Opinion
No. CR-04-1226.
Decided August 29, 2008.
Appeal from Lee Circuit Court (CC-99-264.60)
On Return to Remand
In 1999, Melvin Gene Hodges was convicted of capital murder, a violation of § 13A-5-40(a)(2), Ala. Code 1975, and was sentenced to death. On direct appeal, this Court initially remanded the case to the trial court for issues relating to the sentencing order and to the weighing of the aggravating and mitigating circumstances. On return to remand, we affirmed Hodges's conviction and death sentence. Hodges v. State, 856 So. 2d 875 (Ala.Crim.App. 2001). The Alabama Supreme Court affirmed our judgment. Ex parte Hodges, 856 So. 2d 936 (Ala. 2003). The United States Supreme Court denied then certiorari review. Hodges v. Alabama, 540 U.S. 986 (2003). A certificate of judgment was issued on April 2, 2003. In 2004, Hodges filed a Rule 32, Ala.R.Crim.P., petition for postconviction relief. In 2005, the circuit court summarily denied the petition. In an opinion issued on March 23, 2007, this Court held that the vast majority of the claims in Hodges's petition had been properly denied by the circuit court; however, we remanded this case for the trial court
"to either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions, see Rule 32.9(a), Ala.R.Crim.P., regarding Hodges's allegations that trial counsel failed to conduct an adequate mitigation investigation and failed to adequately present mitigation evidence at the penalty phase. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Hodges's claims, and may grant whatever relief it deems necessary."
Hodges v. State, [Ms. CR-04-1226, March 23, 2007] ___ So. 2d ___, ___ (Ala.Crim.App. 2007). This Court further directed that "[t]he return to remand shall include the circuit court's written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received and/or relied on by the court." Hodges, ___ So. 2d at ___.
On remand, Hodges conducted depositions of Floyd Likins and Larry Ray, Hodges's trial counsel; Cora Cobb, Hodges's mother; Joanne Terrell, a social worker who conducted a psychosocial evaluation of Hodges during the postconviction proceedings; Dr. Stanley Brodsky, a psychologist who reviewed numerous records and documents and conducted a psychological evaluation of Hodges during the postconviction proceedings; Enna Hodges, Hodges's sister; and Billy Hodges, Hodges's brother. The State deposed Dr. Karl Kirkland, a psychologist who reviewed numerous records and documents, including Dr. Brodsky's test results, and conducted a psychological evaluation of Hodges during the postconviction proceedings. The depositions and numerous exhibits introduced during the depositions were submitted to the circuit court as evidence in lieu of an evidentiary hearing. Hodges also submitted a brief to the circuit court in support of the claims regarding the investigation and presentation of mitigation evidence at trial, and the State submitted to the circuit court a proposed order denying Hodges's petition for postconviction relief.
On February 22, 2008, the circuit court entered a brief order denying Hodges's petition. The order stated, in relevant part:
"There are six claims asserted by [Hodges] in which he claims trial counsel failed to adequately investigate and present to the jury and Court during trial. Those claims are as follows:
"1. That [Hodges] was exposed to continual and extreme violence during his youth;
"2. That alcoholism and drug abuse plagued [Hodges] and his family;
"3. That [Hodges] was raised in extreme poverty;
"4. That [Hodges] was abandoned as a child and had no male role model;
"5. That [Hodges] constantly moved between homes;
"6. That he attempted to lead a positive life.
"The Court makes the following FINDINGS OF FACT with reference to each of those claims.
"During the mitigation phase of the trial the defense called Cora Cobb, [Hodges's] mother, to testify. To a greater or lesser extent, her testimony touched on facts to establish each of the six claims made by [Hodges] as set forth above. This testimony was not disputed by the State. No cross-examination of Mrs. Cobb was conducted by the State. By virtue of the fact that each of the 'claims' of [Hodges] was brought before the Court and the Jury, the Court finds that the mitigation investigation conducted by attorneys for [Hodges] met the requirements of the law. The Court further finds that the presentation of this testimony by attorneys for [Hodges] was adequate and met the requirements of the law.
"The Petition for Post Conviction relief is DENIED."
Citations to the record on return to remand will be designated "(Rem.)," followed by the relevant page number or numbers.
