Opinion
No. CR-05-1203.
Decided August 26, 2011.
Appeal from St. Clair Circuit Court (CC-88-115.60)
On Remand from the Alabama Supreme Court
Harvey L. Windsor appealed the circuit court's summary dismissal of his petition for postconviction relief filed under Rule 32, Ala. R. Crim. P. Windsor's petition challenged his conviction for capital murder and his resulting sentence of death. This Court affirmed the circuit court's judgment.Windsor v. State, [Ms. CR-05-1203, Aug. 7, 2009] ___ So. 3d ___ (Ala. Crim. App. 2009). Windsor petitioned the Alabama Supreme Court for certiorari review. On July 16, 2010, the Alabama Supreme Court issued an order denying Windsor's petition on all grounds except Ground IV. Ground IV, as stated in Windsor's petition, is as follows:
"IV. THIS COURT SHOULD GRANT CERTIORARI PURSUANT TO RULE 39(a) (1) (C) [, ALA. R. APP. P.,] TO EXPLAIN THAT THE COURT OF CRIMINAL APPEALS IS OBLIGATED TO ADDRESS EACH CLAIM AND ALLEGATION RAISED IN AN APPELLANT'S BRIEFS.
"In his appellate brief to the Alabama Court of Criminal Appeals, Mr. Windsor reasserted that counsel were ineffective at the penalty phase of his capital for failing to object to the prosecutor's statement: `You may disregard their mitigating circumstances.' (App. Brief, at 54; PC. 206.) As Mr. Windsor explained, this is an improper statement of the law. Despite presenting this allegation, the Court of Criminal Appeals failed to address it and Mr. Windsor explained as much in his application for rehearing and supporting brief submitted to that court. This Court should now grant certiorari pursuant to Rule 39(a) (1) (C) to explain that the Court of Criminal Appeals is required to address each claim and allegation presented in an appellant's brief."
(Windsor's petition, p. 23.)
In its order granting Windsor's petition as to Ground IV, the Alabama Supreme Court stated:
"IT IS FURTHER ORDERED that the Rules of Appellate Procedure are suspended, and that this cause is remanded to the Alabama Court of Criminal Appeals to address the claim of the petitioner in Ground IV, petition at p. 23. See Rule 54(b), Alabama Rules of Appellate Procedure."
Rule 54(b), Ala. R. App. P., states: "In each case in which the [Court of Criminal Appeals] affirms the judgment or order appealed from without writing an opinion, the court shall designate the case as a `No Opinion' case, but the court shall write a memorandum addressing the appellant's contentions and giving a reason for rejecting them." We note that there was an opinion issued in this case.
In accordance with the Alabama Supreme Court's instructions, we now address Windsor's claim. Windsor's entire argument regarding this claim in his initial brief to this Court consisted of the following paragraph:
"As in the guilt phase, trial counsel was also ineffective at sentencing by failing to object to an improper and prejudicial statement made by the prosecutor in closing argument. The prosecutor told the jury: `You may disregard their mitigating circumstances' (R1100). This is an outrageous misstatement of the law; trial counsel did not object."
(Windsor's brief, p. 54.) This paragraph also appears verbatim in Windsor's amended Rule 32 petition as a part of his second claim ("Claim II") in that petition.
Claim II in Windsor's petition included several allegations of ineffective assistance of counsel during the penalty phase. The circuit court did not specifically address Windsor's allegation, as quoted above, that his trial counsel was ineffective for not objecting to the prosecutor's statement that "[y]ou may disregard their mitigating circumstances." The circuit court dismissed Claim II, however, and cited Rule 32.6(b) and Rule 32.7(d), Ala. R. Crim. P., as the reasons for its dismissal.
In his initial brief to this Court, Windsor did not challenge the circuit court's failure to specifically address his claim that his trial counsel was ineffective for not objecting to the prosecutor's statement that "[y]ou may disregard their mitigating circumstances." Instead, Windsor waited until his rehearing application to attempt to challenge the circuit court's failure to specifically address that particular claim. Therefore, this issue is not properly before us. See Water Works Sewer Bd. of City of Selma v. Randolph, 833 So. 2d 604, 608 (Ala. 2002) ("The well-settled rule of this Court precludes consideration of arguments made for the first time on rehearing."). See also Boyd v. State, 913 So. 2d 1113, 1122-23 (Ala. Crim. App. 2003).
Windsor's challenge to this particular statement of the prosecutor is similar to his ineffective-assistance-of-counsel claim challenging his trial counsel's failure to object to the prosecutor's statement during the guilt phase that "[w]e don't have to give Harvey Windsor the benefit of the doubt." In our original consideration of Windsor's appeal of the dismissal of his Rule 32 petition, we affirmed the circuit court's rejection of Windsor's claim that the prosecutor, by stating, "[w]e don't have to give Harvey Windsor the benefit of the doubt," had misstated the law on the presumption of innocence and the State's burden of proving his guilt beyond a reasonable doubt. Specifically, we adopted the following portion of the circuit court's order:
"`In Butler v. State, 659 So. 2d 1021 (Ala. Crim. App. 1995), the Alabama Court of Criminal Appeals reviewed the prosecutor's closing statement in which he made the same comment that Windsor contends was improper. The Alabama Court of Appeals held that "viewing the prosecutor's statement in the context of the entire trial, it cannot be said that this statement affected the fairness of the trial, especially in the light of the complete instructions as to the burden of proof given by the trial court to the jury." Like the judge at Butler's trial, Judge Austin[, who presided over Windsor's trial,] thoroughly explained the concept of reasonable doubt and the State's burden of proof to the jurors in his guilt phase jury instructions. (R. 1041-1043) This Court finds that the prosecutor's comment "did not have an unfair prejudicial impact on the jury or seriously affect [Windsor's] rights." Guthrie v. State, 689 So. 2d 935, 942 (Ala. Crim. App. 1996). This allegation of ineffective assistance of counsel is without merit and is denied. Rule 32.7(d), Ala. R. Crim. P.'"
