Opinion
CR–09–0909.
03-14-2014
Howard Carl WHITED v. STATE of Alabama.
Walter W. Kennedy III, Pell City, for appellant. Troy King and Luther Strange, attys. gen. and Audrey K. Jordan, asst. atty. gen., for appellee.
Walter W. Kennedy III, Pell City, for appellant.
Troy King and Luther Strange, attys. gen. and Audrey K. Jordan, asst. atty. gen., for appellee.
On Application for Rehearing and On Return to Second Remand
PER CURIAM.
The opinion issued on December 20, 2013, is withdrawn and the following opinion is substituted therefor.
The appellant, Howard Carl Whited, was convicted of sodomy in the first degree, a violation of § 13A–6–63, Ala.Code 1975. The circuit court sentenced Whited to 35 years' imprisonment and ordered Whited to pay $50 to the Alabama Crime Victims Compensation Fund and court costs.
The evidence presented at trial established the following pertinent facts. In May 2005, when M.H. was 14 years old, she lived with her father in an apartment complex in Allgood. Danny Robertson lived next to M.H. and her father. Robertson testified that he had observed Whited at M.H.'s father's apartment approximately two to three times per week. Robertson stated that he could hear conversations and noise coming from M.H.'s apartment, and, specifically, on the evening of May 19, 2005, Robertson went to take a shower and could hear M.H. saying “Stop. Don't. No more, please.” Robertson stated that, in addition to M.H.'s voice, he could hear three male voices. Robertson stated that after he got out of the shower he could hear M.H. “crying—weeping on the floor.” (R. 38.) Robertson stated that there had been “[q]uite a few” incidents similar to this and that on those occasions he would see Whited at the apartment. After Robertson heard M.H. “crying—weeping on the floor” he reported what he had heard to the Blount County Sheriff's Office the following morning.
M.H. testified that in 2005 Whited and another male—Edward Dunn—would visit her father and that Whited would be at her house “[e]very now and then.” (R. 74.)
M.H. stated that one morning in February 2005, she woke up at approximately 6:00 a.m. and heard someone knocking on the front door. M.H. stated that she answered the door and saw Whited. M.H. testified that Whited asked whether M.H.'s father was home and she went and checked. When M.H. returned to the door to tell Whited that her father was not home, Whited came into the apartment and shut the door and gave her two pieces of gum. M.H. stated that she turned around and placed one piece of gum on the washing machine and Whited grabbed her around the waist and started kissing her neck. M.H. stated that Whited then “started talking to [her] telling [her] that he knows that [she] think[s] about him a lot and that [she] dream[s] about him.” (R. 76–77.) M.H. stated that she told Whited that she did not “think like that” and told him that she “needed to get ready for school and that he needed to get ready to go to work and he needed to leave.” (R. 77.) M.H. stated that Whited then told her that “everybody has got to grow up sometime” and that “if [she] ever changed [her] mind, [she] could call him.” (R. 77.) M.H. stated that after Whited left she began crying because she “couldn't believe what had just happened.” (R. 77.) M.H. stated that when she got to school she told the school nurse what had happened.
M.H. further testified that in May 2005 she came home from school and Whited, Dunn, and her father were sitting on the couch “laughing and smoking pot.” According to M.H., “they were looking at [her] weird” so she decided to go to her room. M.H. stated that she could hear the three men when she was in her room and that she stayed in her room until she got up to get something to drink. M.H. stated that she then got ready for bed but could not fall asleep because the three men were too loud. M.H. stated that, at some point, the bedroom door opened and Whited, Dunn, and her father entered the bedroom. M.H. stated, however, that “[i]t was dark” in the bedroom and that she “couldn't see their faces.” (R. 81.) M.H. stated that Whited then came toward her and “grabbed [her] by the leg and he pulled [her] long ways on [her] bed over to [her] dad's bed.” (R. 83.) M.H. stated that Whited then “took [her] panties off” and “got on top of [her] and then he stuck his penis in [her] back side and then somebody took an electric toothbrush and he stuck it inside [her].” (R. 83.) M.H. stated that Whited then “took a back massager and rubbed it on [her] back and all over. He got off [her] and someone else got on [her].” (R. 83.) M.H. stated that while this was happening she was on her stomach and that if she tried to get up “somebody would hit [her] on the back of the head.” (R. 84.) M.H. further testified that, at some point, “[t]hey got off and [Whited] said if [she] told anybody, that he would kill [her].” (R. 85.)
After M.H. testified, the State rested and Whited moved for a judgment of acquittal, which the circuit court denied. Whited then presented evidence that tended to establish the following: Jeffrey Whited (“Jeffrey”) testified that he is Whited's uncle and that on May 19, 2005, he visited with Whited at approximately 6:30 p.m. at Jeffrey's mother's house in Oneonta. Jeffrey stated that he remembered visiting with Whited on that date because he wrote it down in his journal, which, he said, he keeps for work. Jeffrey stated that Whited was at the house when he arrived and that Whited told Jeffrey that his back hurt. According to Jeffrey, Whited “looked rough.” Jeffrey stated that he stayed at the house until approximately 9:00 p.m. and that Whited did not leave.
Deputy Sue Ashworth testified that she investigates sexual crimes for the Blount County Sheriff's Office. Ashworth testified that on May 26, 2005, she went to M.H.'s father's apartment, because she had received a complaint from Robertson about possible sexual abuse. Deputy Ashworth stated that on May 26, 2005, M.H. stated that “her father had put his penis in her butt” (R. 153) and that Whited and another person were involved as well. Deputy Ashworth also testified, however, that M.H. stated that she could not see their faces. Deputy Ashworth testified that during the interview she did not notice any marks on M.H. to indicate physical abuse. According to Deputy Ashworth, M.H., during a videotaped interview, stated that she was “penetrated vaginally” by both her father and Whited. (R. 156.) Deputy Ashworth testified that, at some point, she executed a search warrant on M.H.'s father's apartment and seized sheets, bedding, toothbrushes, and a massager for the purpose of having those items tested at the Department of Forensic Sciences (“DFS”). Deputy Ashworth testified that she received a report from DFS indicating that they were unable to locate any DNA evidence on the items. Deputy Ashworth further testified that M.H. received a medical examination that indicated that she had contracted ureaplasma urealyticum—a sexually transmitted disease. Deputy Ashworth stated that Whited was tested for the sexually transmitted disease and that his test result was negative. Deputy Ashworth testified, however, that Edward Dunn tested positive for ureaplasma urealyticum. Deputy Ashworth stated that, in July 2005, she interviewed Whited and Whited denied any involvement with the offense.
