Thomas Robert Lane v. State of Alabama (Appeal from Mobile Circuit Court: CC-05-1499.60)

Rel: December 20, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections

may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals

OCTOBER TERM, 2024-2025

_________________________

CR-2022-0720

_________________________

Thomas Robert Lane

v.

State of Alabama

Appeal from Mobile Circuit Court

(CC-05-1499.60)

MINOR, Judge.

This appeal asks whether the Mobile Circuit Court erred in

summarily dismissing Thomas Robert Lane's petition for relief under

Rule 32, Ala. R. Crim. P., in which he challenged his 2016 convictions for

two counts of capital murder and his resulting death sentence. We affirm.

CR-2022-0720

On appeal, Lane argues (1) that the circuit court should have

appointed him counsel for his postconviction proceeding; (2) that the

circuit court erred in adopting the State's proposed order summarily

dismissing his petition; (3) that the circuit court erred in summarily

dismissing his claims that, for many reasons, his trial counsel were

constitutionally ineffective during the guilt and penalty phases; and (4)

that the circuit court erred in summarily dismissing his claim that the

State withheld exculpatory evidence.

FACTS AND PROCEDURAL HISTORY

On direct appeal in 2020, this Court summarized the relevant facts

and procedural history of the proceedings leading to Lane's convictions

and death sentence for the 2003 murder of his estranged wife Theresa

Lane:

"Lane was first brought to trial in 2006 for the murder

of Theresa. See Lane v. State, 80 So. 3d 280 (Ala. Crim. App.

2010). Before that trial, the State filed a motion seeking to

disqualify Lane's appointed counsel under Rule 3.7, Ala. R.

Prof. Cond., which provides that, subject to limited

exceptions, '[a] lawyer shall not act as advocate at a trial in

which the lawyer is likely to be a necessary witness.'

Following a hearing on the State's motion, the trial court

concluded that Lane's appointed counsel would be a necessary

witness for the State and thus disqualified Lane's counsel and

appointed new counsel to represent Lane. Lane, 80 So. 3d at

293. Thereafter, Lane was convicted of two counts of capital

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murder—murder made capital because it was committed

during a burglary, § 13A-5-40(a)(4), [Ala. Code 1975,] and

murder made capital because it was committed for pecuniary

gain, § 13A-5-40(a)(7). Lane, 80 So. 3d at 283. The jury

recommended by a vote of 8-4 that Lane be sentenced to life

imprisonment without the possibility of parole, but the trial

court overrode the jury's recommendation and sentenced

Lane to death. Id. at 283-84.

"On appeal, this Court held that the trial court erred by

disqualifying Lane's first appointed counsel and that 'the trial

court's unjustified removal of ... Lane's counsel violated Lane's

Sixth Amendment right to continued representation by his

counsel of choice.' Lane, 80 So. 3d at 302. In addition, the

Court held that 'a violation of a criminal defendant's Sixth

Amendment right to counsel of choice constitutes "structural

error" that cannot be harmless and that automatically

requires reversal.' Id. Thus, the Court reversed Lane's

convictions and death sentence and remanded the case for a

new trial. Id. at 302.

"On February 29, 2016, Lane was again brought to trial

on the same two charges of capital murder, i.e., capital-

murder burglary, § 13A-5-40(a)(4), and capital murder for

pecuniary gain, § 13A-5-40(a)(7). The evidence presented at

Lane's second trial tended to establish the following facts.

"At the time of Theresa's death, Lane and Theresa had

separated and were in the process of divorcing, and Theresa

was living with her friend, Pelagia Wilson, in Wilson's house.

At approximately 7:00 a.m. on October 12, 2003, Theresa

finished her shift at the Wal-Mart discount store where she

worked, and a coworker who gave Theresa a ride home

testified that Theresa arrived at Wilson's house at

approximately 7:30 a.m. At approximately 10:00 a.m., Wilson

arrived home from work and found Theresa dead in a bathtub.

Wilson testified that water was still running from the bathtub

faucet when she discovered Theresa's body, that one of the

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knobs controlling the volume of water was on '[a]ll the way'

(R. 1414) and the other was on '[j]ust [a] little bit' (R. 1415),

that Theresa's unclothed body was almost completely

submerged in water, but that the water was 'going down.' (R.

1415.) Wilson turned off the water and telephoned emergency

911.

"Dr. Leszek Chrostowski, a forensic pathologist,

performed an autopsy and concluded that Theresa's body

reflected 'hallmark[s] of drowning.' (R. 2059.) Specifically, Dr.

Chrostowski testified that he observed foam in Theresa's

mouth and nose, water in Theresa's sphenoid sinuses, and

petechial hemorrhaging in Theresa's eyes, which indicated

that Theresa had been asphyxiated. Dr. Chrostowski also

testified that he observed 'multiple bruises and contusions' on

Theresa's head, shoulders, chest, arms, and legs (R. 2058),

which, according to Dr. Chrostowski, 'indicate struggle.' (R.

2062.) In fact, Dr. Chrostowski testified, the injuries on

Theresa's arms constituted 'blunt impact injuries which can

be interpreted as defense wounds.' (R. 2069.) Dr. Chrostowski

also testified that he observed subdural hemorrhaging in the

'occipital region' of Theresa's head, which, according to Dr.

Chrostowski, 'indicate[d] [the] application of blunt force.' (R.

2064.) Thus, given the injuries to Theresa's head and 'the

contusions by the clavicle ... at the base of the neck' (R. 2065),

Dr. Chrostowski testified that it appeared Theresa 'hit the

bathtub ... with the back of her head. And then she was

pushed underneath.' (R. 2064.) Based on his observations, Dr.

Chrostowski concluded that the cause of Theresa's death was

drowning and concluded, 'without slightest doubt' (R. 2063),

that the drowning was a homicide.

"Regarding the events preceding Theresa's death, the

evidence tended to establish the following facts. Lane and

Theresa, who was a native of the Philippines, married in 1995

after Lane 'met [Theresa] on the Internet through a mail-

order bride service.' (R. 1848.) In June 2003, however, Lane

and Theresa separated, and Theresa moved out of the couple's

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mobile home and moved into Wilson's house; Lane remained

in the mobile home. Shortly thereafter, Theresa contacted

Ronnie Williams, an attorney, to assist Lane and Theresa in

obtaining what was initially an uncontested divorce.

However, disagreements subsequently arose between Lane

and Theresa regarding the division of marital property, which

delayed the divorce, and there was evidence indicating that

Lane attempted to coerce Theresa into agreeing to divorce

terms that Lane found satisfactory. Specifically, Williams

testified that Theresa owned a Nissan truck at that time and

that

" 'the truck was being used by Lane as a wedge or

carrot, so to speak, in front of [Theresa]. If she

wanted her vehicle, she signed the paperwork.

That sort of thing.

" 'In fact, it got so bad where she would go to

work, he would follow her, take the truck, leave

her stranded there. Call my office, if your client

wants the truck, tell her to sign the papers.'

"(R. 2011.) There was also evidence indicating that, while the

divorce was pending, Lane harassed Theresa by showing up

at the Wal-Mart store where she worked; that Theresa would

take different routes to work 'because [she] didn't know when

[Lane] might would try to follow [her]' (R. 1632); that Lane

left a threatening voicemail on Theresa's cellular telephone;

and that, approximately one week before Theresa was

murdered, Lane went to Wilson's house and knocked on the

door but that Wilson and Theresa would not open the door

because they were 'scared.' (R. 1411.)

"Evidence also indicated that Lane was desperate to

have the divorce finalized quickly and that, in an effort to

expedite the divorce, he repeatedly contacted Williams to

express frustration with the fact that the divorce was being

delayed and to urge Williams to prioritize the finalization of

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the divorce. As to the reason Lane wanted the divorce

finalized quickly, Williams testified:

" 'Well, a couple of times I had conversations

with [Lane]. But on one particular occasion he had

a photo. He was trying to explain to me why he was

in such a great rush to get this matter over with.

And he had a photo of a relatively young lady. I

thought extremely young. But, at any rate, a

young lady that was also from the Philippines. And

he was trying to get her to travel here to the

United States. And there was some—some issue

he had on timing. That if he didn't do something

by a certain period of time it would cost him much

more money or something adverse was going to

occur. So he was trying to explain to me that he

was trying to rush this matter through in order to

get this individual here. This was supposedly his

new bride.'

"(R. 2022-23.) Despite Lane's efforts to have the divorce

finalized quickly, Theresa refused to agree to the terms Lane

proposed, so in September 2003, Williams filed on Theresa's

behalf a complaint for divorce, a motion for a temporary

restraining order, and an instanter motion for the return of

Theresa's truck. A hearing on Theresa's instanter motion was

scheduled for October 15, 2003, but the trial of Lane and

Theresa's divorce action was not scheduled to occur until

January 7, 2004.

"On October 3, 2003, despite the fact that Lane and

Theresa's divorce was not yet finalized, Lane filed with the

United States Immigration Services a petition for alien

fiancée in which he identified Lorna Abe, a native of the

Philippines, as his fiancée. Evidence at trial established that

a person petitioning for an alien fiancée must disclose the

petitioner's and fiancée's prior marriages and must provide

certified proof of the legal dissolution of those marriages.

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Although Lane's petition disclosed Lane and Theresa's

marriage, Lane could not provide a judgment of divorce

because no such judgment existed. Nevertheless, Lane

included with his petition a 'certificate of divorce' (C. 880) that

purportedly acknowledged Lane and Theresa's divorce, but

that certificate was neither dated nor signed by the Mobile

County circuit clerk. Thus, the United States Immigration

Services sent Lane a request seeking proof of the divorce.

"There was testimony indicating that, while Lane and

Theresa were separated, Lane informed his friends and

neighbors that he was making arrangements to marry Abe

and that he was frustrated with the delay in finalizing his and

Theresa's divorce. Tony Bazzel, who was a friend of Lane's in

2003, testified that Lane visited him approximately one week

before Theresa was murdered and that Lane was 'unusually

upset about ... the divorce' that day because Theresa 'was

trying to slow [the divorce] down' and because Lane 'had

another girl in the Philippines he wanted to bring over here

and he wanted to process the papers.' (R. 1693.) Bazzel further

testified:

" 'Q. Did he say anything else to you that you

felt was unusual?

