o u r t must c o n s i d e r 828 S o . 2 d 3 4 7 , 354 prove (Ala. that Miranda that "[t]he has always n o t on 'free Colorado the a v. Supreme i s required o f t h e Due Process CR-08-1779 Clause of the Fourteenth other words, predicate Amendment." "coercive police to the finding that 479 U.S. activity a confession a t 165. i s a In necessary i s not 'voluntary' w i t h i n t h e m e a n i n g o f t h e Due P r o c e s s C l a u s e o f t h e Fourteenth Amendment." v. 4 7 9 U.S. 627 S o . 2 d 1 0 8 2 , 1 0 8 6 constitutionally coercion suppression case, involuntary of only Miranda evidence juvenile that was more than the evidence rights established Miranda by t h e S t a t e sufficient that and t h a t rights that at the to prove Wilkerson before had completed Wilkerson's was by a properly confession i . e . , t h a t i t was Wilkerson was was voluntary. advised h i s confession a w a i v e r - o f - r i g h t s form. Wilkerson read, of agents."). t h e p r o d u c t o f h i s own f r e e w i l l , signed State, o f , a n d t h a t he k n o w i n g l y a n d v o l u n t a r i l y w a i v e d , h i s juvenile The Quinlivan i f i t i s the product the evidence presented hearing preponderance See a l s o ( A l a . C r i m . A p p . 1 9 9 2 ) ("A s t a t e m e n t i s by government In t h i s advised a t 167. and of h i s that he The e v i d e n c e a l s o e s t a b l i s h e d the 11th grade, that he could w r i t e , a n d u n d e r s t a n d E n g l i s h , a n d t h a t he i n d i c a t e d t o the officers In addition, i n t e r v i e w i n g him that Wilkerson had, when 40 he u n d e r s t o o d his rights. interviewed previously, CR-08-1779 invoked h i s j u v e n i l e Miranda right t o have h i s p a r e n t d u r i n g q u e s t i o n i n g , thus showing Wilkerson's his the evidence rights. enforcement Moreover, officers d i d not coerce make a statement. Rather, that Wilkerson's confession counsel a n d was a s t r a t e g i c Any not additional have proof presented waiver that admission i n no way on t h e a d v i c e by t r i a l the State 32 p r o c e e d i n g s Wilkerson's him solely Indeed, counsel, office part undermines stipulated d i d nothing counsel confession. ... 41 nor The evidence that the rights or Wilkerson's presented during the s t a t u s was deposition, Wilkerson, wrong of during the Rule b e l i e f on imparted and n o t by any government " f o r the Record would i t s burden i n d i c a t e s o n l y t h a t any m i s t a k e n by h i s f a t h e r , penalty. the State's Miranda Jackson's of h i s nor indicates hearing juvenile regarding at Davis's met by W i l k e r s o n c o n f e s s i o n was i n v o l u n t a r y . The e v i d e n c e Rule clearly established of Wilkerson's at the suppression of Wilkerson's based presented and argument p r e s e n t e d proceedings or threaten Wilkerson to move t o a v o i d t h e d e a t h evidence the fact to warrant evidence 32 changed understanding of e s t a b l i s h e d that law- the evidence was present that through the to agent. Rule 32 prosecutor's d i d the police -- law CR-08-1779 enforcement, Although t h e y were a l l d o i n g Wilkerson "solidif[ied]" stating to rights, his that Wilkerson argued him, in belief that while he does had not their his him and s t a t e m e n t amounted to c o e r c i o n . activity, have any mistaken rendered confession 363 F.3d Va. 324, S.E.2d juvenile S.E.2d 98 551 (2005) App. 485, mistaken b e l i e f render 546 t h a t he defendant's involuntary); (1986) and (1996), (both United (holding v. that find, that this governmental part would and subsequent v. LeBrun, on other Va. mistaken i n v o l u n t a r y ) ; P o t t s v. could go 188, 613 belief of (holding home i f he confessed and 221 mistaken 42 subsequent Neb. 810, belief waiver Commonwealth, (2001) waiver Norfolk, a 229 251 grounds, n e c e s s a r i l y render a Miranda S.E.2d not Commonwealth, P r i s o n , 270 a Miranda 69), States Roach v. that by (C. not overruled holding Miranda State attorney present waiver v. Warden o f S u s s e x I S t a t e or subsequent c o n f e s s i o n Va. e.g., 379.) police juvenile Wilkerson's Miranda See, p r o m i s e d l e n i e n c y does not 35 on (8th C i r . 2004), 468 his do the an Absent coercive belief involuntary. 715 Morisette his of we that was "representative" argue, (C.Supp. petition Jackson advising a jobs." 381 that that did a not confession N.W.2d an 120 oral CR-08-1779 statement, as admissible a as Miranda State that v. a opposed waiver not a testimony of Jackson at was an confession on was U.S. 412, a Pamela, Johnny was of one Rule Miranda attorney and circuit J o h n n y was that the to they Radney's spoke with 2002, and law firm, Wilkerson or told Wilkerson capacity (1986). Wilkerson's that to he attorneys, 43 outside comprehend right." Likewise, testified occurring Moran although, told this and v. Wilkerson testimony his that of surely the can knowingly Burbine, unlike that neither before e n t i r e l y unknown t o him the Pamela believed "Events on a relevant not that 13, as and court hearing ever (holding waiver Juanita with and involuntary). both 32 be render interviewed Although constitutional 422 being (1996) s u s p e c t and bearing relinquish 634 render the Pamela, not involuntary); attorney. presence