On cross-examination, Deputy Ashworth stated that M.H. told her that, before May 19, 2005, M.H. had been molested by her father for a long period (R. 182) and, on those occasions, would scream for her father to stop.
Brad Sims, a child-abuse-and-neglect investigator for the Department of Human Resources, testified that he and Deputy Ashworth met with M.H. in May 2005. According to Sims, M.H. did not tell them what occurred on May 19, 2005, but only stated that she had been molested by her father. Sims stated that at that time there was no indication that anyone but M.H.'s father was involved. Sims testified that on June 15, 2005, he and Deputy Ashworth again met with M.H. and that, during that meeting, M.H. for the first time mentioned both Whited and Dunn. When confronted with his report of that meeting, however, Sims agreed that the report did not mention Whited or Dunn and stated only that “[M.H.] told us again that she had been molested by her father. She indicated that he had anal sex with her in the bedroom they shared.” (R. 232.)
On cross-examination, Sims testified that he had investigated Whited in February 2005, because M.H. had alleged that Whited had come to her father's apartment and kissed her on the neck and also mentioned to M.H. that he had been having dreams about engaging in sexual intercourse with her. Sims stated that, although Whited did not deny going to the apartment, he denied any wrongdoing. Sims conceded that no charges were brought against Whited arising out of the events that M.H. alleged occurred in February 2005.
Hulan Whited (“Hulan”), Whited's father, testified that on May 19, 2005, he and Whited were
“over at Mr. Owen's house. His lawnmower had broke down with him. He had to get a part for it—had to go to Cleveland. We had to mow Ms. Turley's yard. We worked on it until noon and got us a sandwich and went over there and mowed her yard. [Whited] hurt his back. We got home and he was in the bed a week.”
(R. 236.) Hulan further testified that on May 19, 2005, Jeffrey came over to the house at approximately 6:00 p.m. and remained at the house until approximately 9:30 p.m. According to Hulan, Whited was at the house the entire evening because Whited hurt his back and was unable to leave.
Daniel Stidham testified that in May 2005, he was employed by Mutual Savings Life Insurance and that Whited was one of his customers. According to Stidham, on May 19, 2005, he
“and his sales manager [were] working Springville Boulevard. That was his first week of employment. We had went down to Glenda Torbert's on Woodard Road, and as we were coming back up, as we approached Ms. Turley's driveway and the edge of her lawn here, my sales manager had me to slow down and stop. He waved at [Whited] and his father[.]”
(R. 240.) Stidham testified that he did not know who Whited was at the time and was only able to recall that he saw Whited on May 19, 2005, because he had a “copy of [his] mandate” (R. 241), which he kept for work.
Whited testified in his own behalf, and, although he conceded that he knew M.H., he denied that he had anything to do with the events of May 19, 2005. Whited stated that he knew M.H.'s father because they had gone to school together and that in February 2005 he was going to work and noticed that the hood on M.H.'s father's car was raised. Whited stated that he then went over to M.H.'s father's apartment to see if he needed a ride to work. Whited stated that M.H. answered the door and indicated that her father was not home. According to Whited, he never entered the apartment and, after M.H. stated that her father was not home, he left the apartment and never returned.
Whited stated that on May 19, 2005, he was working with his father and his great uncle, Cecil Owen. According to Whited, they repaired a lawnmower that morning and around 12:00 p.m. went to Ms. Turley's home to cut her lawn. Whited stated that it took approximately two and a half hours to cut Ms. Turley's lawn and they left Ms. Turley's home at approximately 3:00 p.m. Whited stated that, at some point that day, he strained a muscle in his back “around where [he] had surgery.” (R. 251.) Whited further testified that he did not have any sexually transmitted diseases.
According to Whited, in 1999 he injured the “seven, eight, and nine thoracic spine and went paralyzed.” (R. 252.) As a result, Whited had to undergo surgery.
At the close of Whited's evidence, Whited again moved for a judgment of acquittal, which the circuit court denied. The State then presented its closing argument; Whited waived his closing argument; and the circuit court charged the jury. The jury returned a verdict of guilty of first-degree sodomy. On August 31, 2009, Whited filed a motion for a new trial and on December 14, 2009, filed an amended motion for a new trial, in which he raised numerous ineffective-assistance-of-counsel claims. After a continuance by agreement of the parties, see Rule 24.4, Ala. R.Crim. P., the circuit court, on January 28, 2010, conducted a hearing on Whited's motion. On February 16, 2010, the circuit court denied Whited's motion and made the following entry on the case-action-summary sheet: “The court having considered testimony of witnesses and argument of counsel, [Whited's] motion for [a] new trial is hereby denied.” (C. 20.) This appeal followed.
Whited was sentenced on November 19, 2009. (C. 14.)
On October 22, 2010, this Court remanded this case to the circuit court for that court to make specific, written findings of fact as to each of Whited's allegations in his motion for a new trial. On January 20, 2011, return was made to this Court. On February 1, 2012, this Court again remanded this case to the circuit court for that court to make specific, written findings of fact as to each of Whited's allegations in his motion for a new trial. On May 3, 2012, return was made to this Court.
Whited contends that the circuit court erred in denying his motion for a new trial on the ground that his trial counsel was ineffective. Specifically, Whited contends that his trial counsel was ineffective because, he says, (1) his trial counsel was deficient in “examining witnesses, offering evidence, and failing to object to inadmissible evidence of numerous incriminating statements made by [M.H.]” and (2) his trial counsel failed to make a closing argument. (Whited's brief, p. 6.) Whited also contends that this Court should consider the cumulative effect of the ineffective-assistance-of-counsel claims when assessing whether his counsel's performance was deficient.