" 'A. Yeah. He said he would kill [Theresa] if

he thought he could get away with it.

" '....

" 'Q. Did he say anything else about that?

" 'A. Well, he said he'd put three bullets in her

head ... if he thought he could get away with it.

" '....

" 'Q. Did he say anything else to you at any

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other time about killing [Theresa]?

" '....

" 'A. Well, one day we were sitting at the

house. [Lane] used to come over often. Often. And

we were watching a true detective story about a

man who had three Filipino brides and he

murdered every one of them. The last one, he

drown[ed].

" 'So [Lane] looks at me. When they start

talking about the insurance money, he looks at me

and mentions that Theresa had insurance money.

And I said something to the effect what are you

planning on doing, ... put a bomb in her car. He

goes, no, I thought I'd just run her off the road or

something like that.'

"(R. 1694-95.)

"John Marshall Bowers and his wife, who were Lane's

neighbors in 2003, both testified that, in the week preceding

Theresa's death, Lane showed them a photograph of a 'young

girl that he'd done bought and paid for from the Philippines'

(R. 1328) who 'was going to be his new wife.' (R. 1685.) Bowers

testified that he asked Lane if Lane did not 'think [he]

need[ed] to get divorced first,' but, according to Bowers, Lane

replied: 'I'm not going to have to worry about that for long.' (R.

1685.) Scott Bruno and Melissa Guthrie, who were also Lane's

neighbors in 2003, testified that, the day before Theresa was

murdered, Lane came to their home and asked them if they

'would be able to watch ... his dog while he went ... to pick up

his new bride from the Philippines.' (R. 1340.) Bruno and

Guthrie also testified that Lane showed them a picture of his

'new bride' and that he told them 'he had already made plans

and had his passport and tickets and everything for her.' (R.

1341.) However, according to Bruno, Lane stated that he

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would not be able to travel to the Philippines immediately

because his 'new bride' 'was not of age,' and 'there was some

kind of financial thing. He had to pay the father of the new ...

bride.' (R. 2001.) Rather, Bruno testified, Lane stated that 'he

had to be [in the Philippines] in December' (R. 2000), despite

the fact that the trial of Lane and Theresa's divorce action was

not scheduled until January.

"Bruno and Guthrie both testified that, as they were

leaving for church at approximately 8:15 a.m. the following

day—the day Theresa was murdered—Lane emerged from his

mobile home and told them that he was going to buy coffee

and doughnuts. According to both Bruno and Guthrie, Lane

left in his green truck, which Guthrie identified in a

photograph admitted into evidence at trial. Bruno and

Guthrie also both testified that they returned home from

church at approximately 9:30 a.m. and that Lane's truck was

parked in front of his mobile home at that time. Evidence

indicated that a round-trip drive from Lane's mobile home to

Wilson's house took approximately 30 minutes. (R. 1962.)

"The trial court allowed the State to read into evidence

James Jay's testimony from Lane's first trial because Jay had

died before Lane's second trial. In 2003, Jay and Wilson lived

on the same street, and Jay testified that, at approximately

8:30 a.m. on the day Theresa was murdered—15 minutes

after Bruno and Guthrie saw Lane leave his mobile home—

Jay was '[s]tanding at [his] kitchen window looking out' when

he saw a green truck 'pull[] over [onto Jay's] side of the

property and park[].' (R. 1353.) When shown the photograph

of Lane's truck that Guthrie had identified, Jay testified that

the truck he saw on his property that morning 'looked just like

that.' (R. 1354.) According to Jay, the driver of the truck exited

the truck, crossed the street, and walked onto Wilson's front

porch. However, Jay testified that he could not see whether

the driver entered Wilson's house because, once the driver

reached the front porch, Jay's view was obscured by

shrubbery. According to Jay, the driver '[d]idn't look like no

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big man' (R. 1362) and was '[a]bout [Jay's] size' (R. 1355) (Jay

was 5'5" and weighed 120 pounds), but evidence indicated

that, at the time of Theresa's death, Lane was 5'10" and

weighed 275 pounds. However, Jay also testified that there

was a distance of approximately 115 feet between where he

was standing at his kitchen window and where Lane's truck

was parked.

"As noted, Wilson discovered Theresa's body at

approximately 10:00 a.m.—90 minutes after Jay saw near

Wilson's house the truck identified as Lane's. Law

enforcement officers with the Mobile County Sheriff's

Department responded to Wilson's 911 call and testified

regarding their observations at the scene of the murder.

Deputy Eric Leddick testified that Theresa was in the bathtub

with 'the shower curtain ... pulled down on top of [her]' (R.

1452), that Theresa was 'completely submerged underwater'

(R. 1451), that the water level in the bathtub was 'about three-

quarters of the way up the [overflow drain]' (R. 1451), that he

'could hear the water leaving the tub' (R. 1450), and that he

assumed the water was draining through the overflow drain.

(R. 1460.) Detective Shane Stringer also testified that '[t]he

water level was above [Theresa's] face and ... was over the

little [overflow] drain piece on the tub' (R. 1477) and that he

'could hear water draining, which [he] believed to be [draining

through] the little [overflow] drain.' (R. 1478.) Detective Lark

Collins, however, testified that water was also draining

through the primary drain in the bottom of the bathtub but

that Theresa's 'hair was shutting it off some, her hair being

caught in it.' (R. 1571.) In addition, Det. Stringer testified that

'there had been ... a bowl with assorted stuff on top of the

commode that was laying [sic] in the floor kind of scattered

about between the commode and the bathroom.' (R. 1476.)

According to Det. Stringer, '[w]ith the bent shower curtain

and the stuff on the floor, it appeared that there had been a

struggle.' (R. 1477.)

"Mitch McRae, a detective with the Mobile County

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Sheriff's Department, responded to the scene at

approximately 1:00 p.m., by which time Theresa's body had

been removed from the bathtub. According to Det. McRae,

Det. Collins 'labeled [Theresa's death] suspicious,' but Dr.

Chrostowski 'had just mentioned on his way out ... that

[Theresa's death] was probably medical, either a seizure or an

aneurysm of some type.'3 (R. 1842.) Thus, Det. McRae

testified, he left the scene and 'was going to try to find [Lane]

and do a death notification' and 'get a medical history on

Theresa.' (R. 1843.) According to Det. McRae, he was 'talking

about [the need to locate Lane] over dispatch, so every deputy

in Mobile County heard it' (R. 1843) and 'understood that we

were looking for [Lane's truck].' (R. 1843-44.) However, Det.

McRae testified that, before anyone located Lane, Lane

telephoned him and 'said that he had heard his wife had

passed away' and 'asked a few questions' (R. 1844), so Det.

McRae arranged to meet Lane at Det. McRae's office.

According to Det. McRae, he was waiting on Lane to arrive

when Deputy Leddick, who by that time had left Wilson's

house and was on patrol, notified him that he was following

Lane's truck and asked if the truck 'need[ed] to be stopped.'

(R. 1844.) Det. McRae testified that he instructed Deputy

Leddick to 'pull [Lane] over' and that he told Deputy Leddick

he would 'meet [him] there.' (R. 1844.)

"Regarding what occurred after he initiated the traffic

stop, Deputy Leddick testified:

" 'Before I could even finish getting out of my

patrol car, [Lane] got out of [his] truck and began

coming back to mine. I ordered him several times

to stop. And he asked several times what's wrong

with my wife, what happened to my wife.

" 'I never mentioned anything about his wife

or why I was pulling him over.

" '....

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" 'I asked him several times to place his

hands on the truck because, at that time, he

started making me nervous. He kept fidgeting

around, kept fidgeting around. And he asked me—

he said I don't even know where my wife lived.

Where did she live?

" 'Still, I never said anything about his wife.

" 'At that time, I placed him in handcuffs and

detained him by the back of the truck until Det.

McRae arrived.'

"(R. 1457-58.) There is no indication or allegation that Deputy

Leddick searched Lane's person or Lane's truck while waiting

on Det. McRae to arrive, but Deputy Leddick did testify that

he observed 'a wet ... bath towel' in the passenger's cab of

Lane's truck. (R. 1458.) David Phillips, an investigator with

the Mobile County Sheriff's Department, also responded to

the scene of the traffic stop and observed that Lane, who was

wearing shorts, 'had some scratch marks on the bottom of his

right leg.' (R. 1500.)

"Approximately 15 to 20 minutes after Deputy Leddick

initiated the traffic stop, Det. McRae arrived at the scene. At

that time, Lane was standing near the rear of his truck and

was still handcuffed. Det. McRae testified that he

'immediately took the handcuffs off' Lane and that he asked

Deputy Leddick 'if everything was okay,' and, according to

Det. McRae, Deputy Leddick stated that Lane 'was just acting

a little weird so [he] went ahead and cuffed [Lane].' (R. 1845.)

Det. McRae testified that, after he uncuffed Lane, he 'invited

[Lane] to the front seat of [Det. McRae's] car, and [they] sat

down in the car.' (R. 1845.) According to Det. McRae, Lane

was not under arrest at that time, but Det. McRae 'went

ahead and read [Lane] his Miranda[4] rights just out of

caution' (R. 1846), and Lane signed a form waiving those

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rights and agreed to speak with Det. McRae.

"Det. McRae testified that Lane provided him with

general background information regarding Lane and

Theresa's marriage, their pending divorce, and Theresa's

medical history, and Det. McRae also testified that Lane

'admitted ... that he had met another woman from the

Philippines ... and [was] interested in her and ha[d] been

corresponding with her through the Internet.' (R. 1850.)

Regarding Lane's recent contact with Theresa, Det. McRae

testified that Lane stated he 'hadn't seen or heard from

[Theresa] in over three weeks' (R. 1850) and that he '[s]everal

times ... repeated that he [did not] know where [Theresa] was

living.' (R. 1851.) However, as noted, Wilson testified that

Lane had been to her house approximately one week before

Theresa was murdered. Lane's statement was also

inconsistent with other evidence presented at trial in that,

although Lane's neighbors testified that Lane had left his

mobile home at approximately 8:15 a.m. that day, Det. McRae

testified that Lane claimed he had not awakened until 9:00

a.m. and that he had not left his mobile home until sometime

between 11:00 and 11:30 a.m. Specifically, Det. McRae

testified:

" 'Q. Okay. Did [Lane] say what he had done

that morning?