of the no not with September an A.2d was statement issue. they he did agree the that have that suspect, Juanita, testified Jackson 680 208 , would a d e f e n d a n t does not confession belief we one, N.J. 146 suppression testified written subsequent inculpatory Moreover, the or mistaken subsequent a evidence to c o n v i c t Roach, witness, to Juanita that 475 and Jackson established CR-08-1779 only that Wilkerson attorney, was told not that Wilkerson was a n a t t o r n e y , e s p e c i a l l y the suppression himself testimony at standing right law hearing to Wilkerson hearing the when school he to Wilkerson's juvenile does relevant to juvenile Miranda proceedings, even evidence ample that Jackson present contention, merely when Jackson presented was i n the bar because exam. he was his family's voluntarily testimony i f presented was more a beliefs waived h i s Radney create to resolve. presented an during the at the suppression than court Wilkerson was was thej u v e n i l e - d e t e n t i o n yet passed he Tompkins's Wilkerson stated that whether Jackson introduced and C p l . that an confessed. nothing testimony hearing not was testimony at specifically and f o r the t r i a l indicating that done he a u t o m a t i c a l l y make rights Jackson believed that during had determining the have that specifically that not that i n l i g h t of Jackson's t o Radney Radney Finally, actually suppression next and Johnny as an " i n v e s t i g a t o r " Contrary would by was at specifically and As noted told that indicated by i n the above, hearing Jackson Wilkerson that 32 hearing, a conflict suppression specifically investigator 44 the Rule Jackson was was CR-08-1779 n o t an a t t o r n e y . on Wilkerson's presided motion over to The r e c o r d r e f l e c t s Rule 32 specifically Wilkerson, Johnny, relief on this albeit implicitly, resolve the c o n f l i c t We not d i s t u r b part these trial a n d who in presented For was Although address testimony will petition Wilkerson's suppress. Juanita, the to denied believe that finding we f i n d ruled judge who Wilkerson's court d i d not on this claim 32 proceedings and Pamela, by d e n y i n g court that i n the evidence reasons, same circuit Rule the c i r c u i t not of the c i r c u i t the the i t s findings during claim, t h a t t h e j u d g e who the by Wilkerson obviously chose, testimony, and t o adversely to Wilkerson. on a p p e a l . no a b u s e o f d i s c r e t i o n court i n denying this on t h e claim. II. In C l a i m II in hispetition, pretrial-counsel Radney was Wilkerson alleged: ineffective for (a) T h a t not fully i n v e s t i g a t i n g t h e f a c t s and law r e g a r d i n g W i l k e r s o n ' s case and for not explaining circumstances "with of the case, complete "including candor" (C. the probable 107) the outcome" (C. 1 0 8 ) , t o W i l k e r s o n a n d h i s f a m i l y s o t h a t t h e y c o u l d make a [Wilkerson's] "knowing and v o l u n t a r y w a i v e r 45 of right to CR-08-1779 counsel trial and right counsel challenging (Issue to remain silent" (C. 1 0 7 ) ; a n d D a v i s and G i l l e n w a t e r s Radney's assistance IV i n W i l k e r s o n ' s (b) were i n e f f e c t i v e in this regard that f o r not at trial. brief.) A. With Wilkerson to respect to h i s challenge a l l e g e d , as b e s t investigate apprise himself t h a t he f a i l e d the facts t o Radney's we c a n d i s c e r n , of the case, of the law r e g a r d i n g to f u l l y charges and possible advising Wilkerson allege that Radney would receive two advise to cooperate. misinformed 10-year t h a t Radney 9 that to accomplice l i a b i l i t y , and and h i s f a m i l y o f t h e Wilkerson was Wilkerson him sentences and he failed failed Wilkerson sentence performance, facing before also appeared to his family that (one f o r t h e m u r d e r he and We n o t e t h a t , i n h i s p e t i t i o n , W i l k e r s o n c i t e d l a w a n d made s u m m a r y c o n c l u s i o n s , b u t i n c l u d e d l i t t l e o r no s p e c i f i c f a c t s w i t h i n most o f h i s i n d i v i d u a l c l a i m s o f i n e f f e c t i v e assistance of counsel. Rather, Wilkerson included at the beginning of h i s p e t i t i o n a "Statement of Facts" spanning over 60 p a g e s a n d i n c l u d i n g o v e r 200 p a r a g r a p h s . However, a b s e n t any s p e c i f i c f a c t s a l l e g e d w i t h i n e a c h i n d i v i d u a l i n e f f e c t i v e a s s i s t a n c e - o f - c o u n s e l claim, t h i s Court i s l e f t t o guess which o f t h e o v e r 60 p a g e s o f f a c t s W i l k e r s o n b e l i e v e d s u p p o r t e d which of h i s claims of i n e f f e c t i v e assistance of counsel. 9 46 CR-08-1779 one f o r t h e a t t e m p t e d m u r d e r ) a n d t h a t he w o u l d be r e l e a s e d i n approximately three years. 1 0 In i t s o r d e r , the c i r c u i t be b a r r e d b y R u l e been, but was 32.2(a)(3) not, appeal. Wilkerson however, for opinion, the the reasons circuit court found (a)(5) because i t could addressed trial that this explained court correctly this claim and b a r r e d by R u l e 3 2 . 