This Court's review of a trial court's ruling on a motion for a new trial is limited:
“ ‘ “ ‘It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge. The exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.’ ” ' Hosea O. Weaver & Sons, Inc. v. Towner, 663 So.2d 892, 895 (Ala.1995) (quoting Kane v. Edward J. Woerner & Sons, Inc., 543 So.2d 693, 694 (Ala.1989), quoting in turn Hill v. Sherwood, 488 So.2d 1357 (Ala.1986)).”
Ex parte Hall, 863 So.2d 1079, 1081–82 (Ala.2003).
“ ‘ “In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):
“ ‘ “ ‘First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.’
“ ‘ “466 U.S. at 687, 104 S.Ct. at 2064.
“ ‘ “ ‘The performance component outlined in Strickland is an objective one: that is, whether counsel's assistance, judged under “prevailing professional norms,” was “reasonable considering all the circumstances.” ’ Daniels v. State, 650 So.2d 544, 552 (Ala.Cr.App.1994), cert. denied, 514 U.S. 1024, 115 S.Ct. 1375, 131 L.Ed.2d 230 (1995) , quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. ‘A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.’ Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
“ ‘ “The claimant alleging ineffective assistance of counsel has the burden of showing that counsel's assistance was ineffective. Ex parte Baldwin, 456 So.2d 129 (Ala.1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). ‘Once a petitioner has identified the specific acts or omissions that he alleges were not the result of reasonable professional judgment on counsel's part, the court must determine whether those acts or omissions fall “outside the wide range of professionally competent assistance.” [Strickland,] 466 U.S. at 690, 104 S.Ct. at 2066.’ Daniels, 650 So.2d at 552. When reviewing a claim of ineffective assistance of counsel, this court indulges a strong presumption that counsel's conduct was appropriate and reasonable. Hallford v. State, 629 So.2d 6 (Ala.Cr.App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994); Luke v. State, 484 So.2d 531 (Ala.Cr.App.1985). ‘This court must avoid using “hindsight” to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance.’ Hallford, 629 So.2d at 9. See also, e.g., Cartwright v. State, 645 So.2d 326 (Ala.Cr.App.1994).
“ ‘ “ ‘Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.’
“ ‘ “Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). See Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).
“ ‘ “ ‘Even if an attorney's performance is determined to be deficient, the petitioner is not entitled to relief unless he establishes that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Strickland,] 466 U.S. at 694, 104 S.Ct. at 2068.’
“ ‘ “Daniels, 650 So.2d at 552” ’.
“Dobyne v. State, 805 So.2d 733, 742–43 (Ala.Crim.App.2000), aff'd, 805 So.2d 763 (Ala.2001). See also Nicks v. State, 783 So.2d 895, 918–919 (Ala.Crim.App.1999).”
Sheffield v. State, 87 So.3d 607, 633–35 (Ala.Crim.App.2010). With these principles in mind we turn to Whited's specific claims of ineffective assistance of counsel.
I.
Whited first contends that his trial counsel was ineffective because, he says, his trial counsel was deficient in examining witnesses, offering evidence, and failing to object to inadmissible evidence. Specifically, Whited contends that trial counsel's “deficient cross-examination of M.H. and [counsel's] deficient direct examination of his own witnesses, Deputy Sue Ashworth and Investigator Brad Sims, repeatedly placed before the jury the otherwise inadmissible statements of M.H. that incriminated Howard Whited.” (Whited's brief, p. 62.) Whited also contends that trial counsel's decision to offer into evidence as defense exhibits a DFS evidence submission form prepared by Deputy Ashworth and a medical report prepared by M.H.'s doctor resulted in the admission of incriminating evidence that prejudiced him at trial.
In its amended order denying Whited's motion for a new trial, the circuit court addressed Whited's challenge to his trial counsel's performance finding, in pertinent part, as follows:
“As to the allegation [that trial counsel elicited inadmissible testimony from witnesses called by the State and from witnesses called on behalf of Whited,] the Court finds that counsel for [Whited] did in fact elicit testimony from witnesses Deputy Sue Ashworth, [Department of Human Resources] Investigator Brad Sims, and the victim which was inadmissible hearsay. And the said testimony to which appellate counsel referred in the Amended Motion for a New Trial was not favorable to [Whited].
“As to the allegation [that trial counsel failed to object to inadmissible and prejudicial testimony from witnesses called by the state and from witnesses called on behalf of Whited,] the Court finds that counsel for [Whited] did not object when the State asked questions of witnesses Ashworth, Sims, the victim and [Whited] which called for testimony which could have been objected to on the basis of hearsay, relevancy and/or as testimony violative of the exclusionary rule. And the said testimony to which appellate counsel referred in the Amended Motion for a New Trial was not favorable to [Whited].
“As to the allegation [that trial counsel offered as his own exhibits two inadmissible documents that largely consisted of inadmissible hearsay that tended to incriminate Whited,] the Court finds that counsel for [Whited] did in fact offer as exhibits (1) the Alabama Department of Forensic Sciences Evidence Submission Form which was filled out by Deputy Ashworth, and (2) the report of Dr. Stradtman. Both of these exhibits contain hearsay, and some of the hearsay contained in the exhibits is not favorable to [Whited].
“However, these exhibits allowed defense counsel to show that the reports do not mention any vaginal penetration which was contrary to what the victim testified to on direct examination, and called into question the veracity of her testimony. In particular, the report from Dr. Stradtman showed that the victim had not told about any vaginal penetration. Also, the Alabama Department of Forensic Sciences Evidence Submission Form shows that there were several items collected from the victim's home which could have been, but were not, tested for DNA. Additionally, the report from Dr. Stradtman shows that the victim had a venereal disease and it was undisputed that the defendant did not have the disease.
“....
“As to the allegation [that trial counsel's own questions elicited from State witness [M.H.] was repetitious, incriminating and prejudicial,] the Court finds that counsel for [Whited] did in fact elicit from the victim testimony which was inculpatory and repetitious.