" 'A. Yeah. I asked him about how his day

started. He said he woke up at about 9 o'clock. He

stayed in his residence until 11 o'clock where he

emailed his friend in the Philippines until

approximately 11:30, at which time he left to go

visit friends at Green Park trailer park off of

Airport Boulevard.

" 'Q. And who did you later determine lived

there?

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" 'A. That would be Bing and Tony Bazzel.

" 'Q. Okay. And what did he say he did at the

Bazzels'?

" 'A. He said once he arrived at his friends'

house, he went for a walk alone for approximately

one hour where he stopped and purchased some

items at a garage sale.

" 'When he returned to his friends' house,

Lane overheard—he overheard a conversation on

the phone with Bing. He saw that Bing became

upset and he questioned her what was wrong. Bing

refused to tell him, so he left in his vehicle and

called a friend.

" 'Q. Okay. Who did he call?

" 'A. Willie Silver.

" 'Q. And what did Willie—what did he say

Willie told him?

" 'A. Willie told him that Theresa had been

found in a bathtub dead, at which time Lane

returned back to Bing's house to question her.

" 'Q. Okay. And so did Bing tell him

anything?

" 'A. Bing confirmed that Theresa was dead

but would not tell him any further information.

That was it.

" 'Q. All right. And after you took this

statement, did you let Tom Lane go?

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" 'A. Yes.'

"(R. 1852-53.) Bazzel corroborated Lane's statement that

Lane had visited the Bazzels on the morning Theresa was

murdered. According to Bazzel, Lane came to the Bazzels'

home at approximately 10:00 a.m. and appeared 'a little

nervous' and 'just want[ed] to walk around,' so Lane 'went for

a walk in the parking lot.' (R. 1696.) Bazzel also corroborated

Lane's statement that, after Lane returned from the walk,

Bazzel's wife received a telephone call that upset her and that

Lane 'got fidgety' (R. 1697) when he realized that Theresa was

the subject of the call.

"Evidence indicated that Theresa had a $150,000 life-

insurance policy through her employer, Wal-Mart. Ronald

Pierce, a chaplain with the Mobile County Sheriff's

Department, testified that he received a telephone call from

Lane on the afternoon Theresa was murdered and that Lane

asked if Pierce knew Theresa was dead, if Pierce had been to

Wilson's house, if Pierce had observed 'anything out of place'

in the house, and if Pierce 'kn[e]w what was the cause of

[Theresa's] death.' (R. 1802.) Pierce testified that he told Lane

he had been to Wilson's house but that he also told Lane he

did not know if anything was 'out of place' or what caused

Theresa's death. According to Pierce, Lane then asked 'if there

was some way [Pierce] could help [Lane] get the papers to get

the insurance from Wal-Mart, the life insurance.' (R. 1803.)

Pierce testified that he told Lane he did not know how to

collect the life-insurance proceeds but that he 'would check

and see if there was some way that [he] could do something to

help.' (R. 1803.) However, evidence indicated that, rather than

waiting on Pierce's assistance, Lane went later that day to the

Wal-Mart store where Theresa worked and inquired about

collecting the proceeds of Theresa's life-insurance policy.

Unbeknownst to Lane, however, approximately three months

earlier Theresa had changed the beneficiary of the policy from

Lane to her sister, and Deborah Gabel, the human-resources

manager at Wal-Mart, informed Lane that he was not the

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beneficiary of Theresa's policy. According to Gabel, Lane's

demeanor was 'fine until [she] told him that he wasn't the

beneficiary,' at which point, Gabel testified, Lane 'became

irate.' (R. 2096.)

"Testimony from Lane's neighbors indicated that, on the

day Theresa was murdered, Lane attempted to establish an

alibi. Bowers testified that Lane came to his home that night

and testified as follows regarding his conversation with Lane

at that time:

" 'Q. What did [Lane] say that night when he

came over and told you that his wife was dead?

" 'A. .... [Lane] told me that ... Theresa was

dead. And then he had asked me ... if I had seen

him that day. That was his first thing. He asked

me had I seen him that day and I said no. And then

he told me that Theresa had died.

" 'Q. Okay. Did he tell you how she died?

" 'A. He said ... she either had an aneurysm

or was held under water and drown[ed].

" 'Q. And describe how [Lane] was acting

when he said that his wife was dead.

" 'A. Pretty much as he always did. It just ...

wasn't any concern or care. There was no shock.

" 'Q. After you told [Lane] that you didn't see

him that day, did he say anything else or ask you

anything else?

" 'A. Yes, ma'am. He asked me to ... say that

I saw him that morning. And I told him, no, I'm

not going to do that because I'm not going to lie for

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you or anybody else.

" 'Q. Okay. And did he say why he wanted you

to lie for him?

" 'A. He said that he would probably be the

first person that they looked into to her death.'

"(R. 1686-87.) Bruno and Guthrie also testified that Lane

came to their home on the day Theresa was murdered and

informed them of Theresa's death. According to Guthrie, Lane

'was a little nervous' (R. 1345) and 'reiterate[d] about, you

know, [he] did go and get the coffee and donuts. Remember?'

(R. 1346.) Guthrie testified that Lane 'mention[ed] that ... he

was acting that way because he thought maybe a family

member ... would have accused him or thought that he had

done it.' (R. 1349.) Susan Hodges was also Lane's neighbor in

October 2003 but testified that she had never spoken with

Lane until the day Theresa was murdered. However, despite

the fact that she and Lane had never met, Hodges testified

that Lane came to her home on the day Theresa was murdered

and informed her that Theresa had died. According to Hodges,

Lane then asked her if she had seen him earlier that morning,

and she replied that she had not. As to what occurred next,

Hodges testified:

" 'Q. And what happened then?

" 'A. He said he had left that morning and

went to the corner store and got some donuts and

... he said I came straight back. And I have a half

box of doughnuts left over here if y'all would like

them and I said no thanks.

" 'Q. And did you ask him why he was asking

you that?

" '....

17

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" 'A. He said that he was probably going to

need an alibi because they usually go after the

husband first.'

"(R. 1734-35.)

"The day after Theresa's death, Det. McRae went to the

Alabama Department of Forensic Sciences to be present

during the autopsy in which Dr. Chrostowski concluded that

Theresa's death was a homicide. Det. McRae testified that he

then began interviewing 'a lot of people,' including Lane's

neighbors, Wilson, the Bazzels, 'people from Wal-Mart,' and

Jay, who had seen Lane's truck near Wilson's house on the

morning Theresa was murdered, and Lane was arrested later

that afternoon. (R. 1857.)

"On October 15, 2003, Det. McRae obtained a search

warrant to search Lane's mobile home and truck and seized,

among other items, a chisel from Lane's truck. Scott Milroy,

who was admitted as an expert in the field of 'firearms and

toolmarks examiner' (R. 1594), examined the chisel found in

Lane's truck and testified that the 'several grooves, valleys,

nicks ... within the blade of th[e] chisel ... gives it a very

unique quality' (R. 1599) and that, as a result, it 'would be

hard to duplicate [that] chisel.' (R. 1617.) Milroy also

examined Wilson's front door and determined that there were

'impressed toolmark[s]' (R. 1609) on the door that had been

created by someone who used a tool to 'g[e]t underneath th[e]

moulding and press[] on that wooden door.' (R. 1617.) After

comparing the unique characteristics of the chisel found in

Lane's truck with the nature of the toolmarks on Wilson's

front door, Milroy concluded that 'there's not another chisel in

the world' that could have created the marks on Wilson's front

door. (R. 1617.) The day after Theresa was murdered, law

enforcement officers recovered in the front yard of Wilson's

house 'a piece of wood that was later determined to have come

off the front door.' (R. 1933.)

18

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"Det. McRae also recovered a computer that had been

removed from Lane's mobile home before the search of the

home.5 An analysis of the hard drive of that computer

indicated that, at 9:45 a.m. on the day Theresa was murdered,

the background on the computer monitor had been changed

from a photograph of Lane and Theresa to a pornographic

photograph of Abe lying on her back with her breasts and

genitals exposed, and the photograph of Abe was admitted

into evidence.

"As a result of his investigation, Det. McRae also learned

that an employee at a gas station located 'probably a quarter

of a mile' (R. 1877) from Lane's mobile home had reported that

Lane came into the gas station sometime between 8:00 a.m.

and 11:00 a.m. on the day Theresa was murdered. However,

Det. McRae testified that he reviewed video surveillance of

the gas station that had been recorded between 7:30 a.m. and

12:00 p.m. that day and that Lane 'was not in that store.' (R.

1880.)

"Wayne Dueitt, who at the time of trial was an inmate

in the Mobile County Metro Jail, testified that he was Lane's

cellmate in October 2003 and that Lane confessed to him that

'he drown[ed] his wife in the bathtub' (R. 1814) and that he

had 'used a screwdriver' to gain entry into Wilson's house. (R.

1814.) Dueitt also testified that Lane told him Theresa had

'struggled and she scratched his legs up' and that he had 'seen

the scratches on [Lane's] legs.' (R. 1816.) Bruno, who, as

noted, was Lane's neighbor in October 2003, was also

subsequently incarcerated with Lane and also testified that

Lane confessed to murdering Theresa. Specifically, Bruno

testified that, while he and Lane were discussing Lane's case,

Lane 'mentioned to [Bruno] that ... he had told a few people in

... the chapel, church, that he did it. But he wasn't too

concerned ... about it because it was in the sanctity of the

church and they couldn't use it against him.' (R. 2006.)

19

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"In addition to allowing the State to read into evidence

a transcript of Jay's testimony from Lane's first trial, the trial

court also allowed the State to read into evidence the

testimony of four other witnesses who testified at Lane's first

trial but who were unavailable at Lane's second trial—Lane's

father, Aubrey Mixon, John LaPointe, and Iris Raley.6 Lane's

father testified that, approximately three weeks before

Theresa was murdered, Lane visited him in North Carolina

and that, during that visit, Lane stated: '[I]f I thought I could

do what Peterson7 did and get away with it, I'd kill [Theresa].'