2 ( a ) ( 3 ) and circuit found t h i s and raised argues court f i r s t (a)(5). claim t o be at finding in was Part found have and of claim this to In the a l t e r n a t i v e , meritless, on erroneous; I.A. this to be the stating: "Mr. D a v i s t e s t i f i e d t h a t h i s u n d e r s t a n d i n g o f t h e s i t u a t i o n was t h a t t h e p e t i t i o n e r and h i s f a m i l y w e r e s i m p l y c o n f u s e d as t o t h e s t a t e o f n e g o t i a t i o n s b e t w e e n Mr. Radney and the S t a t e . As to Mr. R a d n e y ' s e f f o r t s t o i n f o r m h i m s e l f as t o t h e f a c t s of the case, i t i s c l e a r from a l l the evidence t h a t Mr. R a d n e y s e n t an i n v e s t i g a t o r t o s p e a k w i t h t h e petitioner for just that purpose. Hon. Jason Jackson (now an a t t o r n e y , but serving as an i n v e s t i g a t o r at the time of the r e l e v a n t events) kept in contact with Mr. Radney and passed i n f o r m a t i o n b e t w e e n t h e p e t i t i o n e r a n d Mr. R a d n e y . "Mr. R a d n e y was f u l l y a w a r e o f t h e l a w r e l e v a n t t o t h e p e t i t i o n e r ' s c a s e a t t h e t i m e he r e p r e s e n t e d the p e t i t i o n e r . Mr. R a d n e y was an experienced a t t o r n e y , had h a n d l e d c a p i t a l c a s e s and f e l o n y j u r y A l t h o u g h W i l k e r s o n was ultimately tried for capital murder i n r e l a t i o n t o the murder of Donald W i l l i a m s , t h e r e i s no i n d i c a t i o n a s t o w h e t h e r W i l k e r s o n was c h a r g e d o r t r i e d i n r e l a t i o n t o the attempted murder of P e t e r Swyers. 1 0 47 CR-08-1779 trials before, and was aware of not only the sentencing requirements but also the real-world a p p l i c a t i o n of those sentences i n the p r i s o n system. I t i s c l e a r from the t o t a l i t y of the evidence t h a t Mr. R a d n e y was w e l l a w a r e o f t h e l a w r e l a t e d t o t h e p e t i t i o n e r ' s case." (C. 5 0 2 ; footnote omitted.) We agree w i t h the c i r c u i t court's findings. Radney testified at his deposition, and at the s u p p r e s s i o n h e a r i n g , t h a t , a t t h e t i m e he a d v i s e d W i l k e r s o n cooperate, he was fully aware of Jackson's meeting with Wilkerson Wilkerson h i m s e l f , and the State liability against that he and was e.g., Price 1997) aware ("[A]n i n d i v i d u a l and abet i n the principle not 1063 itself, affect (Ala. 725 his who a s w e l l as f r o m s p e a k i n g with In of 2d of the an 1055 offense in addition, 48 testimony also accomplice i s as as the See, (Ala. Crim. w i t h the long his evidence a s an a c c o m p l i c e . aided or the d o c t r i n e of 1003, actually of aware of the His "[a]s or w h e t h e r he liability fully i s present and promoted 1998). from liability So. commission wrongdoer" intentionally killing State, facts Wilkerson. of W i l k e r s o n ' s v. case t h a t he was had established the to App. intent to a i d guilty as the the [defendant] of the committed the murder does guilt."), Radney commission aff'd, made 725 clear So. in 2d his CR-08-1779 testimony t h a t he Wilkerson's testifying the rights t h a t he the discussing not of this and (Record testified was relating t h a t he case. facing f u l l y advised to the Wilkerson on direct penalty. case w i t h told R. evidence was regarding specifically everything 135.) about" Radney also Johnny t h a t W i l k e r s o n Although Radney and Johnny case, "discussed Wilkerson Johnny aware of what c h a r g e s W i l k e r s o n conflicting and murder appeal, specifically death the Wilkerson denied testified was facing, f o r the was circuit ever that he resolution court. The c o u r t o b v i o u s l y r e s o l v e d the c o n f l i c t i n g evidence adversely Wilkerson, finding and we will In a d d i t i o n , not disturb that Radney d e n i e d ever f a m i l y t h a t he w o u l d r e c e i v e two would be testified included released that two down b e c a u s e that the At the life he wanted the be pretrial hearing and 3 that sentences eligible the would not t e l l i n g Wilkerson years. negotiations sentences could prosecutor the plea on eligible the 49 with the to to or that Rather, the run broke 10 years run consecutively for parole f o r 20 motion to he prosecutor concurrently in his Radney negotiations for parole sentences be appeal. 1 0 - y e a r s e n t e n c e s and approximately wanted Wilkerson that Wilkerson in on to suppress, so and so years. Jackson CR-08-1779 also testified R a d n e y and 10-year its sentences. Wilkerson being n e v e r h e a r d any as and his hear family -- discussed with 10 -- were the years two simply -- life him Wilkerson t h a t he w o u l d be be would eligible created resolved by obviously Wilkerson and the resolved Therefore, the circuit we we court circuit not find regarding the they what no 10-year after court. conflicting disturb that abuse of i n denying was actually Although Johnny this told sentences only more t h a n a c o n f l i c t that will two for release nothing believed t h a t Radney s p e c i f i c a l l y receive in h e a r d what and of two noted t h a t he sentences. a t t h e R u l e 32 h e a r i n g to court confused instead between receiving circuit prosecutor testified testimony the at h i s d e p o s i t i o n , Davis t e s t i f i e d to that discussion about Wilkerson's Moreover, of n e g o t i a t i o n s wanted had Johnny or W i l k e r s o n order, state t h a t he 3 years, i n the The discretion this evidence circuit evidence finding and court adversely on on to appeal. the part of claim. B. With respect to Wilkerson's Gillenwaters's not circuit correctly court challenging found 50 claim regarding Radney's this Davis's and effectiveness, the claim to be meritless CR-08-1779 because, as e x p l a i n e d was ineffective not Gillenwaters i n Part I I . A . of t h i s in this could not opinion, Therefore, ineffective be regard. f o r not Radney Davis and challenging R a d n e y ' s e f f e c t i v e n e s s . S e e , e . g . , B i r d s o n g v . S t a t e , 929 S o . 