“However, the testimony referred to [above] was essentially the same testimony that the victim had testified to during direct examination by the prosecution. And while it is true that the testimony was generally not favorable to [Whited], some of the testimony showed inconsistencies in what the victim had stated to the different investigators.
“The Court does not find that the actions of defense counsel caused any substantial disadvantage to the court of the defense put forth by defense counsel. The Court does not find that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. And the court does not find that the claims [set forth above] warrant setting aside the judgment of the jury and granting a new trial.”
(Record on return to second remand, C. 3–4.)
The record indicates that in his opening statement at trial, trial counsel stated that he expected to show inconsistencies in M.H.'s version of events. To that end, trial counsel cross-examined M.H. at length regarding her version of the events in February 2005 and May 2005 and the veracity of her allegations against Whited. Counsel further established during cross-examination that it was dark during the May 2005 incident, that M.H. could not see her perpetrators' faces, and that Whited did not have the sexually transmitted disease M.H. tested positive for following the May 2005 incident.
The record indicates that trial counsel's decision to call Deputy Ashworth and Sims to testify as defense witnesses was strategic in nature. At the hearing on Whited's motion for a new trial, trial counsel testified that he called Deputy Ashworth as a witness regarding M.H.'s allegation that Whited raped her and to emphasize that M.H. was unable to visually identify her perpetrators. During his examination of Deputy Ashworth, trial counsel established that there was no DNA evidence recovered from the scene that identified Whited as one of the perpetrators, that Whited tested negative for a sexually transmitted disease, and that M.H. had no visible bruises despite her claim that she was hit several times during the May 2005 incident. Trial counsel explained that he called Sims as a witness for Sims to confirm that M.H. did not allege that Whited sodomized her or vaginally penetrated her during the initial interview, thereby attacking the veracity of M.H. and Deputy Ashworth's testimony. Further, trial counsel confirmed through Sims that there was no evidence of vaginal penetration during M.H.'s physical examination.
Regarding trial counsel's decision to submit the evidence-submission form and the doctor's report into evidence at trial, the record indicates that counsel offered into evidence the evidence-submission form to establish what items were taken from M.H.'s apartment for forensic testing and to confirm that all items taken from the apartment tested negative for DNA, semen, or any other physical evidence that could implicate Whited. The record further indicates that counsel submitted the doctor's report as evidence to attack the veracity of M.H.'s testimony and to support Whited's defense theory. The report prepared by Dr. Stradtman following M.H.'s physical examination included a transcript of the doctor's interview with M.H. during which she denied that any perpetrator had vaginally penetrated her. The report further indicated that Dr. Stradtman did not see evidence of a tear to M.H.'s hymen and that M.H. tested positive in her vagina and rectum for the sexually transmitted disease ureaplasma.
In addressing a claim that trial counsel “was ineffective for failing to effectively cross-examine several state witnesses” we have explained:
“ ‘ “[D]ecisions regarding whether and how to conduct cross-examinations and what evidence to introduce are matters of trial strategy and tactics.” Rose v. State, 258 Ga.App. 232, 236, 573 S.E.2d 465, 469 (2002). “ ‘ “[D]ecisions whether to engage in cross-examination, and if so to what extent and in what manner, are ... strategic in nature.” ’ ” Hunt v. State, 940 So.2d 1041, 1065 (Ala.Crim.App.2005), quoting Rosario–Dominguez v. United States, 353 F.Supp.2d 500, 515 (S.D.N.Y.2005), quoting in turn, United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.1987). “The decision whether to cross-examine a witness is [a] matter of trial strategy.” People v. Leeper, 317 Ill.App.3d 475, 483, 740 N.E.2d 32, 39, 251 Ill.Dec. 202, 209 (2000).' ”
Bush v. State, 92 So.3d 121, 155 (Ala.Crim.App.2009) (quoting A.G. v. State, 989 So.2d 1167, 1173 (Ala.Crim.App.2007)). Furthermore,
“ ‘[t]he decision [to call or] not to call a particular witness is usually a tactical decision not constituting ineffective assistance of counsel.’ Oliver v. State, 435 So.2d 207, 208–09 (Ala.Crim.App.1983). ‘ “ ‘This Court will not second-guess tactical decisions of counsel in deciding whether to call certain witnesses.’ United States v. Long, 674 F.2d 848, 855 (11th Cir.1982).” Oliver v. State, 435 So.2d 207, 208–09 (Ala.Cr.App.1983).' Falkner v. State, 462 So.2d 1040, 1041–42 (Ala.Crim.App.1984).”
Sheffield, 87 So.3d at 640.
In the instant case, the choices made by trial counsel in cross-examining M.H., in calling Deputy Ashworth and Sims to testify, and in moving to admit the evidence-submission form and doctor's report into evidence at trial were strategic in nature and exactly the kind of choices contemplated by well settled caselaw giving deference to strategic decisions made by counsel at trial. See Sheffield, supra; see also McGahee v. State, 885 So.2d 191, 222 (Ala.Crim.App.2003) (holding strategic decisions of trial counsel “are virtually unassailable”). Accordingly, the circuit court did not abuse its discretion in denying Whited's motion for a new trial on the basis that Whited's counsel had rendered ineffective assistance based on counsel's alleged deficient performance in examining witnesses, in offering evidence, and in failing to object to inadmissible evidence.
II.
Whited also contends that his trial counsel was ineffective because counsel waived closing argument at trial. Specifically, Whited alleges that “[t]he primary opportunity to explain the evidence ... to the jury occurs when counsel makes his closing argument at the end of the case[, and that] [t]he gravest shortcoming in [Whited's trial counsel's] representation of [Whited]—the principal error that most prejudiced [Whited]—... was [his trial counsel's] failure to make a closing argument.” (Whited's brief, p. 76.)
In addressing Whited's contention in his motion for a new trial that counsel rendered ineffective assistance by waiving closing argument, the circuit made the following findings of fact:
“[T]he Court finds that counsel for [Whited] did in fact waive the right to offer a closing argument to the jury. During the hearing on the motion for a new trial, trial counsel for [Whited] stated it was trial strategy in not offering a closing and to prevent the prosecution from further commenting on [Whited's] conduct.
