His brief presented several grounds for the reversal of his conviction and death sentence, including the three grounds presented in the instant appeal: (1) “that the ‘joinder of [his] trial with his codefendant's violated [his constitutional] rights, and the trial court's refusal to grant a severance was reversible error,” Hardy v. State, 804 So.2d at 257; (2) “that the trial court denied his constitutional right to an individualized sentencing by refusing to sever his penalty phase hearing from that of Sneed,” id. at 263; and (3) “that the trial court erred by allowing a state witness [, Sergeant Dwight Hale,] to impermissibly comment on [his] post-Miranda silence,” id. at 264. The Court of Criminal Appeals affirmed his conviction and sentence, id. at 298, the Alabama Supreme Court affirmed as well, Ex parte Hardy, 804 So.2d 298, 308 (Ala.2000), and the United States Supreme Court denied certiorari review, Hardy v. Alabama, 534 U.S. 1043, 122 S.Ct. 621, 151 L.Ed.2d 543 (2001). In Ex parte Sneed, 783 So.2d 863, 870–71 (Ala.2000), the Alabama Supreme Court reversed the Court of Appeals' affirmance of Sneed's conviction and death sentence and remanded the case for a new trial on the ground that
Id.Hardy v. State, 804 So.2d 247 (Ala.Cr.App. 1999), aff'd, 804 So.2d 298 (Ala. 2000), cert. denied, 534 U.S. 1043, 122 S.Ct. 621, 151 L.Ed.2d 543 (2001).
We affirmed Hardy's conviction and death sentence on direct appeal. See Hardy v. State, 804 So.2d 247 (Ala.Crim.App. 1999), aff'd, 804 So.2d 298 (Ala. 2000). We also affirmed the denial of Hardy's Rule 32 petition.
"Hardy v. State, 804 So.2d 247, 289 (Ala.Crim.App. 1999), aff'd, 804 So.2d 298 (Ala. 2000), cert. denied, 534 U.S. 1043, 122 S.Ct. 621, 151 L.Ed.2d 543 (2001). See also Jackson v. State, 791 So.2d 979, 1015 (Ala.Crim.App. 2000), cert. denied, 791 So.2d 1043 (Ala. 2000), cert. denied, 532 U.S. 934, 121 S.Ct. 1387, 149 L.Ed.2d 311 (2001).
We consider such reliance an indication of a lack of merit of the contention the party asserts."Hardy v. State, 804 So.2d 247, 289 (Ala.Crim.App. 1999), aff'd, 804 So.2d 298 (Ala. 2000), cert. denied, 534 U.S. 1043 (2001). See alsoJackson v. State, 791 So.2d 979, 1015 (Ala.Crim.App. 2000), cert. denied, 791 So.2d 1043 (Ala. 2000), cert. denied, 532 U.S. 934 (2001).
"When requesting a change of venue, ‘[t]he burden of proof is on the defendant to "show to the reasonable satisfaction of the court that a fair and impartial trial and an unbiased verdict cannot be reasonably expected in the county in which the defendant is to be tried." ’ " Jackson v. State, 791 So. 2d 979, 995 (Ala. Crim. App. 2000) (quoting Hardy v. State, 804 So. 2d 247, 293 (Ala. Crim. App. 1999), aff'd, 804 So. 2d 298 (Ala. 2000), quoting in turn Rule 10.1(b), Ala. R. Crim. P.). "[T]he determination of whether or not to grant a motion for change of venue is generally left to the sound discretion of the trial judge because he has the best opportunity to assess any prejudicial publicity against the defendant and any prejudicial feeling against the defendant in the community which would make it difficult for the defendant to receive a fair and impartial trial."
Smith v. State, 698 So.2d 189, 206-07 (Ala.Crim.App. 1996), aff'd, 698 So.2d 219 (Ala. 1997). As this Court stated in Hardy v. State, 804 So.2d 247 (Ala.Crim.App. 1999), aff'd, 804 So.2d 298 (Ala. 2001): "Rule 16.5[, Ala.R.Crim.P.,] gives the trial court a range of sanctions that may be imposed in the event of noncompliance with the court's discovery order.
No. 01-6034 HARDY v. ALABAMA. Sup.Ct. Ala. Certiorari denied. Reported below: 804 So.2d 298. No. 01-6287 KNOWLES v. HINES, WARDEN. C.A. 10th Cir. Certiorari denied.
Appellate courts in several of our sister states have similarly held that lay opinion testimony identifying a defendant in a photograph or videotape, offered by witnesses with extensive contacts with the defendant, will assist the jury. See, e.g., Hardy v. State, 804 So.2d 247, 268-75 (Ala.Crim.App.1999) (citing the witnesses' "familiarity derived from a . . . close relationship to, or substantial and sustained contact with" the defendant as a factor placing the witnesses "in a better position to identify him than the jury" (omission in original) (quoting United States v. Pierce, 136 F.3d 770, 774 (11th Cir. 1998))), aff'd sub nom. Ex parte Hardy, 804 So.2d 298 (Ala. 2000); Commonwealth v. Pleas, 729 N.E.2d 642, 646 (Mass. App. Ct. 2000) (citing the witness's familiarity with the defendant's appearance at the time of a photograph as a factor favoring admission of lay opinion identifying the defendant); People v. Russell, 567 N.Y.S.2d 548, 553-54 (App. Div. 1991) (holding that lay opinion may assist a jury when "a sufficient foundation has been established to show that the opinion is rationally based upon the perception of the witness (e.g., the extent of the witness's familiarity with the defendant within a time frame reasonably connected with the date of the crime)"), aff'd, 594 N.E.2d 922 (N.Y. 1992).
Appellate courts in several of our sister states have similarly held that lay opinion testimony identifying a defendant in a photograph or videotape, offered by witnesses with extensive contacts with the defendant, will assist the jury. See, e.g., Hardy v. State, 804 So. 2d 247, 268-75 (Ala. Crim. App. 1999) (citing the witnesses’ "familiarity derived from a ... close relationship to, or substantial and sustained contact with" the defendant as a factor placing the witnesses "in a better position to identify him than the jury" (omission in original) (quoting United States v. Pierce, 136 F.3d 770, 774 (11th Cir. 1998) )), aff'd sub nom. Ex parte Hardy, 804 So. 2d 298 (Ala. 2000) ; Commonwealth v. Pleas, 49 Mass.App.Ct. 321, 729 N.E.2d 642, 646 (2000) (citing the witness's familiarity with the defendant's appearance at the time of a photograph as a factor favoring admission of lay opinion identifying the defendant); People v. Russell, 165 A.D.2d 327, 567 N.Y.S.2d 548, 553-54 (App. Div. 1991) (holding that lay opinion may assist a jury when "a sufficient foundation has been established to show that the opinion is rationally based upon the perception of the witness (e.g., the extent of the witness's familiarity with the defendant within a time frame reasonably connected with the date of the crime)"), aff'd, 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922 (1992).