(R. 1287.) Mixon testified that, in August 2003, he was

employed at a Nissan automobile dealership in Mobile and

that Lane came to the dealership and 'wanted to know where

to put a repossession car because he was turning in his wife's

car.' (R. 1296.) According to Mixon, he stated to Lane that 'you

can't live with [women] and you can't live without them' (R.

1296), to which Lane replied: '[T]he only good woman is a dead

one.' (R. 1297.) LaPointe testified that he was a private

investigator, that Lane contacted him in July 2003 and told

him that Lane and Theresa 'were separated and ... were in the

middle of a divorce' (R. 1677), and that Lane wanted him 'to

find out where [Theresa] was, follow her.' (R. 1677.) However,

LaPointe testified that he declined Lane's request because

'[t]here was too much emotion,' and he 'felt it would have been

best not to get involved in that case.' (R. 1678.)

"Raley, Wilson's stepdaughter, testified that Wilson

telephoned her after discovering Theresa's body and that she

immediately went to Wilson's house. Raley testified that she

remained with Wilson until law enforcement officers left, at

which point Raley and Wilson also left. Raley testified that,

before leaving, she locked the locking mechanism on the

doorknob of the front door, and, according to Raley, the chain

lock on the front door was 'always' locked (R. 1373) because

'[w]e always went in and out the back door, kept the front door

locked.' (R. 1370.) According to Raley, she and Wilson

returned to the house with detectives the following day and

entered the house through the back door. Regarding what she

20

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observed upon entering Wilson's house that day, Raley

testified:

" 'When I was sitting in the living room, I was just

looking around and I looked up at the [front] door.

And, of course, being very familiar with the home,

going through there almost every day of my life,

we always kept a chain on top of the door. And I

noticed that the chain was off and the side plate,

part of it was missing. It was broken.'

"(R. 1369.) Raley further testified that 'the chain ... looked ...

a little splintery in places, like ... an object had ... fooled with

it or something. It didn't look normal.' (R. 1372.)

"At the close of evidence, the jury convicted Lane of

capital murder-burglary, § 13A-5-40(a)(4), and capital murder

for pecuniary gain, § 13A-5-40(a)(7). … [A]t the sentencing

hearing the jury recommended by a vote of 11-1 that Lane be

sentenced to death, and the trial court followed the jury's

recommendation and sentenced Lane to death.

"_______________

"3As noted, Dr. Chrostowski ultimately concluded that

Theresa's death was a homicide after he conducted the

autopsy.

"4Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.

Ed. 2d 694 (1966).

"5At Lane's first trial, there was evidence indicating

that, the day after Theresa was murdered, Lane's divorce

attorney, Buzz Jordan, had instructed Lane to bring the

computer to Jordan's office and that law enforcement officers

had subsequently obtained the computer from Jordan. See

Lane, 80 So. 3d at 288. No such evidence was presented at

Lane's second trial, however. Rather, Det. McRae merely

21

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testified that the computer 'was missing' (R. 1875) when

Lane's mobile home was searched but that '[l]ater on we were

able to recover it.' (R. 1876.)

"6Lane's father was unavailable by virtue of his lack of

memory and multiple medical conditions that prevented him

from traveling to Mobile from his home in North Carolina.

Mixon and LaPointe were deceased by the time of Lane's

second trial. Neither the record nor the parties' briefs clarify

why Raley was unavailable, although it appears Raley might

also have been deceased (R. 217), but Lane conceded at trial

and concedes on appeal that Raley was unavailable. (C. 562-

63; Lane's brief, at 13.)

"7In 2004, Scott Peterson was convicted for murdering

his pregnant wife and was sentenced to death, and the case

generated widespread publicity."

Lane v. State, 327 So. 3d 691, 702-12 (Ala. Crim. App. 2020).

At the penalty phase, the jury recommended, by an 11-1 vote, a

death sentence. The circuit court followed the jury's recommendation and

sentenced Lane to death. The circuit court found that two aggravating

circumstances existed: that Lane committed the offense while engaged in

the commission of a burglary, § 13A-5-49(4), Ala. Code 1975, and that

Lane committed the offense for pecuniary gain, § 13A-5-49(6), Ala. Code

1975. (Trial C. 94-95.)1 The circuit court found that two statutory

1"Trial C." refers to the clerk's record in Lane's direct appeal from

his 2016 trial; "Trial R." refers to the reporter's transcript in the direct

appeal. See Rule 28(g), Ala. R. App. P. See also Hull v. State, 607 So. 2d

22

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mitigating circumstances existed: that Lane had no significant criminal

history, § 13A-5-51(1), Ala. Code 1975, and that Lane was under extreme

mental or emotional disturbance, § 13A-5-51(2), Ala. Code 1975. (Trial

C. 97.) The circuit court found and considered, as a nonstatutory

mitigating circumstance, evidence about Lane's childhood problems.

(Trial C. 100.)

This Court affirmed Lane's convictions and death sentence. Lane,

327 So. 3d 691. The Alabama Supreme Court denied certiorari review.

Ex parte Lane (No. 1191036, Nov. 20, 2020), cert. denied Lane v.

Alabama, 142 S. Ct. 126 (2021). This Court issued a certificate of

judgment on November 20, 2020, making Lane's convictions and death

sentence final.

On November 16, 2021, Lane timely filed a postconviction petition

under Rule 32, Ala. R. Crim. P., challenging his convictions and

sentence.2 (C. 93.) Lane also moved for the appointment of counsel. (C.

369, 371 n.1 (Ala. Crim. App. 1992) (noting that this Court may take

judicial notice of its own records).

2Although he paid the filing fee on November 16, 2021, he requested

a waiver of the fee the next day. (C. 5, 95.) See Rule 32.6(a), Ala. R. Crim.

P. ("A proceeding under this rule is commenced by filing a petition,

verified by the petitioner or the petitioner's attorney, with the clerk of the

23

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99.) On April 5, 2022, the State responded to the petition and moved to

summarily dismiss it. (C. 134.) On April 18, 2022, the circuit court

summarily dismissed the petition. (C. 276.) Lane, through counsel,

moved for reconsideration and timely appealed.3 (C. 313, 348.)

STANDARD OF REVIEW

" '[Lane] has the burden of pleading and

proving his claims. As Rule 32.3, Ala. R. Crim. P.,

provides:

" ' "The petitioner shall have the burden

of pleading and proving by a

preponderance of the evidence the facts

necessary to entitle the petitioner to

relief. The state shall have the burden

of pleading any ground of preclusion,

but once a ground of preclusion has

been pleaded, the petitioner shall have

the burden of disproving its existence

by a preponderance of the evidence."

" ' "The standard of review this Court uses in

evaluating the rulings made by the trial court [in

court. … [The petition] shall also be accompanied by the filing fee

prescribed by law or rule in civil cases in the circuit court unless the

petitioner applies for and is given leave to prosecute the petition in forma

pauperis.").

3The circuit court did not rule on the motion for reconsideration

before it lost jurisdiction to modify its judgment dismissing the petition.

Thus, the motion was denied by operation of law. Matthews v. State, 363

So. 3d 1028, 1031 (Ala. Crim. App. 2021).

24

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a postconviction proceeding] is whether the trial

court abused its discretion." Hunt v. State, 940 So.

2d 1041, 1049 (Ala. Crim. App. 2005). However,

"when the facts are undisputed and an appellate

court is presented with pure questions of law, [our]

review in a Rule 32 proceeding is de novo." Ex

parte White, 792 So. 2d 1097, 1098 (Ala. 2001).

"[W]e may affirm a circuit court's ruling on a

postconviction petition if it is correct for any

reason." Smith v. State, [122] So. 3d [224], [227]

(Ala. Crim. App. 2011).

" '… [Some] of the claims raised by [Lane]

were summarily dismissed based on defects in the

pleadings …. When discussing the pleading

requirements for postconviction petitions, we have

stated:

" ' "The burden of pleading under

Rule 32.3 and Rule 32.6(b) is a heavy

one. Conclusions unsupported by

specific facts will not satisfy the

requirements of Rule 32.3 and Rule

32.6(b). The full factual basis for the

claim must be included in the petition

itself. If, assuming every factual

allegation in a Rule 32 petition to be

true, a court cannot determine whether

the petitioner is entitled to relief, the

petitioner has not satisfied the burden

of pleading under Rule 32.3 and Rule

32.6(b). See Bracknell v. State, 883 So.

2d 724 (Ala. Crim. App. 2003)."

" 'Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim.

App. 2006).

" ' " 'Rule 32.6(b) requires that the

25

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petition itself disclose the facts relied

upon in seeking relief.' Boyd v. State,

746 So. 2d 364, 406 (Ala. Crim. App.

1999). In other words, it is not the

pleading of a conclusion 'which, if true,

entitle[s] the petitioner to relief.'

Lancaster v. State, 638 So. 2d 1370,

1373 (Ala. Crim. App. 1993) [,

overruled on other grounds by Robey v.

State, 950 So. 2d 1235 (Ala. Crim. App.

2006)]. It is the allegation of facts in

pleading which, if true, entitle a

petitioner to relief. After facts are

pleaded, which, if true, entitle the

petitioner to relief, the petitioner is

then entitled to an opportunity, as

provided in Rule 32.9, Ala. R. Crim. P.,

to present evidence proving those

alleged facts."

" 'Boyd v. State, 913 So. 2d 1113, 1125 (Ala. Crim.

App. 2003). "[T]he procedural bars of Rule 32[.2,

Ala. R. Crim. P.,] apply with equal force to all

cases, including those in which the death penalty

has been imposed." Burgess v. State, 962 So. 2d

272, 277 (Ala. Crim. App. 2005).

" 'Some of [Lane's] claims were also

dismissed based on his failure to comply with Rule

32.7(d), Ala. R. Crim. P. In discussing the

application of this rule we have stated:

" ' "[A] circuit court may, in some

circumstances, summarily dismiss a

postconviction petition based on the

merits of the claims raised therein.

Rule 32.7(d), Ala. R. Crim. P., provides:

26

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" ' " 'If the court

determines that the petition

is not sufficiently specific,

or is precluded, or fails to

state a claim, or that no

material issue of fact or law

exists which would entitle

the petitioner to relief

under this rule and that no

purpose would be served by

any further proceedings,

the court may either

dismiss the petition or

grant leave to file an

amended petition. Leave to

amend shall be freely

granted. Otherwise, the

court shall direct that the

proceedings continue and

set a date for hearing.'