“It is this Court's understanding that the law requires the Court give deference to trial counsel's decisions and strategic choices. And it is the Court's opinion that the waiver of a closing argument did not affect the outcome of the verdict. As such, the Court does not find that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. And the Court does not find that [counsel's failure to make a closing argument] warrants setting aside the judgment of the jury and granting a new trial.”
(Record on return to second remand, C. 5–6.)
The record indicates that, at the hearing on Whited's motion for new trial, trial counsel testified that his decision to waive closing argument was trial strategy. When asked specific questions regarding his strategic decisions, however, trial counsel testified that his recollection of the events surrounding Whited's case was diminished based on the sudden death of his wife less than two months after Whited's trial. Trial counsel testified that he could not recall when he made the decision to waive his closing argument but stated generally that the decision whether to have a closing argument is “part of the attorney's strategy.” (R. 349.)
“ ‘If the record is silent as to the reasoning behind counsel's actions, the presumption of effectiveness is sufficient to deny relief on [an] ineffective assistance of counsel claim.’ ” Davis v. State, 9 So.3d 539, 546 (Ala.Crim.App.2008)(quoting Howard v. State, 239 S.W.3d 359, 367 (Tex.Crim.App.2007)).
“ ‘ “An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption [of effective representation]. Therefore ‘where the record is incomplete or unclear about [counsel]'s actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment.’ ” Chandler v. United States, 218 F.3d 1305, 1314 n. 15 (11th Cir.2000) (en banc) (quoting Williams v. Head, 185 F.3d 1223, 1228 (11th Cir.1999)).' ”
Davis, 9 So.3d at 546 (quoting Grayson v. Thompson, 257 F.3d 1194, 1218 (11th Cir.2001)). Trial counsel's inability to recall the basis of his strategic decision to waive closing argument in this case limits this Court's ability to review counsel's representation at trial.
Not only are we limited in our review by trial counsel's inability to recall the basis of his strategic choice to waive closing argument, we are also limited in our review by the United States Supreme Court's holding in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the United States Supreme Court cautioned that a court must indulge a “strong presumption” that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight. 466 U.S. at 689, 104 S.Ct. 2052. Furthermore, “it is not our function to second-guess the strategic decisions made by counsel.” Smith v. State, 756 So.2d 892, 910 (Ala.Crim.App.1997), aff'd, 756 So.2d 957 (Ala.2000). Indeed, a review of the prosecutor's closing argument indicates that the prosecutor made an emotional plea to the jury that included general statements about the hideous nature of the offenses of which Whited had been charged and the plight of the victim following the incident. It is possible that trial counsel made a strategic choice to waive closing argument in order to prevent the prosecutor from returning on rebuttal and going into specific detail regarding the evidence presented at trial. It is this type of decision that the Supreme Court contemplated in Strickland when it recognized the presumption in favor of a finding of reasonable professional assistance when the challenged action “might be considered sound trial strategy.” 466 U.S. at 689, 104 S.Ct. 2052.
It is well settled that a trial counsel's decision to waive closing argument is not, in itself, ineffective assistance of counsel. See Young v. State, 887 So.2d 320 (Ala.Crim.App.2004) (holding that “ ‘waiver of closing argument, without more, does not constitute ineffective assistance of counsel’ ”); Lawhorn v. State, 756 So.2d 971 (Ala.Crim.App.1999) (holding that trial counsel was not ineffective for making a strategic decision to waive penalty-phase closing argument in order “to deprive the prosecution of labeling Lawhorn a ‘cold-blooded murderer and back-shooter’ ”); Floyd v. State, 571 So.2d 1221 (Ala.Crim.App.1989) (holding that trial counsel was not ineffective for making a strategic decision to waive closing argument “in order to deprive the prosecution of its main opportunity to argue its case to the jury”), rev'd on other grounds, 571 So.2d 1234 (Ala.1990); Behel v. State, 405 So.2d 51 (Ala.Crim.App.1981) (holding that even if trial counsel's “failure to make a closing argument is ultimately viewed as a mistake unfavorable to his client, that alone is not sufficient to demonstrate inadequate representation”).
Although Whited makes a compelling argument that his trial counsel exercised poor judgment in waiving closing argument, Whited failed to “affirmatively prove prejudice” and “show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “The prejudice prong of the Strickland test requires a showing that a different outcome of the trial probably would have resulted but for counsel's allegedly ineffective performance.” Worthington v. State, 652 So.2d 790, 796 (Ala.Crim.App.1994)(internal citations omitted). Whited has not made such a showing in this case. Accordingly, the circuit court did not abuse its discretion in denying Whited's motion for a new trial on the basis that he received ineffective assistance of counsel based on counsel's waiver of closing argument.
III.
Finally, Whited contends that “[t]he many deficiencies in [trial counsel's] overall performance, considered together, render it unfathomable” that Whited's trial produced a just result under Strickland. (Whited's brief, p. 58.) Whited contends that the facts of his case should “serve as the vehicle for the express adoption by this Court of the cumulative error doctrine as applicable in ineffective-assistance-of-counsel claims.” (Whited's brief, p. 58.)
In Brooks v. State, 929 So.2d 491 (Ala.Crim.App.2005), this Court addressed the application of the cumulative-error doctrine in ineffective-assistance claims:
“Other states and federal courts are not in agreement as to whether the ‘cumulative effect’ analysis applies to Strickland claims. As the Supreme Court of North Dakota noted in Garcia v. State, 678 N.W.2d 568, 578 (N.D.2004):
“ ‘Garcia argues that even if trial counsel's individual acts or omissions are insufficient to establish he was prejudiced, the cumulative effect was substantial enough to meet Strickland 's test. See Williams v. Washington, 59 F.3d 673, 682 (7th Cir.1995) (“In making this showing, a petitioner may demonstrate that the cumulative effect of counsel's individual acts or omissions was substantial enough to meet Strickland 's test”); but see Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir.1990) (“cumulative error does not call for habeas relief, as each habeas claim must stand or fall on its own”).’
