He identifies the following jurors: Juror H.W. was robbed at gunpoint at a convenience store; juror R.M. was the victim of a crime and knew a crime victim; and juror J.B. was a Selma police officer. Lee relies on State v. Terry, 601 So.2d 161 (Ala.Crim. App. 1992), to support his argument that counsel's failure to move to strike these jurors constituted ineffective assistance of counsel. To protect the anonymity of the jurors we are using their initials.
Counsel has a duty to exercise diligence in preparing a case for trial and in procuring witnesses. Terry v. State [ State v. Terry], 601 So.2d 161, 164 (Ala.Cr.App. 1992). "Defendant's two trial attorneys were appointed about 80 days before trial; however, they spent almost all of this time in preparing for the guilt phase.
See Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir. 1989) (jury selection process requires attorney to call upon experience, intuition, insight, and empathic abilities; the "[w]ritten records give us only shadows for measuring the quality of such efforts"), cert. denied, 494 U.S. 1012, 110 S.Ct. 1311, 108 L.Ed.2d 487 (1990). Unlike collateral attacks on verdicts, where defense counsel might have an opportunity to testify at a hearing to explain the strategic reason for particular actions, see, e.g., State v. Terry, 601 So.2d 161, 163 (Ala.Crim.App. 1992), we must rely solely on the transcript to discern the likelihood that counsel acted other than in accordance with conscious tactics. Pursuant to a recently adopted change in the Utah Rules of Appellate Procedure,
Ogle v. State, 807 S.W.2d 538, 541-42 (Mo. App. 1991)(where juror in rape case said he '[p]robably would' be able to set aside sister-in-law's rape, decision not to challenge did not constitute ineffective assistance); Childers v. State, 764 P.2d 900, 904 (Okla. Crim. App. 1988)(no ineffective assistance where unchallenged juror in rape case said she could set aside the fact a friend's daughter was raped and murdered, even though she was afraid same could happen to her daughter). Cf. State v. Terry, 601 So. 2d 161, 163-64 (Ala. Crim. App. 1992)(where counsel testified at post-conviction hearing that he did not know how to strike jurors and juror who said she would side with the State remained unchallenged, defendant received ineffective assistance); Presley v. State, 750 S.W.2d 602, 604-608 (Mo. App. [1988])(assistance ineffective where juror said he and family were crime victims and he would be partial, but counsel thought he said impartial, and failed to challenge), cert. denied, 488 U.S. 975, 109 S. Ct. 514, 102 L. Ed. 2d 549 (1988).
See Beckworth v. State, [[Ms. CR-07-0051, May 1, 2009] ___ So. 3d ___ (Ala. Crim. App. 2009)]. Lee did not allege that any of the jurors were actually biased against him and, unlike [State v.] Terry, [601 So. 2d 161 (Ala. Crim. App. 1992),] the record of the voir dire examination shows that the three jurors indicated that they had no bias against Lee nor were they biased in favor of the State. As the Mississippi Supreme Court stated in Le v. State, 913 So.2d 913 (Miss. 2005):
See Beckworth v. State, [190 So.3d 527 (Ala.Crim.App.2009) ]. Lee did not allege that any of the jurors were actually biased against him and, unlike [State v.] Terry, [601 So.2d 161 (Ala.Crim.App.1992),] the record of the voir dire examination shows that the three jurors indicated that they had no bias against Lee nor were they biased in favor of the State. As the Mississippi Supreme Court stated in Le v. State, 913 So.2d 913 (Miss.2005) :