2d was 1 0 2 7 , 1030 not ineffective ineffective assistance ( A l a .Crim. ... f o r not of t r i a l App. 2005) ("Because t r i a l counsel appellate raising this counsel not allegation could of be ineffective counsel."). III. In C l a i m pretrial contingent counsel Radney was Gillenwaters (C. 1 1 2 ) ; a n d were regard f o r not at t r i a l . for "making of the prosecutor (b) t h a t t r i a l ineffective in this a l l e g e d : (a) T h a t ineffective deal subject to the approval the v i c t i m s " assistance I I I i n h i s p e t i t i o n , Wilkerson counsel Davis challenging (Issue VI i n a and and Radney's Wilkerson's brief.) A. With Wilkerson prosecutor accept respect argued to h i s challenge in his petition and t h e t r i a l judge to that Radney's the p o l i c y i n the case any p l e a a g r e e m e n t s w i t h o u t 51 was the express assistance, of both the n o t t o make o r consent of the CR-08-1779 victims and/or ineffective cooperate approved court the victims' families and that Radney f o r a g r e e i n g w i t h the p r o s e c u t o r to have knowing by found the that Wilkerson's v i c t i m s and/or this c l a i m t o be sentence their Wilkerson would have families. was The to be circuit meritless, stating: "The third count of the petition is an i n e f f e c t i v e a s s i s t a n c e of c o u n s e l c l a i m r e g a r d i n g Mr. R a d n e y ' s n e g o t i a t i o n t a c t i c s w i t h t h e D i s t r i c t Attorney. The p e t i t i o n e r ' s r e l i a n c e on J o n e s v . S t a t e , 727 So. 2d 8 66 ( A l a . C r i m . App. 1998 ) , i s f l a w e d i n t h a t t h e d e f e n d a n t i n J o n e s made a f i n a l d e a l c o n t i n g e n t upon l a t e r e v e n t s . There are no such facts i n t h i s case. It i s clear that Mr. Radney and the State were in the midst of negotiations, and that to facilitate those negotiations Mr. Radney advised his client to cooperate with the authorities. Mr. Radney, possibly through Mr. Jackson, informed the p e t i t i o n e r as t o t h e s t a t e o f t h e n e g o t i a t i o n s a n d a s t o Mr. R a d n e y ' s g o a l s f o r t h e e v e n t u a l o u t c o m e o f the n e g o t i a t i o n s . T h e r e was no c o n t i n g e n t d e a l i n t h i s c a s e , m e r e l y an o n g o i n g s e t o f n e g o t i a t i o n s . " (C. 5 0 3 ; footnote omitted.) finding that although we that As to noted was disagree t h e r e was Wilkerson and there no no We agree w i t h the c i r c u i t contingent with the agreement implicit in this finding agreement at a l l at the time court's by the case, court Radney advised suppression hearing cooperate. above, at the Rule the evidence 32 p r o c e e d i n g s at the e s t a b l i s h e d t h a t t h e r e was, 52 in CR-08-1779 fact, an agreement time Wilkerson established penalty that between Radney and/or the agreed prosecutor Wilkerson a g r e e m e n t was the victims' correctly found, Wilkerson i f and i t was the victims' agreement existed, denied the by on families. this circuit claim the Thus, death with approval as the by the because and court reached receive, an of the no was and continued would approval is meritless victims circuit prosecutor Wilkerson the the evidence i n d i c a t i n g any the at evidence seek none of w h i c h l e d t o agreement, t h a t were c o n t i n g e n t and/or to a g r e e m e n t was sentence those n e g o t i a t i o n s , no Rather, Radney and the the cooperated on after this that regarding he contingent i t was not T h e r e was families. confessed negotiating prosecutor Specifically, against this the confessed. i n v e s t i g a t i o n of the murder. that and actual victims contingent properly court. B. As for Wilkerson's claim that ineffective because for R a d n e y was Gillenwaters could not not not challenging D a v i s and Radney's ineffective in this be ineffective for 53 Gillenwaters effectiveness, regard, not were Davis raising and that CR-08-1779 claim. claim See, e.g., B i r d s o n g , was also supra. Therefore, d e n i a l of t h i s proper. IV. In Claim counsel IV i n h i s p e t i t i o n , Davis objecting and Wilkerson Gillenwaters to the admission were alleged that ineffective of Wilkerson's offense. brief 93 However, W i l k e r s o n on a p p e a l . ( A l a . Crim. listed was this correct dropped." not App. 1995) ("We in brief."). claim, on the stating corpus this will not of the claim i nhis Indeed, review delicti issues Wilkerson in his brief: (Wilkerson's b r i e f , consider on t h e delicti does not p u r s u e t h i s not S e e , e . g . , B r o w n l e e v . S t a t e , 666 S o . 