“See also Holland v. State, 250 Ga.App. 24, 28, 550 S.E.2d 433, 437 (2001)(‘Because the so-called cumulative error doctrine is inapplicable, each claim of inadequacy must be examined independently of other claims, using the two-prong standard of Strickland v. Washington.’ (footnote omitted)); Carl v. State, 234 Ga.App. 61, 65, 506 S.E.2d 207, 212 (1998)( ‘Georgia does not recognize the cumulative error rule.’); Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir.1998)(‘Not surprisingly, it has long been the practice of this Court to individually assess claims under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Hoots v. Allsbrook, 785 F.2d 1214, 1219 (4th Cir.1986)(considering ineffective assistance claims individually rather than considering their cumulative impact.).’).
“We can find no case where Alabama appellate courts have applied the cumulative-effect analysis to claims of ineffective assistance of counsel. However, the Alabama Supreme Court has held that the cumulative effect of prosecutorial misconduct necessitated a new trial in Ex parte Tomlin, 540 So.2d 668, 672 (Ala.1988)(‘We need not decide whether either of the two errors, standing alone, would require a reversal; we hold that the cumulative effect of the errors probably adversely affected the substantial rights of the defendant and seriously affected the fairness and integrity of the judicial proceedings.’). Also, in Ex parte Bryant, 951 So.2d 724 (Ala.2002) , the Supreme Court held that the cumulative effect of errors may require reversal.
“If we were to evaluate the cumulative effect of the ineffective assistance of counsel claims, we would find that Brooks's substantial rights were not injuriously affected. See Bryant and Rule 45, Ala. R.App. P.”
Brooks, 929 So.2d at 514.
In the instant case, the circuit court noted deficiencies in counsel's performance at trial, but held that those deficiencies did not undermine the adversarial process so as to produce an unjust result. Even if we were to evaluate the errors made by trial counsel as a whole, we would conclude, as the circuit court did below, that the errors did not affect the fairness and integrity of the judicial proceedings. See Brooks, supra. Therefore, we affirm as to this issue.
For the foregoing reasons, we affirm the circuit court's judgment denying Whited's motion for a new trial alleging he received ineffective assistance of counsel at trial.
APPLICATION FOR REHEARING OVERRULED; OPINION OF DECEMBER 20, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
WINDOM, P.J., and WELCH and KELLUM, JJ., concur.
JOINER, J., dissents, with opinion, which BURKE, J., joins.
JOINER, Judge, dissenting.
I respectfully dissent. As the main opinion explains, Howard Carl Whited, on appeal, contends that his trial counsel was ineffective because, he says, among other things, his trial counsel waived closing argument. Specifically, Whited argues that “[t]he primary opportunity to explain the evidence ... to the jury occurs when counsel makes his closing argument at the end of the case[, and that] [t]he gravest shortcoming in [Whited's trial counsel's] representation of [Whited]—the principal error that most prejudiced [Whited]—... was [his trial counsel's] failure to make a closing argument.” (Whited's brief, p. 76.) I agree.
In Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), the United States Supreme Court explained the importance of closing argument as follows:
“It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries' positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 [ (1970) ].
“The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.”
422 U.S. at 862, 95 S.Ct. 2550. Although closing arguments are important, our caselaw makes it abundantly clear that closing arguments may be waived and that a trial counsel's decision to waive closing argument is not, in itself, ineffective assistance of counsel. See Young v. State, 887 So.2d 320 (Ala.Crim.App.2004) (holding that “ ‘waiver of closing argument, without more, does not constitute ineffective assistance of counsel’ ”), and Behel v. State, 405 So.2d 51 (Ala.Crim.App.1981) (holding that even if trial counsel's “failure to make a closing argument is ultimately viewed as a mistake unfavorable to his client, that alone is not sufficient to demonstrate inadequate representation”). Our caselaw, however, does not foreclose the possibility that, under certain circumstances, a trial counsel's waiver of closing argument may, in fact, be ineffective assistance of counsel.
The main opinion explains that the circuit court, in its order denying Whited's ineffective-assistance-of-counsel claim,
“made the following findings of fact:
“ ‘[T]he Court finds that counsel for [Whited] did in fact waive the right to offer a closing argument to the jury. During the hearing on the motion for a new trial, trial counsel for [Whited] stated it was trial strategy in not offering a closing and to prevent the prosecution from further commenting on [Whited's] conduct.
“ ‘It is this Court's understanding that the law requires the Court give deference to trial counsel's decisions and strategic choices. And it is the Court's opinion that the waiver of a closing argument did not affect the outcome of the verdict. As such, the Court does not find that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. And the Court does not find that [counsel's failure to make a closing argument] warrants setting aside the judgment of the jury and granting a new trial.’
“(Record on return to second remand, C. 5–6.)”
180 So.3d at 60–61. The circuit court's finding that trial counsel's decision to waive closing argument was “trial strategy ... to prevent the prosecution from further commenting on [Whited's] conduct” (record on return to second remand, C. 5), however, is not supported by the record.
Here, at the hearing on Whited's motion for a new trial Whited's trial counsel did not provide any reason—much less a strategic one—for having waived closing argument. Instead, when asked directly by Whited's appellate counsel to explain the decision to waive closing argument, Whited's trial counsel stated that he “did not recall” when he decided to waive closing argument, stated generally that whether to waive closing argument would be “part of the attorney's strategy” (R. 349), and, further, stated that waiving closing argument “would be based on everything that came out during the trial.” (R. 395.) Whited's trial counsel certainly did not testify, as the circuit court's order finds, that his decision to waive closing argument was “to prevent the prosecution from further commenting on [Whited's] conduct.” Thus, the record demonstrates that Whited's trial counsel, although directly questioned regarding his “strategy” to waive closing argument, was unable to provide a reason for doing so.
Although I recognize that the circuit court explained that Whited's trial counsel's ability to recollect the events surrounding Whited's trial were diminished by the sudden death of trial counsel's wife shortly after the trial, Whited's trial counsel was able to recall his specific strategy for other portions of Whited's trial. Specifically, Whited's trial counsel testified that his “ultimate strategy would have been that this case be continued over from trial docket to trial docket until the child turned of age and disappeared.” (R. 340.) Additionally, Whited's trial counsel testified that his approach to reach a successful conclusion for Whited during the trial was to impeach the victim's testimony and “show that [Whited] was not at the scene of the crime.” (R. 341.)