ingleton v. Lockhart, 871 F.2d 1395, 1399–1400 (8th Cir.1989) (in capital murder case, relative of a murder victim was not actually biased and counsel's failure to challenge him was tactical); Houston v. Nelson, 404 F.Supp. 1108, 1116 (C.D.Cal.1975) (in pre-Strickland [ v. Washington, 466 U.S. 668 (1984),] case, where juror expressed ‘a particularly strong feeling against’ kidnapping, but gave assurances of ability to consider evidence fairly, counsel's decision not to challenge was legitimate trial tactic); Ogle v. State, 807 S.W.2d 538, 541–42 (Mo.App.1991) (where juror in rape case said he ‘[p]robably would’ be able to set aside sister-in-law's rape, decision not to challenge did not constitute ineffective assistance); Childers v. State, 764 P.2d 900, 904 (Okla.Crim.App.1988) (no ineffective assistance where unchallenged juror in rape case said she could set aside the fact a friend's daughter was raped and murdered, even though she was afraid same could happen to her daughter). Cf. State v. Terry, 601 So.2d 161, 163–64 (Ala.Crim.App.1992) (where counsel testified at post-conviction hearing that he did not know how to strike jurors and juror who said she would side with the State remained unchallenged, defendant received ineffective assistance); Presley v. State, 750 S.W.2d 602, 604–608 (Mo.App.[1988] ) (assistance ineffective where juror said he and family were crime victims and he would be partial, but counsel thought he said impartial, and failed to challenge), cert. denied, 488 U.S. 975, 109 S.Ct. 514, 102 L.Ed.2d 549 (1988). “Because we ‘will not second-guess a trial attorney's legitimate use of judgment as to trial tactics or strategy,’ State v. Pascual, 804 P.2d 553, 556 (Utah App.1991) (quoting State v. Wight, 765 P.2d 12, 15 (Utah App.1988))
on v. Lockhart, 871 F.2d 1395, 1399-1400 (8th Cir. 1989) (in capital murder case, relative of a murder victim was not actually biased and counsel's failure to challenge him was tactical); Houston v. Nelson, 404 F. Supp. 1108, 1116 (CD. Cal. 1975) (in pre-Strickland [v. Washington, 466 U.S. 668 (1984),] case, where juror expressed 'a particularly strong feeling against' kidnapping, but gave assurances of ability to consider evidence fairly, counsel's decision not to challenge was legitimate trial tactic); Ogle v. State, 807 S.W.2d 538, 541-42 (Mo. App. 1991) (where juror in rape case said he '[p] robably would' be able to set aside sister-in-law's rape, decision not to challenge did not constitute ineffective assistance); Childers v State, 764 P 2d 900, 904 (Okla. Crim. App. 1988) (no ineffective assistance where unchallenged juror in rape case said she could set aside the fact a friend's daughter was raped and murdered, even though she was afraid same could happen to her daughter) Cf. State v Terry, 601 So 2d 161 163-64 (Ala Crim App 1992) (where counsel testified at post-conviction hearing that he did not know how to strike jurors and juror who said she would side with the State remained unchallenged, defendant received ineffective assistance); Presley v. State, 750 S.W.2d 602, 604-608 (Mo. App. [1988]) (assistance ineffective where juror said he and family were crime victims and he would be partial, but counsel thought he said impartial, and failed to challenge), cert. denied, 488 U.S. 975, 109 S. Ct. 514, 102 L. Ed. 2d 549 (1988)."Because we 'will not second-guess a trial attorney's legitimate use of judgment as to trial tactics or strategy,' State v. Pascual, 804 P.2d 553, 556 (Utah App. 1991) (quoting State v. Wight, 765 P.2d 12, 15 (Utah App. 1988)), we hold that counsel's performance did not fall below an objective standard of reasonableness.
"Hallford v. State, 629 So.2d 6 (Ala.Cr.App. 1992). See also Spinks v. State, 564 So.2d 1043, 1046 (Ala.Cr.App. 1990); State v. Terry, 601 So.2d 161 (Ala.Cr.App. 1992). "'In giving meaning to the [constitutional requirement of effective assistance of counsel] . . . we must take its purpose — to ensure a fair trial — as the guide.
See also Sullivan v. State, 441 So.2d 130 (Ala.Cr.App. 1983); Rule 20.2, A.R.Cr.P. Additionally, in State v. Terry, 601 So.2d 161, 163 (Ala.Cr.App. 1992), this court held: "This court will not reverse a trial court's judgment based upon ore tenus testimony unless, after consideration of all of the evidence and all reasonable inferences to be drawn therefrom, it is found to be plainly and palpably wrong.