2 d 9 1 , and a r g u e d abandons for confession ground t h a t the S t a t e had not proven the corpus trial expressly "The issue, a t p . 1 n.2.) not trial court and i t is being Therefore, we do claim. V. In Claim V i n h i s p e t i t i o n , counsel Davis to trial the Wilkerson's counsel and G i l l e n w a t e r s were court's brief.) were Wilkerson jury ineffective instructions. Specifically, ineffective alleged that f o r not 54 he a r g u e d : objecting with (Issue trial respect VII in (a) T h a t trial to trial the CR-08-1779 court's jury erroneously complicit the instructions informed on complicity the j u r y i n the robbery that of c a p i t a l counsel were ineffective for court's jury instruction on claimed, the t r i a l to a have that the trial trial scene claims the counsel t o be b a r r e d incorrect. Although underlying issues court's that jury does assistance ineffectiveness acquit that because, Wilkerson; and to warrant In denial this this propriety have of not have been at the been a these r a i s e d on a p p e a l the c i r c u i t the that accomplice. argues that case, 55 he (c) because the merits have been agree w i t h relating could trial the appeared to f i n d 32.2(a)(5) Wilkerson we counsel. to t o l d the j u r y t h a t i t had court i n s t r u c t i o n s could not trial mere p r e s e n c e "could be (b) t h a t the j u r y by Rule (C. 5 0 3 . ) to f o r not r e q u e s t i n g the c i r c u i t were n o t . " had complicit in doubt d o e s n o t make s o m e o n e an issues said, ineffective instruct i t s order, underlying were to t o be murder; reasonable he only objecting court erroneously of the crime In not " s u b s t a n t i a l doubt" court Wilkerson and d i d n o t have m u r d e r , t o be c o n v i c t e d which, court of of but was that the the r a i s e d on claim trial finding of trial appeal, ineffective counsel's alleged r a i s e d on a p p e a l because CR-08-1779 the trial transcript was not complete c o u n s e l t o have r e v i e w e d i t and challenging trial State, So. 852 defendant raising the first was not reviewed viable 2d 1 94 , 202 precluded Rule i n a Rule prepared in to present a new trial."). these c l a i m s t o be 32 petition time the for claim barred. findings that appellate and jury doubt at t r i a l were proper to support i n s t r u c t i o n on m e r e p r e s e n c e . on and trial We findings. A. 56 ("[A] from for transcript to a claim was filed motion for circuit in finding court specifically no and evidence counsel requesting a these also finding liability t h e r e was agree with have such accomplice that v. claim court erred on t h e m e r i t s , V.R. (5) counsel i n a timely the trial 2002) trial whether However, instructions presented App. i f the Therefore, the c i r c u i t made a l t e r n a t i v e reasonable e.g., 32.2(a)(3) the t r a n s c r i p t to a s c e r t a i n the appellate f o r a new See, (Ala. Crim. by for ineffective-assistance-of-trial-counsel time and a motion counsel's effectiveness. i s not an filed i n time jury alternative CR-08-1779 The record from Wilkerson's following instructions complicity and c a p i t a l by direct the t r i a l appeal court reflects with respect to murder: " [ T ] h e f i r s t t h i n g I want t o r e a d t o you i s f r o m S e c t i o n 13A-2-23[, A l a . Code 1 9 7 5 ] . It's talking about c o m p l i c i t y . "A p e r s o n i s l e g a l l y a c c o u n t a b l e f o r the b e h a v i o r of another person c o n s t i t u t i n g a crime, i f with intent t o promote or assist the commission of the crime he e i t h e r , one, p r o c u r e s , i n d u c e s , o r causes s u c h o t h e r p e r s o n t o commit t h e c r i m e ; o r a i d e s and abets such p e r s o n i n c o m m i t t i n g the c r i m e ; or has a l e g a l duty t o p r e v e n t the commission o f t h e crime and f a i l s t o make s u c h e f f o r t a s he i s l e g a l l y r e q u i r e d t o make t o p r e v e n t i t . "Now, B l a c k ' s Law D i c t i o n a r y d e f i n e s an a b e t t e r a s : "'A p e r s o n who a i d s , encourages a s s i s t s i n the commission of a crime.' "To "Aiding a i d i s to assist and a b e t t i n g or or help. i s defined as: "'To assist or facilitate the c o m m i s s i o n o f a c r i m e o r t o -- t o p r o m o t e its accomplishment.' "Now, a t t h i s t i m e , L a d i e s a n d g e n t l e m e n , to d e f i n e f o r you C a p i t a l Murder. I am g o i n g "The D e f e n d a n t i s c h a r g e d w i t h C a p i t a l Murder. The l a w s t a t e s t h a t a n I n t e n t i o n a l Murder committed d u r i n g a Robbery i n the F i r s t Degree i s C a p i t a l Murder. 