" ' " ' "Where a simple reading of the

petition for post-conviction relief shows

that, assuming every allegation of the

petition to be true, it is obviously

without merit or is precluded, the

circuit court [may] summarily dismiss

that petition." ' Bishop v. State, 608 So.

2d 345, 347-48 (Ala. 1992) (emphasis

added) (quoting Bishop v. State, 592

So. 2d 664, 667 (Ala. Crim. App. 1991)

(Bowen, J., dissenting)). See also

Hodges v. State, 147 So. 3d 916, 934

(Ala. Crim. App. 2007) (a

postconviction claim is 'due to be

summarily dismissed [when] it is

meritless on its face')[, rev'd on other

grounds, Ex parte Hodges, 147 So. 3d

27

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973 (Ala. 2011)]."

" 'Bryant v. State, 181 So. 3d 1087, 1102 (Ala.

Crim. App. 2011).'

"Washington v. State, 95 So. 3d 26, 38–39 (Ala. Crim. App.

2012).

"….

"Finally, '[a]lthough on direct appeal we reviewed

[Lane's] capital-murder conviction for plain error, the plain-

error standard of review does not apply when an appellate

court is reviewing the denial of a postconviction petition

attacking a death sentence.'[4] James v. State, 61 So. 3d 357,

362 (Ala. Crim. App. 2010) (citing Ex parte Dobyne, 805 So.

2d 763 (Ala. 2001)). With these principles in mind, we review

the claims raised by [Lane] on appeal."

Marshall v. State, 182 So. 3d 573, 580-82 (Ala. Crim. App. 2014).

DISCUSSION

On appeal, Lane argues that the circuit court erred in summarily

dismissing his petition. We address his arguments in turn.

I. MOTION FOR APPOINTED COUNSEL

Lane argues that the circuit court erred when it did not appoint

counsel to represent him in his Rule 32 proceedings. Lane asserts that,

4Effective January 12, 2023, Rule 45, Ala. R. App. P., no longer

requires this Court to conduct plain-error review in cases involving the

death penalty.

28

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within days of the State's submitting its answer and a proposed order,

"the circuit court judge, who did not preside over the trial,

took the unprecedented step in a death penalty case in

Alabama of refusing to appoint counsel pursuant to Rule

32.7(c) to respond to the State's motion, or to even rule on Mr.

Lane's motion for counsel, before adopting the State's

proposed order in its entirety. The lower court did this

without holding any hearing or giving Mr. Lane notice or

opportunity to rebut the State's arguments or to amend the

petition to remedy any purported deficiencies."

(Lane's brief, pp. 13-14.)

With one exception not applicable here,5 there is no automatic right

to counsel during postconviction proceedings:

" 'The United States Supreme Court has made it clear that

neither the Eighth Amendment nor the Due Process Clause of

the United States Constitution requires states to appoint

counsel for inmates, including death-row inmates, who seek

post-conviction relief in state courts.' Ex parte Jenkins, 972

So. 2d 159, 164 (Ala. 2005). See also McMillan v. State, 258

So. 3d 1154, 1185-86 (Ala. Crim. App. 2017) ('The right to

5The Fair Justice Act, § 13A-5-53.1(b), Ala. Code 1975, provides:

"In all cases where the defendant is deemed indigent or as the

trial judge deems appropriate, the trial court, within 30 days

of the entry of the order pronouncing the defendant's death

sentence, shall appoint the defendant a separate counsel for

the purposes of post-conviction relief under this section."

That subsection became effective August 1, 2017—after Lane was

sentenced to death—and thus does not apply here. § 13A-5-53.1(j), Ala.

Code 1975 ("This section shall apply to any defendant who is sentenced

to death after August 1, 2017.").

29

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counsel does not extend to postconviction proceedings.'), and

Hamm v. State, 913 So. 2d 460, 473 (Ala. Crim. App. 2002)

(holding that Rule 32 petitioner had no right to counsel in

Rule 32 proceedings). Indeed, the United States Supreme

Court has held that states are not constitutionally required to

provide an avenue for postconviction review of a conviction

and sentence, much less to provide counsel during such

proceedings.

" 'Postconviction relief is even further removed

from the criminal trial than is discretionary direct

review. It is not part of the criminal proceeding

itself, and it is in fact considered to be civil in

nature. See Fay v. Noia, 372 U.S. 391, 423-424, 83

S. Ct. 822, 841, 9 L. Ed. 2d 837 (1963). It is a

collateral attack that normally occurs only after

the defendant has failed to secure relief through

direct review of his conviction. States have no

obligation to provide this avenue of relief, cf.

United States v. MacCollom, 426 U.S. 317, 323, 96

S. Ct. 2086, 2090-2091, 48 L. Ed. 2d 666 (1976)

(plurality opinion), and when they do, the

fundamental fairness mandated by the Due

Process Clause does not require that the State

supply a lawyer as well.'

"Pennsylvania v. Finley, 481 U.S. 551, 556-57, 107 S. Ct. 1990,

95 L. Ed. 2d 539 (1987).

" 'Pennsylvania v. Finley should apply no

differently in capital cases than in noncapital

cases. State collateral proceedings are not

constitutionally required as an adjunct to the state

criminal proceedings and serve a different and

more limited purpose than either the trial or

appeal. The additional safeguards imposed by the

Eighth Amendment at the trial stage of a capital

case are, we think, sufficient to assure the

30

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reliability of the process by which the death

penalty is imposed. We therefore decline to read

either the Eighth Amendment or the Due Process

Clause to require yet another distinction between

the rights of capital case defendants and those in

noncapital cases.'

"Murray v. Giarratano, 492 U.S. 1, 10, 109 S. Ct. 2765, 106 L.

Ed. 2d 1 (1989) (footnote omitted)."

Riley v. State, 270 So. 3d 291, 301-02 (Ala. Crim. App. 2018).

Lane asserts that "every death row prisoner in Alabama who has

timely filed a Rule 32 petition has been appointed counsel when counsel

has been requested." (Lane's brief, p. 15.) Lane cites no evidence to

support that assertion.

Lane cites the provision in Rule 32.7(c) requiring the circuit court

to appoint counsel "if it appears that the petitioner is indigent or

otherwise unable to obtain the assistance of counsel and desires the

assistance of counsel, and it further appears that counsel is necessary to

assert or protect the rights of the petitioner." In citing that provision,

Lane omits the first phrase of Rule 32.7(c): "If the court does not

summarily dismiss the petition …." The circuit court summarily

dismissed Lane's petition, and thus Rule 32.7(c) does not apply.

31

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Lane cites cases highlighting counsel and the need for the

assistance of counsel in a postconviction proceeding. 6 He also cites, as

evidence of a policy supporting the assistance of counsel in a

postconviction proceeding, § 13A-5-53.1(b), Ala. Code 1975, which, as a

part of the Fair Justice Act, provides an indigent defendant sentenced to

death after August 1, 2017, a right to postconviction counsel. Lane was

sentenced to death before August 1, 2017, and thus the Fair Justice Act

does not apply to Lane. We reject any invitation from Lane for this Court

to expand the reach of the Fair Justice Act beyond its terms. Cf. Ex parte

McCormick, 932 So. 2d 124, 132 (Ala. 2005) ("In any case involving

statutory construction, our inquiry begins with the language of the

statute, and if the meaning of the statutory language is plain, our

analysis ends there.").

6Attorneys for the Equal Justice Initiative, who also represented

Lane in his direct appeal and in this appeal, prepared his postjudgment

"objection and motion for reconsideration" in which Lane objected to the

circuit court's failure to appoint counsel. (C. 313-36.) On appeal, counsel

for Lane asserts that, "[a]s a pro se imprisoned petitioner, Mr. Lane

lacked the skills, resources, and ability to adequately respond to the

State's 57-page answer and motion to dismiss." (Lane's brief, p. 18.)

Despite counsel's assessment of Lane's abilities and resources, Lane

began these proceedings pro se by filing a verified petition that is 88

typed pages and is composed of 194 numbered paragraphs. (C. 6-93.)

32

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To the point that Lane asserts that the circuit court erred in

summarily dismissing his petition without giving him a chance to

respond to the State's answer and motion to dismiss, that assertion lacks

merit. 7 See, e.g., Mashburn v. State, 148 So. 3d 1094, 1114 (Ala. Crim.

App. 2013) ("[E]ven if Mashburn did not have an opportunity to respond

to the State's answer and motion to dismiss, this Court has held that Rule

32 does not require a circuit court to permit a Rule 32 petitioner to file a

response to the State's answer or motion to dismiss."); Jenkins v. State,

105 So. 3d 1234, 1244-45 (Ala. Crim. App. 2011) ("[A]s Alabama courts

have repeatedly held, 'Rule 32.7(d), Ala. R. Crim. P., allows the trial court

to summarily dismiss a Rule 32 petition that, on its face, is precluded or

fails to state a claim, and [the Alabama Supreme Court has] held that

the trial court may properly summarily dismiss such a petition without

waiting for a response to the petition from the State.' Ex parte Ward, 46

So. 3d [888,] 897 [(Ala. 2007)] (citing Bishop v. State, 608 So. 2d 345, 347-

48 (Ala. 1992) ('Where a simple reading of a petition for post-conviction

7Lane did not move to amend his petition in the circuit court. Thus,

to the point that he tries to raise this as an independent claim, it is not

properly before this Court. See, e.g., Boyd v. State, 913 So. 3d 1113, 1123

(Ala. Crim. App. 2003).

33

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relief shows that, assuming every allegation of the petition to be true, it

is obviously without merit or is precluded, the circuit court [may]

summarily dismiss that petition without requiring a response from the

district attorney.'))").

Lane had no right to counsel in his postconviction proceedings, and

he is due no relief on this claim.