The main opinion, although concluding that “[t]he record indicates that, at the hearing on Whited's motion for a new trial, trial counsel testified that his decision to waive closing argument was trial strategy,” 180 So.3d at 61, the main opinion also recognizes that Whited's trial counsel was unable to recall the basis for his decision to waive closing argument. I agree with the main opinion's conclusion that Whited's “trial counsel's inability to recall the basis of his strategic decision to waive closing argument in this case limits this Court's ability to review counsel's representation at trial,” and that our review is also limited by the United States Supreme Court decision in Strickland because we “must indulge a ‘strong presumption’ that counsel's conduct falls within the wide range of reasonable professional assistance.” 180 So.3d at 61 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). I do not agree, however, with this Court's conclusion that the decision of Whited's trial counsel to waive closing argument “falls within the wide range of reasonable professional assistance” because, under the circumstances of this case, there exists no reasonable strategic reason to waive closing argument.
The main opinion assigns only one “possible” strategic decision for waiving closing argument in this case. Specifically, the main opinion explains that
“[i]t is possible that trial counsel made a strategic choice to waive closing argument in order to prevent the prosecutor from returning on rebuttal and going into specific detail regarding the evidence presented at trial.”
180 So.3d at 61. Although preventing the State from being able to make a rebuttal closing argument has been upheld as an effective strategic decision in both Floyd v. State, 571 So.2d 1221 (Ala.Crim.App.1989), rev'd on other grounds, Ex parte Floyd, 571 So.2d 1234 (Ala.1990), and Lawhorn v. State, 756 So.2d 971 (Ala.Crim.App.1999), those cases present circumstances not present in this case.
Specifically, in Floyd this Court addressed Floyd's claim that his trial counsel was ineffective when trial counsel waived closing argument. The circuit court in addressing Floyd's allegation concluded that
“ ‘[Floyd's] second allegation of ineffective assistance is that his trial lawyer waived closing argument at the guilt stage. [Floyd's trial counsel] did waive his closing argument pursuant to a strategic decision.
“ ‘[Floyd's trial counsel] based his decision to waive closing argument on two factors. First, [Floyd's trial counsel] had no strong arguments available to dissuade the jury from convicting his client or to persuade them to find petitioner guilty of a lesser offense. Second, the prosecution's initial closing argument was very brief and it appeared that the prosecution was saving its persuasive argument for last. [Floyd's trial counsel] thought the potential harm to his client from the prosecution's second closing argument outweighed any benefit to be obtained from [Floyd's trial counsel's] argument. [Floyd's trial counsel] had made the same decision in other cases with some success.’ ”
571 So.2d at 1227. This Court then held:
“The testimony of Floyd's trial counsel established that he made a strategic decision to forgo his closing argument in order to deprive the prosecution of its main opportunity to argue its case to the jury. The uncontradicted testimony of trial counsel was that the prosecutor's initial closing argument had been quite brief and had consisted of little more than a reading of the indictment. In light of this, Floyd's trial counsel decided that because he had no persuasive arguments, his client's interest could best be served by denying the prosecution, who had the burden of proof, of its chance to argue how that burden had been met. This is exactly the sort of strategic decision which the United States Supreme Court has held to be virtually unchallengeable in Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2065. Furthermore, Floyd did not even suggest a manner in which his trial counsel could have argued in closing that would have affected the outcome of his trial. Thus, Floyd has failed to establish a reasonable probability that, but for his lawyer's waiving his guilt-stage closing argument, the outcome of his trial would have been different. Therefore, the circuit court's findings were correct.”
Id.
Similarly, in Lawhorn—a death-penalty case—Lawhorn argued in a postconviction petition that his trial counsel was ineffective for failing to make a closing argument during the penalty phase of his trial. The circuit court in its order denying Lawhorn postconviction relief found that
“ ‘[a]t the Rule 32 hearing, Fannin[, Lawhorn's trial counsel,] testified that he made a strategic decision that he would not make a closing argument during the penalty phase of the trial. It was Fannin's understanding that if he waived closing argument that the district attorney would not be allowed to argue. Fannin did not want to give the district attorney an opportunity on rebuttal to get up and point at Lawhorn and call him a cold-blooded murderer and back-shooter. Fannin wanted to prevent the district attorney from inflaming the minds of the jury.
“ ‘....
“ ‘Trial counsel's decision to waive his closing argument did not render his performance deficient because it was a strategic decision to keep the district attorney from making a closing argument. This Court has watched district attorney Rumsey on many occasions during closing argument. He is powerful and effective during closing argument. Based on this Court's experience, it is not an unusual tactical decision in Talladega County for attorneys to waive closing argument to prevent district attorney Rumsey from making a closing argument....’ ”
Lawhorn, 756 So.2d at 987 (quoting the circuit court's order). This Court, relying on our decision in Floyd, concluded that
“we [have] held that it was not ineffective assistance of counsel when defense counsel made a strategic decision to waive closing arguments in order to deprive the prosecution of its main opportunity to argue to the jury. Similar to the situation in Floyd, Lawhorn's trial counsel did not offer closing argument in an attempt to deprive the prosecution of labelling Lawhorn a ‘cold-blooded murderer and a back-shooter.’ ‘This is exactly the sort of strategic decision which the United States Supreme Court has held to be virtually unchallengeable in Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2065.’ Floyd, 571 So.2d at 1227.”
Id.
Here, unlike in Floyd and Lawhorn, Whited's trial counsel did not provide any strategic reason for having waived closing argument. Instead, as set out above, Whited's trial counsel, at the hearing on the motion for a new trial, stated that he “did not recall” when he decided to waive closing argument, and stated generally that whether to waive closing argument would be “part of the attorney's strategy” (R. 349) and, further, stated that waiving closing argument “would be based on everything that came out during the trial.” (R. 395.) Whited's trial counsel did not testify, as the trial counsel in Floyd and Lawhorn did, that his decision to waive closing argument was to prevent the State from further commenting on Whited's conduct.