57 the CR-08-1779 "A person commits an Intentional M u r d e r i f he c a u s e s t h e d e a t h o f a n o t h e r p e r s o n and i n p e r f o r m i n g t h e a c t s o r a c t s w h i c h c a u s e d t h e d e a t h o f t h a t p e r s o n he intends to k i l l that person or another p r e s e n t -- o r a n o t h e r p e r s o n . "A p e r s o n c o m m i t s R o b b e r y i n t h e F i r s t Degree i f , i n the c o u r s e of c o m m i t t i n g or a t t e m p t i n g t o c o m m i t a t h e f t , he u s e s f o r c e a g a i n s t t h e p e r s o n of t h e owner o r a n o t h e r p e r s o n p r e s e n t w i t h the i n t e n t to overcome h i s p h y s i c a l r e s i s t a n c e or p h y s i c a l power of r e s i s t a n c e or t h r e a t e n s the imminent use of f o r c e a g a i n s t t h e p e r s o n o f t h e owner w i t h the i n t e n t to compel a c q u i e s c e n c e to the taking of or escaping with the property, and i n doing so, he causes serious p h y s i c a l i n j u r y to another. "To convict, the S t a t e must prove w i t h o u t -- w i t h o u t a r e a s o n a b l e d o u b t e a c h o f t h e f o l l o w i n g e l e m e n t s -- s h o u l d p r o v e beyond a r e a s o n a b l e doubt each of the f o l l o w i n g elements of i n t e n t i o n a l Murder d u r i n g Robbery i n the F i r s t Degree. "First -- "-- a n d t h e r e a r e g o i n g t o be v a r i o u s e l e m e n t s and e a c h one m u s t be p r o v e n b e y o n d a r e a s o n a b l e d o u b t . "First: That Donald Edward W i l l i a m s i s dead. "That's the first element. "Two: That the Defendant, Bruce Antonio W i l k e r s o n , caused the death of D o n a l d Edward W i l l i a m s by s h o o t i n g him w i t h a r i f l e o r a i d e d and a b e t t e d a n o t h e r i n t h e 58 CR-08-1779 s h o o t i n g , t o - w i t , Lamar R o b i n s o n o r L a r e g i s Ferrell. "Three: That i n c o m m i t t i n g the a c t or a c t s t h a t caused the death of Donald Edward W i l l i a m s , the Defendant i n t e n d e d to kill the d e c e d e n t or a n o t h e r p e r s o n . "A p e r s o n a c t s i n t e n t i o n a l l y when i t is h i s purpose to cause the death of another person. "The specific. intent to k i l l must be real and "Four: That the Defendant committed or a t t e m p t e d t o commit t h e t h e f t o f lawful paper c u r r e n c y . "Five: That in the course of c o m m i t t i n g o r a t t e m p t i n g t o commit a t h e f t or i n the immediate flight after the attempt or commission, Bruce Antonio W i l k e r s o n e i t h e r used f o r c e or t h r e a t e n e d the imminent use of force against the p e r s o n of Donald Edward W i l l i a m s or a n o t h e r p e r s o n p r e s e n t w i t h the i n t e n t t o overcome h i s p h y s i c a l r e s i s t a n c e or p h y s i c a l power to r e s i s t or to compel a c q u i e s c e n c e t o the t a k i n g of or e s c a p i n g w i t h the p r o p e r t y . the (Record trial on "And s i x : The M u r d e r Robbery." direct a p p e a l , R. took place 1656-62; during emphasis added.) court l a t e r repeated the i n s t r u c t i o n f o r c a p i t a l upon q u e s t i o n i n g by t h e j u r y , required to prove that murder, again s t a t i n g that the State Wilkerson caused 59 Williams's The death was by CR-08-1779 either s h o o t i n g W i l l i a m s or shooting an intent (Ala. Crim. Capital "However, App. a 1984) may if, only but intentional a to i f , the killing another 468 of an t o b e i n g an the end, "the jury intentional be properly must I d . a t 1113. Ziegler v. State, So. 127, (Ala. Crim. be convicted death, a defendant of capital App. also 2003) sentenced of kill."). 60 a particularized to a n d t h e j u r y m u s t h a v e b e e n c h a r g e d on t h e r e q u i r e m e n t to had See to intent have o f f e n s e and 1111, intent specific must [a] merely 2d issue." ("[T]o the So. to k i l l 140 in accomplice the i n t e n t 2d liability accomplice on 886 1981 capital accomplice E x p a r t e R a i n e s , 429 that 416 (1981)). a a non-triggerman was 413, Alabama's 456, to 2d Thus, "the a c c o m p l i c e opposed To So. convicted accomplice defendant as 456 charged kill in o f f e n s e u n l e s s he Carnes, be convict felony." ( A l a . 1982). State, Ala.Law. can knowing used the u n d e r l y i n g 1112 42 I d . a t 417. be v. ( q u o t i n g E. Statute, was itself." doctrine in abetting of a c a p i t a l Lewis non-triggerman i f he killing is guilty to k i l l . ' " Punishment offense and Williams. "'[N]o defendant had aiding CR-08-1779 In this accomplice case, liability the and trial court's capital murder, instructions taken as a on whole, c l e a r l y informed the j u r y , c o n t r a r y to W i l k e r s o n ' s c o n t e n t i o n , that t o be been an aided as accomplice and opposed trial i n the a b e t t e d i n the robbery. by c o n v i c t e d of c a p i t a l to merely murder, W i l k e r s o n had killing, i . e . , t h a t he s h o o t i n g and being an had the accomplice Because the i n s t r u c t i o n s were p r o p e r , c o u n s e l would have been b a s e l e s s . n o t be i n e f f e c t i v e for failing B e a r d e n v. S t a t e , 825 Therefore, denial of So. this 2d the claim 872 was have to objection "[C]ounsel (Ala. Crim. kill, underlying any to r a i s e a baseless 868, have to had intent in to could objection." App. 2001). proper. B. The the trial r e c o r d from court Wilkerson's instructed the direct jury appeal on reflects reasonable doubt follows: "Now, reasonable doubt. T h a t ' s a t e r m t h a t you p r o b a b l y h e a r d a good b i t b e f o r e you even appeared f o r j u r y d u t y , b u t i t ' s d e f i n e d as f o l l o w s : "In order to find