II. CIRCUIT COURT'S ADOPTION OF THE STATE'S PROPOSED

ORDER

Lane challenges the circuit court's adoption of the State's proposed

order, arguing that it "created the appearance of bias, prevented [him]

from developing facts before an impartial decision-maker, adjudicated his

claims in an unreasonable manner," and violated his constitutional

rights. 8 (Lane's brief, pp. 25-26.) In support of his position, he relies

centrally on Ex parte Jenkins, 105 So. 3d 1250 (Ala. 2012), Ex parte Scott,

262 So. 3d 1266 (Ala. 2011), and Ex parte Ingram, 51 So. 3d 1119 (Ala.

2010). (Lane's brief, pp. 21-26.)

This Court recently addressed a similar claim in State v. Lewis, 371

So. 3d 863 (Ala. Crim. App. 2022):

8Lane preserved this issue by raising it in his postjudgment motion.

Cf. State v. Lewis, 371 So. 3d 863, 894 (Ala. Crim. App. 2022).

34

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"In [Ex parte] Ingram, [51 So. 3d 1119 (Ala. 2010)], the

Alabama Supreme Court reversed the circuit court's adoption,

in toto, of the State's proposed order denying a postconviction

petition.

" '[T]he Alabama Supreme Court has admonished

that "appellate courts must be careful to evaluate

a claim that a prepared order drafted by the

prevailing party and adopted by the trial court

verbatim does not reflect the independent and

impartial findings and conclusions of the trial

court." Ex parte Ingram, 51 So. 3d 1119, 1124 (Ala.

2010).

" 'In Ingram, the Supreme Court held that

the circuit court's adoption of the State's proposed

order denying postconviction relief was erroneous

because, it said, the order stated that it was based

in part on the personal knowledge and

observations of the trial judge when the judge who

actually signed the order denying the

postconviction petition was not the same judge

who had presided over Ingram's capital-murder

trial. "[T]he patently erroneous nature of the

statements regarding the trial judge's 'personal

knowledge' and observations of Ingram's capital-

murder trial undermines any confidence that the

trial court's findings of fact and conclusions of law

are the product of the trial judge's independent

judgment ...." Ingram, 51 So. 3d at 1125.'

"Ray v. State, 80 So. 3d 965, 971-72 (Ala. Crim. App. 2011).

"A year later, the Supreme Court reconsidered Ingram

in Ex parte Scott, 262 So. 3d 1266 (Ala. 2011). In Scott, the

Supreme Court reversed the court's judgment because the

court adopted the State's answer to Scott's postconviction

petition as its final order denying relief.

35

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"In 2012, the Supreme Court addressed this issue again

in Ex parte Jenkins, 105 So. 3d 1250 (Ala. 2012), and clarified

its earlier holdings. In upholding the circuit court's adoption

of the State's proposed order, the Alabama Supreme Court

stated:

" 'The circumstances of this case differ from

the circumstances presented in Ex parte Ingram

and Ex parte Scott. In both of those cases it was

clear from evidence before this Court that the

orders signed by the trial court were not the

product of the trial court's independent judgment.

In Ingram, that fact was clear from the statements

contained in the order regarding the trial judge's

"personal knowledge" and observations of

Ingram's capital-murder trial when the trial judge

signing the proposed Rule 32 order did not preside

over Ingram's capital-murder trial. In Ex parte

Scott, that fact was clear from the materials before

this Court, which contained the State's responsive

pleading adopted by the trial court as its order. In

this case, however, there is nothing definitive in

the record or on the face of the order that indicates

that the order is not the product of the trial court's

independent judgment.

" '....

" 'This Court's decision today should not be

read as entitling a petitioner to relief in only those

factual scenarios similar to those presented in Ex

parte Ingram and Ex parte Scott. A Rule 32

petitioner would be entitled to relief in any factual

scenario when the record before this Court clearly

establishes that the order signed by the trial court

denying postconviction relief is not the product of

36

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the trial court's independent judgment. See Ex

parte Ingram.'

"Ex parte Jenkins, 105 So. 3d at 1260. 'Alabama courts have

consistently held that even when a trial court adopts verbatim

a party's proposed order, the findings of fact and conclusions

of law are those of the trial court and they may be reversed

only if they are clearly erroneous.' McGahee v. State, 885 So.

2d 191, 229-30 (Ala. Crim. App. 2003).

"The order in this case suffered from none of the defects

present in the above-cited cases. The order did not contain

references to the author's personal observations when, in fact,

the postconviction judge was not the judge who presided over

the trial. Nor was the order adopted from pleadings made by

either party. In a similar case upholding the lower court's

adoption of a proposed order, this Court stated:

" 'Here, the fact situation is distinguishable

from the fact situations in both Ex parte Ingram

and Ex parte Scott. In this case, the circuit judge

who denied McWhorter's postconviction petition

did not preside at McWhorter's trial; however, in

the order denying McWhorter's postconviction

petition the court did not profess to have personal

knowledge of the performance of McWhorter's trial

counsel. Further, the circuit court in this case did

not base its order denying McWhorter's

postconviction petition upon the State's initial

answer to the postconviction petition. Instead,

after numerous pleadings, and after the

postconviction evidentiary hearing on

McWhorter's Rule 32 claims, the court allowed

submission of briefs. Both the State and

McWhorter submitted proposed orders, and

McWhorter submitted a post-hearing brief.

McWhorter did not object in his post-hearing brief

to the possibility of the circuit court's adopting the

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State's proposed order. The circuit court did not

issue its final order until several weeks after both

the State and McWhorter had submitted their

proposed orders and McWhorter had filed his post-

hearing brief.'

"McWhorter v. State, 142 So. 3d 1195, 1229 (Ala. Crim. App.

2011).

"The same is true in this case. For the above reasons, we

find no error in the postconviction-court's adoption, in part, of

Lewis's proposed order granting relief in the penalty phase.

The State is due no relief on this claim."

371 So. 3d at 894-96.

Unlike the order in Scott, which adopted the State's answer, the

circuit court adopted the State's proposed order. Lane asserts that the

circuit court's order does not "reflect [its] independent and impartial

findings and conclusions," Ex parte Ingram, 51 So. 3d at 1124. He

contends that the order "reflects the 'adversarial zeal' of the State's

adversarial documents." (Lane's brief, p. 24.) In support of that assertion,

he cites the order's statement that "[e]yewitness reports also placed Lane

at the murder scene," but, Lane says, there were no such eyewitnesses.

As this Court noted on direct appeal, however, Wilson's neighbor James

Jay testified that he saw Lane's truck "parked across the street from

Wilson's house" around 8:30 a.m. the morning of the murder and "that he

38

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saw a person get out of the truck and walk to the front porch of Wilson's

home, at which point [his] view of the person became obstructed by

shrubbery." Lane, 80 So. 3d at 286.

Lane also cites two typographical errors present in the both the

proposed order and the circuit court's order: a reference to Lane's expert

by only his first name "George" and the word "ismissed" instead of

"dismissed." (C. 203, 228, 248, 268.) Those minor errors do not show,

however, that the findings of the circuit court in its order are "clearly

erroneous," nor has Lane shown that the circuit court's adoption of the

State's proposed order was erroneous. See Davis v. State, 184 So. 3d 415,

448-49 (Ala. Crim. App. 2014) ("The circuit court's order in the present

case does not contain such 'patently erroneous' errors like the order in

Ingram. … We have reviewed the State's response, as well as the circuit

court's order dismissing Davis's petition, and have found none of the

'adversarial zeal' that was described in Scott. In fact, Davis does not

identify any specific portions of the circuit court's order that he believes

contains such 'adversarial zeal,' nor does he allege that any portions are

clearly erroneous. Instead, he merely points to two typographical errors

that appear in both the State's proposed order and the circuit court's

39

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order. … ' We do not consider the few typographical errors at issue here,

by themselves, as sufficient evidence upon which to base a conclusion

that the trial court's order is not a product of the trial court's independent

judgment.' [Scott, 262 So. 3d at 1273]."). We hold that the circuit court

did not commit reversible error by adopting the State's proposed order as

its own.

III. INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIMS

Lane reiterates his claims asserting that his trial counsel were

ineffective. He argues that the circuit court erred in summarily

dismissing those claims.

We use these principles in reviewing claims asserting ineffective

assistance of counsel:

" 'To prevail on a claim of ineffective

assistance of counsel, the petitioner must show (1)

that counsel's performance was deficient and (2)

that the petitioner was prejudiced by the deficient

performance. See Strickland v. Washington, 466

U.S. 668 (1984).

" ' "Judicial scrutiny of counsel's

performance must be highly

deferential. It is all too tempting for a

defendant to second-guess counsel's

assistance after conviction or adverse

sentence, and it is all too easy for a

court, examining counsel's defense

40

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after it has proved unsuccessful, to

conclude that a particular act or

omission of counsel was unreasonable.

A fair assessment of attorney

performance requires that every effort

be made to eliminate the distorting

effects of hindsight, to reconstruct the

circumstances of counsel's challenged

conduct, and to evaluate the conduct

from counsel's perspective at the time.

Because of the difficulties inherent in

making the evaluation, a court must

indulge a strong presumption that

counsel's conduct falls within the wide

range of reasonable professional

assistance; that is, the defendant must

overcome the presumption that, under

the circumstances, the challenged

action 'might be considered sound trial

strategy.' There are countless ways to

provide effective assistance in any

given case. Even the best criminal

defense attorneys would not defend a

particular client in the same way."

" 'Strickland, 466 U.S. at 689.

" ' "[T]he purpose of ineffectiveness

review is not to grade counsel's

performance. See Strickland [v.

Washington], [466 U.S. 668,] 104 S. Ct.

[2052] at 2065 [(1984)]; see also White

v. Singletary, 972 F.2d 1218, 1221

(11th Cir. 1992) ('We are not interested

in grading lawyers' performances; we

are interested in whether the

adversarial process at trial, in fact,

worked adequately.'). We recognize

41

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that '[r]epresentation is an art, and an

act or omission that is unprofessional

in one case may be sound or even

brilliant in another.' Strickland, 104 S.

Ct. at 2067. Different lawyers have

different gifts; this fact, as well as

differing circumstances from case to

case, means the range of what might be

a reasonable approach at trial must be

broad. To state the obvious: the trial

lawyers, in every case, could have done

something more or something

different. So, omissions are inevitable.

But, the issue is not what is possible or

'what is prudent or appropriate, but

only what is constitutionally

compelled.' Burger v. Kemp, 483 U.S.

776, 107 S. Ct. 3114, 3126, 97 L. Ed. 2d

638 (1987)."