Windsor, ___ So. 3d at ___ (quoting the circuit court's order). Similarly, Windsor's allegation regarding the prosecutor's statement that "[y]ou may disregard their mitigating circumstances" is without merit. The judge who presided at Windsor's trial correctly instructed the jury on the mitigating circumstances and the jury's responsibility to weigh those circumstances against the aggravating circumstances.See, e.g., Burgess v. State, 827 So. 2d 134, 162 (Ala. Crim. App. 1998) . Moreover, the prosecutor, in other statements immediately before and after the statement Windsor challenges, made it clear to the jury that it should weigh the mitigating circumstances against the aggravating circumstances. The statement Windsor challenges was made in the following context:
We question whether the allegation is sufficiently pleaded, but even if it is, it is nonetheless without merit.
"[THE PROSECUTOR:] . . . As I mentioned earlier and the Judge will tell you, the State in this phase of this trial, is required to prove to you twelve people the existence of at least one aggravating circumstance as set out in the Criminal Code of Alabama. We are required by law to prove to you beyond a reasonable doubt that an aggravating circumstance does exist in order for you to sentence him to death. The aggravating circumstance as relied on by the State — nothing new to you and nothing you further need to hear evidence on. It is the aggravating circumstance of a murder committed during a robbery. You have already found that beyond a reasonable doubt. You found that when you found him guilty. The first hurdle the State has in getting a death penalty in this case has been surmounted. We must prove beyond a reasonable doubt the existence of one aggravating circumstance. That being murder during the commission of a robbery. You twelve people have unanimously decided that. The second thing and the last thing we must do is convince you twelve people that the aggravating circumstance that you have found outweighs any mitigating circumstance offered by the defendant. It outweighs it. It does not outnumber it. It outweighs it. That will be a call that each of you will be asked to make. The Court will tell you that at least ten of your number, in order to return a sentence of death, ten of you must find that our aggravating circumstance outweighs whatever mitigating circumstance they offer. Whatever they may argue to you, ten of your number must find it outweighs it. On your verdict form, you will be asked to return that number for a sentence of death, whether it be ten to two or eleven to one or twelve to zero. You do not have to give a reason ever. You do not have to set out what your findings are. You may disregard their mitigating circumstances. Ten of you have to agree. I expect all of you will agree that the aggravating circumstance outweighs any mitigating circumstance. What are the mitigating circumstances we are talking about here? Well, they are in the Code and they are whatever Mr. Holladay and Mr. Lowery wants to tell you about — whatever Mrs. Windsor wants to tell you about him not being a boy scout or them being poor — anything that a jury wants to consider because the defendant has that right to have you consider everything you possibly can about his life. You are not up here to guess what might have happened to Harvey Lee Windsor. This verdict is not based on supposition, just as the last one was not. You are not up here to think what might have been. You are here to decide what is right. That person over there is the person that you know that killed Rayford Howard — not what he might have done. Mr. Holladay or Mr. Lowery will tell you maybe he has no significant criminal history — sure he does. His mama admitted it. He has been sitting in prison for — she can't even remember how long. They are going to tell you a mitigating circumstance — the crime was committed by another person and Harvey Lee Windsor was a relatively minor participant. They are going to tell you maybe he had the intent to rob, but certainly he didn't have the intent to kill. You have found that. I don't care what they tell you. I don't care how many boy scout meetings he didn't go to. I don't care if he is from the poorest family in the world and never got to see a movie. I don't care if his uncle didn't take him to the ballgame. They can say anything they want to. The facts are what you know them to be. The right thing to do is sentence Harvey Lee Windsor to death. You can find all the mitigating circumstances you want to. You can go back to that jury room and spend four or five hours and dream up some of your own because that is your right as juror; but you will never convince yourself they outweigh the aggravating circumstance."
(R. 1098-1101.) When placed in context, therefore, the statement that Windsor challenges did not improperly urge the jury to disregard the trial court's instructions. Accordingly, there is no merit to Windsor's allegation that his counsel was ineffective for failing to object to the prosecutor's statement that "[y]ou may disregard their mitigating circumstances," and the circuit court properly dismissed that claim.
In our original opinion, we affirmed the circuit court's judgment. For the reasons stated in that opinion and for the additional reasons noted in this opinion, we again affirm the circuit court's judgment dismissing Windsor's Rule 32 petition.
AFFIRMED.
Welch, P.J., and Windom, Kellum, Burke, and Joiner, JJ., concur.