The circuit court's order fails to satisfy this Court's directions on remand and fails to satisfy Rule 32.9(d), Ala.R.Crim.P., which requires that, unless a circuit court dismisses a Rule 32 petition, the court "shall make specific findings of fact relating to each material issue of fact presented." The parties presented to the circuit court on remand testimony from eight witnesses, and that testimony comprises more than 750 pages of record. Hundreds of additional pages of documents were offered as exhibits during the depositions of Larry Ray, Dr. Brodsky, Dr. Kirkland, Joanne Terrell, and Cora Cobb. The circuit court was directed to enter specific findings of fact about the claims Hodges raised in his Rule 32 petition regarding his counsel's investigation and presentation of mitigation evidence at the penalty phase of his trial. However, the circuit court's order fails to delineate any of the voluminous testimony presented during the depositions and includes no facts regarding the scope of trial counsel's investigation and preparation for the sentencing phase of Hodges's trial or the evidence trial counsel discovered during their investigation and presented at trial as compared to the information about which Hodges's witnesses testified during their depositions. Moreover, the witnesses' testimony presented numerous conflicts. For example, Dr. Brodsky testified that the "severe abuse and deprivation" that, he said, Hodges experienced as a child caused Hodges to suffer from a dissociative disorder that "interfered with his ability to normally develop in terms of who he is. . . ." (Rem. 728.) Dr. Brodsky testified that Hodges developed an alter ego, "Baldy," who was uncaring, masterful, and in control, while Melvin, "as Melvin," was passive, relatively dependent, relatively helpless, and "was ineffectual in coping with the major problems and stresses" in his life. (Rem. 726.) Dr. Brodsky also testified that Hodges told him that "Baldy" was in control and in charge during the days before the murder, when the robbery of the Golden Corral restaurant was being planned. (Rem. 753-54.) Dr. Kirkland, however, testified that his evaluation revealed no evidence of a dissociative disorder. Dr. Kirkland further testified that Hodges told him that "Baldy" was merely a nickname he was given when he was a baby because of his appearance and that some family members continued to refer to him by that name. (Rem. 912.) The fact that "Baldy" was a nickname Hodges had had since childhood was corroborated by Hodges's mother, who told trial counsel that she had given Hodges the nickname when he was born because he was a "bald headed baby boy" (Rem. 263), and by Hodges's brother, Bill. Bill testified that Hodges "didn't like people calling him Melvin. . . . We didn't ever refer to him as Melvin; it was always Balde." (Rem. 1314.) Bill further testified that he never observed anything that caused him to believe that Hodges had two different personalities, Baldy and Melvin; rather, Bill said, Hodges simply preferred to be called by his nickname. (Rem. 1313-15.)
Hodges's nickname is sometimes spelled "Balde" in the record. (Rem. 1313-14.)
In the initial opinion reviewing the circuit court's denial of Hodges's petition, this Court affirmed the circuit court's denial of Claims I.H.6. and I.U.7. of Hodges's petition. Those claims alleged that trial counsel were ineffective for failing to investigate and present evidence as to whether Hodges was possibly brain-damaged and mentally ill. Hodges v. State, [Ms. CR-04-1226, March 23, 2007] ___ So. 2d ___ (Ala.Crim.App. 2007). To the extent Dr. Brodsky's testimony about the alleged dissociative disorder related to those claims of the petition, the testimony was irrelevant. However, to the extent Hodges presented the testimony in support of the claims regarding the abuse and abandonment he had allegedly suffered, the evidence was properly before the circuit court on remand.
Another example of the significant conflicts in the evidence is that Larry Ray, one of Hodges's attorneys, testified that, based on a review of the notes he took during pretrial interviews of Hodges and his mother, he believed that he had asked them both whether Hodges had suffered any physical harm such as beatings or whippings at the hands of parents or parental figures, other than that associated with "culture appropriate discipline," and that both had denied such physical harm. (Rem. 311, 313-14.) However, one of Hodges's primary claims in his petition was that he had repeatedly been beaten by stepfathers and grandparents, and he presented testimony from his mother (Rem. 208-09, Rem. 211-12), Joanne Terrell (Rem. 544-54), and his siblings (e.g., Rem. 1166-71, 1178, 1261, 1267, 1278) in support of those allegations.
The circuit court's conclusory statement in its order on return to remand that "[t]o a greater or lesser extent, [Hodges's mother's] testimony [at trial] touched on facts to establish each of the six claims" Hodges alleged that trial counsel should have investigated and presented (Rem. 1492) does not satisfy the requirement of this Court's instructions on remand, nor does it satisfy the requirement set out in Rule 32.9(d), Ala.R.Crim.P., regarding specific fact-findings for each claim. In addition, the circuit court's conclusion that, because Hodges's mother "touched on" certain facts about Hodges's childhood in her testimony during the penalty phase of Hodges's trial, trial counsel's mitigation investigation and their presentation of the testimony "met the requirements of the law," is a legal conclusion that is not supported by any specific facts in the court's order. The lack of specific fact-findings in the order on return to remand prevents this Court from conducting an adequate review of the circuit court's ruling, particularly in light of the extensive evidence presented on remand, some of which, as discussed above, presented substantial conflicts. See, e.g., Ex parte Grau, 791 So. 2d 345, 346-47 (Ala. 2000) (review of claims of ineffective assistance of counsel premature, where case remanded for trial court to enter specific findings of fact as to the claims).
Therefore, we have no alternative but to again remand this case to the circuit court. On remand, the circuit court is directed to enter a new order in which it makes specific, written findings of fact regarding each of the specific claims Hodges raised in his petition about trial counsel's alleged failure to conduct an adequate investigation into mitigation evidence and to adequately present mitigation evidence at the penalty phase of his trial. The court's order must include specific findings of fact about the evidence that was presented by the parties on remand and the evidence presented at trial, as well as an analysis of Hodges's allegations and the evidence presented in light of the two-pronged analysis established in Strickland v. Washington, 466 U.S. 668 (1984), for claims of ineffective assistance of counsel, so that the basis for the circuit court's ruling is clear on the record. Although the parties presented evidence on remand and additional proceedings are not required to comply with our directions, the circuit court may conduct any additional proceedings it deems necessary. Due return shall be filed with this Court within 56 days of the date of this opinion and shall include the circuit court's amended order addressing Hodges's claims and, if the circuit court conducts a hearing or receives additional evidence, a transcript of any proceedings and a copy of any additional evidence submitted.
REMANDED WITH DIRECTIONS.
Baschab, P.J., and McMillan, Wise, and Welch, JJ., concur.