" 'Chandler v. United States, 218 F.3d 1305, 1313–

14 (11th Cir. 2000) (footnotes omitted).

" 'An appellant is not entitled to "perfect

representation." Denton v. State, 945 S.W.2d 793,

796 (Tenn. Crim. App. 1996). "[I]n considering

claims of ineffective assistance of counsel, 'we

address not what is prudent or appropriate, but

only what is constitutionally compelled.' " Burger

v. Kemp, 483 U.S. 776, 794 (1987).'

"Yeomans v. State, 195 So. 3d 1018, 1025-26 (Ala. Crim. App.

2013). Additionally, ' "[w]hen courts are examining the

performance of an experienced trial counsel, the presumption

that his conduct was reasonable is even stronger." ' Ray v.

State, 80 So. 3d 965, 977 n.2 (Ala. Crim. App. 2011) (quoting

Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir.

2000)).

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"We also recognize that when reviewing claims of

ineffective assistance of counsel 'the performance and

prejudice components of the ineffectiveness inquiry are mixed

questions of law and fact.' Strickland v. Washington, 466 U.S.

668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)."

Marshall, 182 So. 3d at 582-83.

A. GUILT-PHASE CLAIMS

1. CLAIMS RELATED TO THE CHISEL-MARKS EVIDENCE AND

EVIDENCE ABOUT FORCED ENTRY

a. FAILURE TO HIRE AN EXPERT AND PRESENT EXPERT

TESTIMONY

Lane alleged that his trial counsel were ineffective because

"counsel failed to seek funding, obtain, or present an expert in

crime scene investigation and forensics to provide critical

testimony regarding whether there had been any evidence of

forced entry, in particular the chisel marks on the door. Trial

counsel further failed to file a motion for discovery or

otherwise request from the State the entire raw file or

memory card of photographs, or copies of all the photographs

taken by investigators on October 12, 2003."

(Lane's brief, p. 31 (citing C. 21).) Lane asserts that there was "a lack of

evidence of forced entry on October 12" and "that the chisel marks likely

were made on the door after the crime scene investigation concluded on

October 12." (Lane's brief, p. 35.)

The circuit court dismissed this claim for two reasons. First, the

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court found that the adequacy of " 'the State's investigation is not a proper

subject for expert testimony.' " (C. 285 (quoting Stanley v. State, 335 So.

3d 1, 33 (Ala. Crim. App. 2020).) Second, the court found the claim

insufficiently pleaded because, although Lane named an expert—George

Schiro—and asserted generally that Schiro was available to testify in his

2016 trial, Lane did "not assert that [his] trial counsel should have

reasonably been aware of Schiro's existence or that the proffered

testimony would have been admissible." (C. 286.) The circuit court also

found the claim insufficiently pleaded because Lane did not specifically

assert that Schiro had been qualified to testify as an expert in Alabama

before Lane's 2016 trial.

On appeal, Lane disputes both reasons the circuit court cited. First,

Lane characterizes his claim not as one asserting that an expert was

needed to challenge to the State's investigation but that expert testimony

was needed to rebut the State's theory. This is a distinction without a

difference. Lane pleaded that his expert Schiro would have testified that

if the chisel marks existed on October 12, the State should have observed

them in its investigation. Thus, Schiro's testimony hinged on the

adequacy of the State's investigation, which, under Rule 702, Ala. R.

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Evid., is not a proper subject for expert testimony. See Stanley, 335 So.

3d at 33-34 (holding that challenging the quality of the State's

investigation is not a proper subject for expert testimony).

Second, Lane asserts that he adequately pleaded the claim because

he asserted generally that "Schiro has been working in this field for

almost four decades and has been certified as a criminal investigations

and forensics expert in several cases in Alabama courts, including a post-

conviction proceeding." (Lane's brief, p. 36.) By failing to plead that

Schiro was qualified and available to testify at Lane's trial in 2016,

however, Lane did not adequately plead the claim. See, e.g., Thompson

v. State, 310 So. 3d 850, 870 (Ala. Crim. App. 2018) ("Thompson failed to

plead that Dr. Oral was available and that she could have testified as an

expert witness in Alabama in 2005. Thus, Thompson failed to plead the

'full facts' in regard to this claim. See Rule 32.6(b), Ala. R. Crim. P."); see

also Brooks v. State, 340 So. 3d 410, 437 (Ala. Crim. App. 2020)

(discussing what a petitioner must plead to show that his or her trial

counsel were ineffective for failing to consult and call an expert to testify

at the petitioner's trial).

The circuit court did not err in summarily dismissing this claim.

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b. FAILURE TO PRESENT EVIDENCE DISPUTING A FORCED

ENTRY

Lane asserted that his trial counsel should have

"request[ed] the notes, documentation, or underlying memory

device or storage file used by investigators to take and record

pictures on the day of Ms. Lane's death. … [N]otes by 15

investigators charged with fully documenting the scene, other

documentation, and photographs by investigators on October

12 taken of the front door—that was being used by all the

investigators on that day and that would have been

considered a potential point of entry during a burglary—could

have established that no toolmarks existed and that the chain

lock was still intact on the day of Ms. Lane's death. As

plead[ed], in a routine investigation, investigators would have

included photographs of the front door, the front door jamb,

the locking mechanisms, and the chain lock, as well as similar

photographs of any other potential point of entry, but trial

counsel never requested these items or the underlying

memory or storage device used to document the scene on

October 12."

(Lane's brief, pp. 39-40 (citing C. 29-31).) Lane asserts that if counsel

had obtained the records, "they would have been visual confirmation of

the testimony of Iris Raley, the daughter of Ms. Wilson, who testified that

after police were finished with the scene on October 12, she went to the

front door and locked it herself." (Lane's brief, pp. 41-42.)

The circuit court summarily dismissed this claim as insufficiently

pleaded because Lane did not plead that such a storage device or records

actually existed—thus his claim was based on speculation that "standard

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police protocol" would have included a storage device or the records Lane

asserts counsel should have obtained. The circuit court also found that

Lane's claim, by its own terms, would have been cumulative to Iris

Raley's testimony. (C. 286-87.)

On appeal, Lane reasserts that his allegations that the State "took

dozens of photographs as part of [its] investigation" and that no

photographs of the front door were admitted at trial met his burden of

pleading. (Lane's brief, p. 40.) But even if true those allegations require

speculation to conclude that a storage device or records existed. As the

petitioner, Lane had to plead the full factual basis for this claim, which

includes that the storage device or records existed—not that they might

exist. See Mashburn, 148 So. 3d at 1125 ("Speculation is not sufficient to

satisfy a Rule 32 petitioner's burden of pleading."). And as the circuit

court found, even if the evidence existed, that evidence would be

cumulative of Raley's testimony. "[T]he withholding of cumulative

testimony will not ordinarily satisfy the prejudice component of a claim

of ineffective assistance of counsel." Stallworth v. State, 171 So. 3d 53,

74 (Ala. Crim. App. 2013)

The circuit court did not err in summarily dismissing this claim as

47

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insufficiently pleaded.

2. FAILURE TO CHALLENGE THE ADMISSIBILITY OF MILROY'S

TESTIMONY

Lane asserts that his "trial counsel failed to do the bare minimum

to counter or in any way challenge the admission of the testimony of the

State's toolmarks expert" Scott Milroy. (Lane's brief, p. 43.) Lane alleged

that "Milroy's experience in ballistic toolmark analysis did not qualify

him as an expert in impression-type chisel-mark analysis." (Lane's brief,

p. 44.)

This Court has held that "[e]ven if a claim of ineffective assistance

of counsel is sufficiently pleaded, … counsel is not ineffective for failing

to raise a meritless claim." Brooks, 340 So. 3d at 442. See also Carruth

v. State, 165 So. 3d 627, 641 (Ala. Crim. App. 2014) (counsel is not

ineffective for failing to raise a meritless objection); Yeomans v. State,

195 So. 3d 1018, 1034 (Ala. Crim. App. 2013) ("[B]ecause there is no merit

to the legal theory underlying this claim of ineffective assistance, the

claim was properly dismissed.").

On direct appeal, this Court addressed the underlying claim and

held that it had no merit:

"The record supports the conclusion that Milroy was

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qualified to testify as a firearms-and-toolmarks expert and

that the marks on Wilson's front door fell within that field of

expertise, i.e., were toolmarks. Any lack of experience Milroy

might have had specifically with chisels or 'impressed

toolmark[s]' went to the weight of Milroy's testimony, not its

admissibility. Thus, we find no error, much less plain error,

in allowing Milroy to testify regarding his conclusions from

the toolmarks analysis he performed in this case."

Lane, 327 So. 3d at 744 (emphasis added). Based on this holding, the

circuit court summarily dismissed Lane's claim that his counsel should

have challenged the admissibility of Milroy's testimony.

Lane argues that "the ruling on direct appeal is not dispositive of

the ineffectiveness claim here." (Lane's brief, p. 45.)

"In Woodward v. State, 276 So. 3d 713, 768-69 (Ala.

Crim. App. 2018), the circuit court rejected a petitioner's claim

that his counsel was ineffective for not objecting to certain

testimony. The circuit court relied on this Court's holding in

the petitioner's direct appeal that the underlying claim had

no merit. On appeal, the petitioner argued 'that the circuit

court's finding that claim was meritless because it was

rejected by this Court on direct appeal' conflicted with Ex

parte Taylor, 10 So. 3d 1075 (Ala. 2005). This Court disagreed:

" 'In Ex parte Taylor, the Alabama Supreme

Court held that "a determination on direct appeal

that there has been no plain error does not

automatically foreclose a determination of the

existence of the prejudice required under

Strickland to sustain a claim of ineffective

assistance of counsel." 10 So. 3d at 1078. However,

Ex parte Taylor applies only to the prejudice prong

of Strickland, not to the deficient-performance

49

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prong. See Clark v. State, 196 So. 3d 285, 311 n.4

(Ala. Crim. App. 2015). Because this Court's

holding on direct appeal establishes that counsel's

performance was not deficient, Ex parte Taylor is

inapplicable.'

"Woodward, 276 So. 3d at 769.