the Defendant g u i l t y , t h e p r o s e c u t i o n or t h e S t a t e must p r o v e g u i l t b e y o n d a r e a s o n a b l e d o u b t and a moral c e r t a i n t y . "Now, w h a t do I mean b y a reasonable 61 doubt? that as CR-08-1779 "A r e a s o n a b l e d o u b t i s n o t a f a n c i f u l doubt o r a c o n j e c t u r a l doubt, b u t i s a doubt which a p p e a l s t o your reason a f t e r considering a l l the evidence i n the case. "The C o u r t c a n b e t t e r e x p r e s s i t t h i s way: I n c o n n e c t i o n w i t h r e a s o n a b l e d o u b t , you cannot establish guilt to a mathematical certainty. Y o u c a n o n l y do i t to t h a t c e r t a i n t y as you w e i g h t h e e v e r y day a f f a i r s of l i f e that y o u come i n contact with. A r e a s o n a b l e doubt does n o t mean a c a p r i c i o u s d o u b t . I t i s not a doubt b a s e d on c o n j e c t u r e , s p e c u l a t i o n , o r g u e s s work. I t d o e s n o t mean b e y o n d a l l d o u b t . A r e a s o n a b l e d o u b t means a r e a l d o u b t o r a substantial doubt growing out of the evidence. I t i s a doubt f o r which a reason can be g i v e n . "Now, the term moral certainty: "The e x p r e s s i o n beyond a reasonable doubt and to a moral certainty are e q u i v a l e n t a n d , t h e r e f o r e , mean t h e same thing." (Record on d i r e c t Read entire as oral "substantial instructions See, whole and c h a r g e , we doubt" i n context find in 1650-53.) no e r r o r this v. Nebraska, 24 S o . 3 d 480 ( A l a . 2009); of the t r i a l Similar jury have r e p e a t e d l y been u p h e l d . 5 1 1 U.S. 1 ( A l a . C r i m . App. 2006), Turner v. S t a t e , 62 court's i n the use of the term instruction. on r e a s o n a b l e d o u b t e.g., V i c t o r State, 540 a a p p e a l , R. (1994); aff'd, 924 S o . 2 d 737 Lewis v. 23 S o . 3 d (Ala. Crim. CR-08-1779 App. 2002); Crim. App. appeal and 1999). that the instructions in Greenhill use of the does n o t , issue should analysis. (See no in error ineffective c a n n o t be See by this term itself, U.S. be 39 74 6 of t h i s "substantial rise supra. 10 64 doubt" the (Ala. level in of on jury error argues only a cumulative-error opinion.) trial noted were above, a groundless denial that Because there counsel As raising Therefore, 2d and in o b j e c t i n g to i t . f o r not to (1990), instruction, ineffective So. concedes i n h i s b r i e f considered Part VII f o r not Bearden, State, Indeed, Wilkerson C a g e v . L o u i s i a n a , 498 this v. of was not counsel objection. this claim was proper. C. Finally, Wilkerson c o u n s e l were i n e f f e c t i v e to the does court an effect not make that mere a person correctly found argued in his petition that his f o r not r e q u e s t i n g a j u r y presence an at the accomplice. that Wilkerson was scene However, not instruction of the the entitled crime circuit to instruction. "An accused has the r i g h t to have the charged on '"any material hypothesis which evidence i n h i s f a v o r tends to e s t a b l i s h . " ' p a r t e S t o r k , 475 So. 2d 6 2 3 , 624 ( A l a . 1985). 63 trial jury the Ex 'In such CR-08-1779 d e t e r m i n i n g w h e t h e r a n i n s t r u c t i o n was s u p p o r t e d b y t h e e v i d e n c e t h e q u e s t i o n i s n o t w h e t h e r t h e Supreme Court or Court of C r i m i n a l Appeals believes the evidence, but simply whether such evidence was presented.' Id. '[E]very accused i s e n t i t l e d to h a v e c h a r g e s g i v e n , w h i c h w o u l d n o t be m i s l e a d i n g , which c o r r e c t l y s t a t e t h e law o f h i s case, and which are supported by any evidence, however weak, i n s u f f i c i e n t , or d o u b t f u l i n c r e d i b i l i t y . ' Ex p a r t e C h a v e r s , 361 So. 2d 1 1 0 6 , 1107 ( A l a . 1 9 7 8 ) . ' " ' I t i s a b a s i c t e n e t o f A l a b a m a l a w t h a t "a p a r t y i s e n t i t l e d t o h a v e h i s t h e o r y o f t h e c a s e , made b y t h e pleadings and i s s u e s , p r e s e n t e d t o t h e j u r y by proper instruction, ... a n d t h e [ t r i a l ] court's failure to give those i n s t r u c t i o n s i s r e v e r s i b l e error."'"' E x p a r t e M c G r i f f , 908 S o . 2 d 1 0 2 4 , 1 0 3 5 ( A l a . 2 0 0 4 ) , q u o t i n g W i n n e r I n t ' l C o r p . v . Common Sense, I n c . , 863 S o . 2 d 1 0 8 8 , 1 0 9 1 ( A l a . 2 0 0 3 ) , quoting i n turn other cases. 'In order to determine w h e t h e r t h e e v i d e n c e i s s u f f i c i e n t t o n e c e s s i t a t e an i n s t r u c t i o n and t o a l l o w t h e j u r y t o c o n s i d e r t h e d e f e n s e , we m u s t v i e w t h e t e s t i m o n y m o s t f a v o r a b l y to the defendant.' E x p a r t e P e t t w a y , 594 S o . 2 d 1196, 1200 ( A l a . 1 9 9 1 ) . " Williams 2005). v. S t a t e , " [ W ] h i l e mere p r e s e n c e and place of a crime any assistance offense 938 S o . 2 d 440 , 4 4 4 - 4 5 will rendered suffice." case, even viewed simply idea no r e a s o n a b l e that o f an i n d i v i d u a l App. at the time d o e s n o t make h i m a p a r t y t o t h e c r i m e , ( A l a . Crim. App. 1997), this (Ala. Crim. i n f u r t h e r a n c e of commission Travis aff'd, v. S t a t e , of the 776 S o . 