Opinion
No. CR-01-1748.
Decided May 27, 2005.
Appeal from Montgomery Circuit Court (CC-88-1237.60).
On Applications for Rehearing
The State of Alabama and Louise Harris have filed applications for rehearing from our decision of October 29, 2004, which applications we are overruling. We write solely for the purpose of responding to certain claims that this Court on original submission erred in reaching its decision and to acknowledge the Alabama Supreme Court's opinion in Ex parte Jenkins, [Ms. 1031313, April 8, 2005] ___ So.2d ___ (Ala. 2005), which overrules our application of the relation-back doctrine on original submission.
On October 29, 2004, this Court released a per curiam opinion affirming Louise Harris's conviction for murder made capital because it was committed for pecuniary or other valuable consideration or pursuant to a contract or for hire, see § 13A-5-40(a)(7), Ala. Code 1975, but we remanded the case for a new penalty-phase proceeding before a jury and then a judge, in accordance with §§ 13A-5-46 and 13A-5-47, Ala. Code 1975. Presiding Judge McMillan concurred; Judge Cobb concurred in the result in part and dissented in part, with an opinion; Judge Baschab concurred in the result, with opinion; Judge Shaw concurred in part and dissented in part and joined Judge Cobb's special writing; and Judge Wise concurred in part and dissented in part, with opinion. The State has filed an application for rehearing asking this Court to reconsider its ruling reversing the sentence and remanding the case for a new penalty phase and Harris has filed an application for a rehearing asking this Court to reconsider its affirmance of the conviction.
On application for rehearing, the State has essentially presented the same arguments it presented in its brief on original submission. However, the State asserts that we "ignore[ed] clearly established federal precedent, not to mention an opinion of this Court itself released just a few months before releasing this opinion, holding that residual doubt is one of the most effective (and in this case successful) strategies a defense lawyer can pursue during a capital sentencing." (State's brief on application for rehearing at p. 26.) The State quotes as follows from Jenkins v. State, [Ms. CR-97-0864, February 27, 2004] ___ So.2d ___ (Ala.Crim.App. 2004):
"`A lawyer's time and effort in preparing to defend his client in the guilt phase of a capital case continues to count at the sentencing phase. Creating lingering doubt has been recognized as an effective strategy for avoiding the death penalty. We have written about it. See, e.g., Stewart v. Dugger, 877 F.2d 851, 855-56 (11th Cir. 1989). In addition, a comprehensive study on the opinions of jurors in capital cases concluded:
"`"Residual doubt" over the defendant's guilt is the most powerful "mitigating" fact. — [The study] suggests that the best thing a capital defendant can do to improve his chances of receiving a life sentence has nothing to do with mitigating evidence strictly speaking. The best thing he can do, all else being equal, is to raise doubt about his guilt.'
"`Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think?, 98 Colum.L.Rev. 1538, 1563 (1998) (footnotes omitted); see William S. Geimer Jonathan Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am.J.Crim.L. 1, 28 (1988) ("[t]he existence of some degree of doubt about the guilt of the accused was the most often recurring explanatory factor in the life recommendation cases studied."); see also Jennifer Treadway, Note, "Residual Doubt" in Capital Sentencing: No Doubt it is an Appropriate Mitigating Factor, 43 Case W.Res.L.Rev. 215 (1992). Furthermore, the American Law Institute, in a proposed model penal code, similarly recognized the importance of residual doubt in sentencing by including residual doubt as a mitigating circumstance. So, the efforts of Tarver's lawyer, during trial and sentencing, to create doubt about Tarver's guilt may not only have represented an adequate performance, but evidenced the most effective performance in defense to the death penalty.'"
Jenkins v. State, ___ So.2d at ___ (quoting Tarver v. Hopper, 169 F.3d 710, 715-16 (11th Cir. 1999)).
There is no conflict between the instant case and Jenkins. Jenkins acknowledges that residual doubt is not a mitigating factor. Jenkins states "[The study] suggests that the best thing a capital defendant can do to improve his chances of receiving a life sentence has nothing to do with mitigating evidence strictly speaking." ___ So.2d at ___ (quoting Tarver, 169 F.3d at 715, quoting in turn Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think? 98 Colum. L. Rev. 1538, 1563 (1998)) (emphasis added.) Moreover, Jennifer Treadway, Note, "Residual Doubt" in Capital Sentencing: No Doubt it is an Appropriate Mitigating Factor, 43 Case W. Res. L. Rev. 215, 216 (1992), states that its purpose "is to advocate the use of residual doubt in capital sentencing." The note further acknowledges that the United States Supreme Court "has never recognized an Eighth Amendment right to argue this issue, leaving the decision regarding the admission of a residual doubt argument to state determination." 43 Case W. Res.L.Rev. at 216. Moreover, this Court's found reversible error on original submission not because the defense relied on residual doubt during the penalty phase, but because the defense relied on residual doubt without conducting a reasonable investigation into possible mitigating evidence before making its decision.