Additionally, unlike in Floyd, Whited's trial counsel had “strong arguments available to dissuade the jury from convicting” Whited. As set out in the main opinion, the State's evidence consisted of only two witnesses—M.H. and Robertson. The only evidence presented by the State establishing Whited's guilt was M.H.'s testimony that Whited “took [her] panties off” and “got on top of [her] and then he stuck his penis in [her] back side.” (R. 83.) That evidence, however, was qualified by M.H.'s statement that “[i]t was dark” in the bedroom and that she “couldn't see their faces.” (R. 81.) There also existed no physical evidence linking Whited to the offense. Additionally, the evidence presented at trial also established that M.H. contracted a sexually transmitted disease that Whited did not have. Furthermore, Whited presented the testimony of three witnesses—Jeffery Whited, Hulan Whited, and Daniel Stidham—which established a strong alibi for Whited on the date of the offense.
Finally, unlike Floyd, the prosecutor's initial closing argument was lengthy, persuasive, and emotional. During its initial closing argument, the prosecutor referenced other criminal activity that had no bearing on, or relevance to, Whited's trial. Specifically, the prosecutor argued:
“I flipped on the [television] this morning about five o'clock on Channel 13 and one of the first things I see on the news is where a convicted felon from another state was caught here in Alabama because he had molested and sodomized a thirteen year old girl in another state. I thought, ‘You can't get away from it.’ it is not something even though we hear about it and we know in the back of our mind that it goes on, it is not something we like to think about or that it goes on in our society especially here in Blount County.”
(R. 284–85.) The prosecutor then discussed how difficult it was for M.H. to relive the events of May 19, 2005, and referred to M.H. as a “hero.” The prosecutor then reiterated the evidence against Whited characterizing it as “ugly,” “nasty,” and “repulsive” and alleged that Whited “humiliat[ed] [M.H.], beat[ ] [M.H.], [and] hit[ ] [M.H.],” and, in a whisper, reiterated that Whited told M.H. that he was going to kill her if she told anybody. The prosecutor, while crying, then concluded:
“(Crying) I would ask that when you go back—I'm so sorry. I was not going to do this. When you go back in there, just remember it is what it is. And what it is—is ugly. What that man did to that child is a crime.”
(R. 295.)
Thus, there are at least three critical factual differences between Floyd and Lawhorn and the circumstances present in Whited's case. First, Whited's trial counsel could provide no strategic reason for waiving closing argument. In fact, as a judge with over 20 years' experience (including more than 18 as a trial judge), after reviewing the record in this case, I cannot think of any reason—strategic or otherwise—for Whited's trial counsel to have abandoned Whited's last chance “to marshal the evidence” in his favor in an attempt to persuade the jury of a reasonable doubt of Whited's guilt. Second, as set out above, Whited's trial counsel had “strong arguments available to dissuade the jury from convicting” Whited—especially considering that this case turned on the credibility of the witnesses. Finally, the State's initial closing argument can neither be characterized as “very brief,” nor does “it appear [ ] that the prosecution was saving its persuasive argument for last.” Floyd, supra. Instead, the State's initial closing argument was lengthy, persuasive, and emotional. Here, when Whited's trial counsel waived his closing argument, he left the jury with only the tearful, emotional plea of the prosecutor to find Whited guilty of first-degree sodomy.
Consequently, although in both Floyd and Lawhorn it may have been a reasonable strategic decision for trial counsel to forego closing argument, evaluating “ ‘the reasonableness of counsel's challenged conduct on the facts of [this] particular case, viewed as of the time of counsel's conduct,’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, I cannot agree that Whited's trial counsel's actions were within the “wide range of professionally competent assistance” when he waived closing argument, see Strickland, 466 U.S. at 689, 104 S.Ct. 2052, abandoning “the last clear chance to persuade the [jury] that there may be reasonable doubt of [Whited's] guilt.” Herring, supra.
Moreover, the main opinion's “possible” strategic reason assigned to Whited's trial counsel's waiver of closing argument is inconsistent with trial counsel's testimony at the hearing on the motion for a new trial, at which Whited's trial counsel testified he does not “trust any jury” to pick up on inconsistent statements or “subtle facts” elicited during trial testimony. (R. 368–71.) Thus, Whited satisfied the first prong set forth in Strickland.
As to the second prong of Strickland, under the circumstances presented in this case it is clear that Whited was prejudiced by his trial counsel's failure to give a closing argument. As set out above, the State's evidence in this case was not overwhelming—it contained inconsistencies, there was no physical evidence linking Whited to the offense, and the State's case was undermined by medical evidence establishing that M.H. had a sexually transmitted disease that Whited did not have. These matters, along with Whited's alibi defense, if presented to the jury in closing argument, would have “sharpen[ed] and clarif[ied] the issues” that create reasonable doubt as to whether Whited committed first-degree sodomy. Herring, supra. Failing to present to the jury any argument as to these important issues, in my opinion, undermines any confidence in the outcome of this proceeding. In other words, I believe that had Whited's trial counsel presented closing argument “there is a reasonable probability that ... the result of the proceeding would have been different”—that is, there is “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Accordingly, Whited has satisfied the second prong of Strickland. See, e.g., People v. Wilson, 392 Ill.App.3d 189, 197–202, 911 N.E.2d 413, 420–24, 331 Ill.Dec. 592, 599–603 (2009) (holding that trial counsel's waiver of closing argument was ineffective assistance of trial counsel that resulted in prejudice to the defendant); and Commonwealth v. Sparks, 372 Pa.Super. 463, 539 A.2d 887 (1988) (same).
Although I do not believe that the State's evidence was overwhelming, I do not intend to imply that the State's evidence was insufficient to convict Whited of first-degree sodomy, and, if granted a new trial, Whited could, even with competent counsel, be found guilty of first-degree sodomy. That, however, does not lessen this Court's duty to ensure that Whited received constitutionally effective counsel in this case.
Based on the foregoing reasons, I respectfully dissent.