2 d 8 1 9 , 863 776 S o . 2 d 874 ( A l a . 2 0 0 0 ) . most f a v o r a b l y t h e o r y from W i l k e r s o n was " m e r e l y 64 In t o W i l k e r s o n , t h e r e was the evidence to support the p r e s e n t " a t t h e scene of the CR-08-1779 crime and Because trial was an not, in instruction on c o u n s e l were not instruction. any way, connected "mere p r e s e n c e " ineffective Therefore, denial was f o r not of this to the not crime. warranted, r e q u e s t i n g such c l a i m was an proper. VI. In trial C l a i m VI counsel in his petition, Davis arguing what closing arguments and (b) he that ineffective and for prosecutorial were (C. 129) (Issue V I I I Davis objecting misconduct for theories" during brief); Gillenwaters what regarding That i n Wilkerson's and to (a) ineffective "inconsistent counsel not alleged: G i l l e n w a t e r s were claimed trial Wilkerson the he claimed sequestration were was of witnesses. A. With respect Gillenwaters's petition guilty was to closing that Davis while guilty B e c a u s e he of Wilkerson's arguments, argued to the G i l l e n w a t e r s argued the lesser-included c o u l d not be both challenge to Wilkerson alleged jury to 65 and in his t h a t W i l k e r s o n was not the jury offense innocent Davis's and of that Wilkerson felony guilty at murder. the same CR-08-1779 time, Wilkerson this concluded, circuit court 32.2(a)(4) because appeal." (C. incorrect. not noted time ineffective found "[T]he for on appeal, petitioner lesser circuit nor a See court in not included to by V.R., or have supra. found the defense The guilty even was not reviewed c l a i m to counsel be did could of c a p i t a l offense." this finding i t and trial (C. meritless, counsel filed as in a counsel's however, stating: not argue 'mutually have found that m u r d e r and 504.) on was complete In the a l t e r n a t i v e , jury Rule i t have been b e c a u s e , challenging court that Wilkerson's exclusive, barred c l a i m were r a i s e d that transcript trial defenses. was could trial new argues be I n e f f e c t i v e a s s i s t a n c e of t r i a l petitioner's exclusive' to Wilkerson appellate counsel circuit claim " [ t ] h e m e r i t s of t h i s p r e v i o u s l y , the for the agree. We effectiveness. a were 504.) raised motion the counsel regard. The was his We yet g u i l t y agree c o u n s e l d i d not argue i n c o n s i s t e n t , defenses the during with of the mutually closing argument. The record Gillenwaters from Wilkerson's began the defense's 66 direct closing appeal reflects argument by that arguing CR-08-1779 that W i l k e r s o n h a d no i n t e n t t o k i l l , most, he was murder. guilty Davis and t h a t , of the l e s s e r - i n c l u d e d concluded the defense's arguing to the j u r y that Wilkerson's coercive environment, participant Robinson, capital could i n the crime, and that, murder. have murder As found but offense. that he was do n o t f i n d be i n c o n s i s t e n t . still trial Therefore, was felony argument by made i n a willing under the c o n t r o l o f Lamar was not at a court Wilkerson of c o n f e s s i o n was Wilkerson the c i r c u i t that that We therefore, offense closing Wilkerson b u t was therefore, was not pointed not guilty of counsel's out, the guilty a guilty of of jury capital lesser-included c l o s i n g arguments to d e n i a l of t h i s c l a i m was proper. B. With respect Gillenwaters's to not Wilkerson's objecting challenge to misconduct, W i l k e r s o n does not pursue on a p p e a l . Therefore, considered. (Ala. and Crim. argued 1995) allege this claim Davis's ("We will in brief."). VII. 67 State, not review 666 and prosecutorial in his brief i t i s deemed a b a n d o n e d and w i l l See, e.g., B r o w n l e e v. App. to So. issues 2d not n o t be 91, 93 listed CR-08-1779 In C l a i m VII in his petition, Wilkerson alleged c u m u l a t i v e e f f e c t i v e o f p r e t r i a l c o u n s e l ' s and errors require Wilkerson's this claim that he In brief.) to be i t s order, meritless, granted trial relief. the that counsel's (Issue circuit the IX court in found stating: "The p e t i t i o n e r ' s seventh claim i s that an a c c u m u l a t i o n of minor e r r o r s would c o n s t i t u t e e r r o r worthy of s e t t i n g a s i d e the p e t i t i o n e r ' s c o n v i c t i o n . However, the Court finds that i f any error was committed i n the p e t i t i o n e r ' s t r i a l , or i f t r i a l counsel was i n a n y way i n e f f e c t i v e , there i s not enough e r r o r or ineffectiveness present to have p r e j u d i c e d the p e t i t i o n e r ' s case." (C. 504.) We First, opinion, agree. as explained neither ineffective; in therefore, I nor Radney Parts Davis and there could Second, even i f Radney, D a v i s , in the any way, circuit there was court properly the foregoing, B a s e d on denying Wilkerson's no Rule be this Gillenwaters no of were denied the VI cumulative or G i l l e n w a t e r s prejudice 32 through were d e f i c i e n t to Wilkerson. this claim. judgment of the petition is Therefore, circuit affirmed. AFFIRMED. Windom, K e l l u m , Burke, and 68 error. Joiner, JJ., concur. court
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