We have reviewed the other issues presented in the State's application for rehearing, and we conclude that the original opinion sufficiently addressed those issues. Based on the foregoing, the State's application for rehearing is overruled.
On application for rehearing, Harris asserts that we incorrectly decided many of the guilt-phase issues. We have examined that contention and in this opinion, we address one argument made on application for rehearing, but we do not change the result we initially reached.
Harris contends that in Parts IV and V of the opinion on original submission we "erroneously invoke[d] the case of Whitehead v. State, 593 So.2d 126 (Ala.Crim.App. 1991), to hold that Mrs. Harris has `waived' two claims from appellate review — the circuit court's refusal to consider the testimony of expert witness Stephen Glassroth and the evidence presented in her Motion to Supplement the Record — because the claims were not raised before the circuit court after that court made its ruling." (Harris's brief on application for rehearing at p. 23.) Assuming without determining that our reliance on Whitehead was misplaced, the outcome remains unchanged. Absent the procedural bar taken from Whitehead, Part IV of the main opinion set forth an alternative reason why Glassroth's testimony was insufficient to support a finding of ineffective assistance of counsel, and we are not persuaded by Harris's additional argument that that reasoning was incorrect. Thus, we decline at this time to consider Harris's argument concerning Whitehead, and we decline to change the result we initially reached as to Part IV.
As to Part V, we issued no alternative finding in Part V. However, some three months after the hearing on the petition Harris submitted several exhibits as attachments to the affidavits of Stuart W. Gold, counsel for Harris in her Rule 32, Ala. R. Crim. P., proceeding. In footnote 89 to Harris's petition, she states the following regarding those exhibits:
"Exhibits 1 and 2 (case action summaries of cases in which Judge Thomas overrode a jury recommendation of life without parole) were relevant to show that failure to secure additional votes increased the likelihood that Judge Thomas would override the jury's recommendation. . . . Exhibits 3 and 4 (articles and news transcripts concerning the extensive pre-trial news coverage of Mrs. Harris's case) were relevant to support her claims that trial counsel were ineffective in pursuing their motion to change venue. . . . Exhibits 25, 26, and 29 (Mr. McCarter's criminal record and plea agreement and Mr. Trimble's case action summary) were relevant to Mrs. Harris's claim that Messrs. Trimble and McCarter were ineffectively cross-examined and to the State's misleading closing argument."
(Harris's brief on appeal n. 89 at pp. 77-78.)
Though the documents were not considered by the trial court, the content of the documents was referred to in post-hearing submissions. Thus, the content was before the circuit court. Moreover, Harris was granted a new sentencing hearing; thus, her argument regarding Judge Thomas is moot. Moreover, this Court may take judicial notice of Judge Thomas's record in death-penalty cases. As to venue, the cross-examination of Trimble and McCarter, and the State's closing argument, these challenges were adequately addressed on the merits on direct appeal or were barred from Rule 32 review.
Harris's other issues were thoroughly addressed by this Court in its opinion on original submission.
In Part II.A.5. of the main opinion we stated that Harris's claim that trial counsel were ineffective for allowing the prosecutor to misstate the number of blacks on the jury was barred from review because under the principle of relation back that claim did not relate back to her original petition or to her amended petition. Recently in Ex parte Jenkins, [Ms. 1031313, April 8, 2005] ___ So.2d ___ (Ala. 2005), the Alabama Supreme Court explained that the Alabama Rules of Criminal Procedure govern the amendment of postconviction pleadings and that the civil doctrine of "relation-back" had no application in the amendment of Rule 32, Ala. R. Crim. P., petitions, and that thus, with certain exceptions, that doctrine could not be used to bar claims presented in an amendment. Thus, that Court expressly overruled that part of Harris relying on the "relation-back" doctrine. Because we also reached the merits of the claim in our opinion, however, the result we reached in Part II.A.5. of our opinion on original submission, remains the same.
APPLICATIONS OVERRULED.
McMillan, P.J., and Cobb, Baschab, and Shaw, JJ., concur. Wise, J., adheres to her original concurrence in part and dissent in part.