Largin v. State, 392 So. 3d 997, 1030-31 (Ala. Crim. App. 2022), cert.

denied (No. SC-2023-0231, Nov. 17, 2023). This Court on direct appeal

held that Milroy was, in fact, qualified. Lane does not address this

Court's holding in Lane, nor does he address the circuit court's reliance

on that holding. This Court's holding in Lane refutes the claim on which

Lane bases his argument that his counsel performed deficiently. Because

Milroy was qualified to testify, counsel's failure to object was not deficient

performance. See Woodward v. State, 276 So. 3d 713, 768-69 (Ala. Crim.

App. 2018); see also Brooks, supra; Carruth, supra; Yeomans, supra.

The circuit court did not err in summarily dismissing this claim.

3. FAILURE TO PRESENT EXPERT TESTIMONY ABOUT THE

CHISEL FOUND IN LANE'S TRUCK

Lane alleged that counsel should have "retain[ed] an expert to rebut

Mr. Milroy's testimony that the chisel found in Mr. Lane's truck was the

only chisel in the world that could have broken into Indy Wilson's home."

(C. 38-39.) Lane asserted that counsel should have retained John Nixon,

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"an expert consultant in this field for 26 years and [who] has been

certified as a toolmarks expert in numerous state and federal courts" and

who "would have been available, qualified to testify, and willing and able

to testify at Mr. Lane's trial" in 2016. (C. 39.)

The circuit court summarily dismissed this claim:

"First, although Lane generally asserts that Nixon is an

experienced toolmarks expert who has been 'certified as a

toolmarks expert in numerous state and federal courts,' Lane

does not proffer any facts to support his assertion that Nixon

is actually a qualified expert. Second, Lane does not proffer

what testimony Nixon would have offered to challenge the

actual conclusions Milroy drew from his analysis of the

impressed toolmarks on Wilson's front door. Rather, he

merely asserts that Nixon would have challenged Milroy's

testimony that 'not another chisel in the world' could have

made the impression was an 'improper' statement based on

literature and court opinions from other jurisdictions. … He

does not allege that Nixon would have presented testimony

challenging the underlying analysis Milroy performed as

faulty or allege that without expert testimony, Milroy's

testimony could not have been challenged with then-available

literature and court opinions. Finally, Lane has not alleged

any facts that counsel should have reasonably been aware of

Nixon's existence or that his proffered testimony would have

been admissible. Thompson [v. State], 310 So. 3d [850,] 870

[(Ala. Crim. App. 2018)]. As such, he has not sufficiently

pleaded a full factual basis to demonstrate under Strickland

that counsel performed deficiently and that such alleged

deficient performance resulted in actual prejudice."

(C. 289-90.)

On appeal, Lane addresses only the second reason given by the

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circuit court—"about what testimony Nixon would have offered." Lane

argues that he pleaded sufficient facts

"about what testimony Nixon would have offered to challenge

… Milroy's conclusions (C. 252); Mr. Lane specifically pled

that Nixon would have offered testimony—with explicit

reference to the 2009 National Academy of Science Report on

Forensic Science, President's Council of Advisors on Science

and Technology 2016 report and 2017 addendum, and

federal and state court opinions—that explained that Mr.

Milroy's testimony that there was 'not another chisel in the

world' (R. 1617) besides the one found in Mr. Lane's truck,

that could have left the marks on the front door, was an

improper opinion against the literature in the field of

toolmarks that was irresponsible and unfounded in science.

(C. 40-41.)"

(Lane's brief, pp. 48-49.) Lane does not address the other two reasons

cited by the circuit court. Thus, Lane has shown no reversible error giving

him a right to relief on this issue. See, e.g., Matherly v. Citizens Bank,

375 So. 3d 776, 783 (Ala. 2022) (" '[A] challenge to the judgment is waived

where ... the trial court actually states two grounds for its judgment, both

grounds are championed by the appellee, and the appellant simply

declines to mention one of the two grounds.' Soutullo v. Mobile Cnty., 58

So. 3d 733, 739 (Ala. 2010).").

4. FAILURE TO INVESTIGATE, OBTAIN, AND PRESENT

EVIDENCE RELATED TO THE BATHTUB DRAIN

Lane alleged that his counsel failed to "investigate, obtain, and

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present evidence related to whether the overflow drain in the bathtub …

was functioning properly." (C. 43.) He asserted that, although trial

counsel had argued that it was impossible "for Mr. Lane to have

committed the crime under the timeline given by the State because if the

water in the bathtub had been left running for almost an hour after

[Theresa] was murdered, as the State's theory required, then it would

have overflowed on the floor," counsel were ineffective for not hiring "an

investigator to analyze the precise plumbing fixtures soon after the

incident or introduce expert testimony at trial" to challenge the State's

estimated timeline of Theresa's murder. (C. 43-44.)

The circuit court summarily dismissed this claim as lacking merit

because the trial record shows that trial counsel retained an investigator

to test whether the overflow drain was working properly but that the trial

court refused to admit evidence from that test. (C. 291.) This Court held

that the trial court did not err in excluding that evidence. Lane, 327 So.

3d at 744-48.

On appeal, Lane argues that the circuit court misunderstood his

claim:

"Mr. Lane's claim was not about a demonstration by a private

investigator years later, but instead asserted that trial

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counsel should have hired an expert that would have

conducted an admissible investigation at the time of Ms.

Lane's death to form the basis of their expert opinion."

(Lane's brief, p. 51.) Lane did not plead that counsel should have hired

an expert. But even if he had, he failed to meet the pleading requirements

for such a claim because he alleged nothing about a named expert that

counsel should have hired. See, e.g., Brooks, 340 So. 3d at 437 (discussing

what a petitioner must plead to show that his or her trial counsel were

ineffective for failing to consult and call an expert to testify at the

petitioner's trial). Lane has thus not shown that the circuit court erred in

summarily dismissing this claim. Rule 32.7(d), Ala. R. Crim. P.

5. FAILURE TO OBJECT TO ALLEGEDLY INADMISSIBLE

EVIDENCE

Lane asserted that trial counsel were ineffective for not objecting to

the admission of the following evidence.

a. PRIOR TESTIMONY FROM FIVE WITNESSES

Lane asserted that his trial counsel in 2016 should have objected to

the admission of testimony given in Lane's first trial by Robert Lane,

Mixon, Jay, Raley, and LaPointe, each of whom was unavailable for

Lane's 2016 trial. (C. 45-46.)

On direct appeal, this Court found no plain error in the admission

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of the testimony from those five witnesses. Lane, 327 So. 3d at 716. This

Court first discussed the structural error in Lane's first trial:

"On direct appeal of Lane's convictions from his first

trial, this Court relied on United States v. Gonzalez-Lopez,

548 U.S. 140, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006), in

concluding that the trial court's disqualification of Lane's

counsel of choice constituted ' "structural error" that cannot be

harmless and that automatically requires reversal.' Lane, 80

So. 3d at 302. Specifically, this Court stated:

" 'In Gonzalez–Lopez, 548 U.S. 140, 126 S. Ct.

2557, 165 L. Ed. 2d 409 (2006), the United States

Supreme Court noted that the Sixth Amendment

right to counsel of choice does not descend from the

Sixth Amendment's overarching purpose of

ensuring a fair trial, as does the right to the

effective assistance of counsel, but it is "the root

meaning of the constitutional guarantee." 548 U.S.

at 147-48, 126 S. Ct. 2557. Therefore, "[w]here the

right to be assisted by counsel of one's choice is

wrongly denied ... it is unnecessary to conduct an

ineffectiveness or prejudice inquiry to establish a

Sixth Amendment violation." Id. at 148, 126 S. Ct.

2557. The Court then went on to explain:

" ' "In Arizona v. Fulminante, 499

U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d

302 (1991), we divided constitutional

errors into two classes. The first we

called 'trial error,' because the errors

'occurred during presentation of the

case to the jury' and their effect may 'be

quantitatively assessed in the context

of other evidence presented in order to

determine whether [they were]

harmless beyond a reasonable doubt.'

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Id., at 307-308, 111 S. Ct. 1246

(internal quotation marks omitted).

These include 'most constitutional

errors.' Id., at 306, 111 S. Ct. 1246. The

second class of constitutional error we

called 'structural defects.' These 'defy

analysis by "harmless-error"

standards' because they 'affec[t] the

framework within which the trial

proceeds,' and are not 'simply an error

in the trial process itself.' Id., at 309-

310, 111 S. Ct. 1246. See also Neder v.

United States, 527 U.S. 1, 7-9, 119 S.

Ct. 1827, 144 L. Ed. 2d 35 (1999). Such

errors include the denial of counsel, see

Gideon v. Wainwright, 372 U.S. 335, 83

S. Ct. 792, 9 L. Ed. 2d 799 (1963), the

denial of the right of self-

representation, see McKaskle v.

Wiggins, 465 U.S. 168, 177-178, n.8,

104 S. Ct. 944, 79 L. Ed. 2d 122 (1984),

the denial of the right to public trial,

see Waller v. Georgia, 467 U.S. 39, 49,

n.9, 104 S. Ct. 2210, 81 L. Ed. 2d 31

(1984), and the denial of the right to

trial by jury by the giving of a defective

reasonable-doubt instruction, see

Sullivan v. Louisiana, 508 U.S. 275,

113 S. Ct. 2078, 124 L. Ed. 2d 182

(1993).

" ' "We have little trouble

concluding that erroneous deprivation

of the right to counsel of choice, 'with

consequences that are necessarily

unquantifiable and indeterminate,

unquestionably qualifies as "structural

error." ' Id., at 282, 113 S. Ct. 2078.

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Different attorneys will pursue

different strategies with regard to

investigation and discovery,

development of the theory of defense,

selection of the jury, presentation of the

witnesses, and style of witness

examination and jury argument. And

the choice of attorney will affect

whether and on what terms the

defendant cooperates with the

prosecution, plea bargains, or decides

instead to go to trial. In light of these

myriad aspects of representation, the

erroneous denial of counsel bears

directly on the 'framework within

which the trial proceeds,' Fulminante,

supra, at 310, 111 S. Ct. 1246—or

indeed on whether it proceeds at all. It

is impossible to know what different

choices the rejected counsel would have

made, and then to quantify the impact

of those different choices on the

outcome of the proceedings. Many

counseled decisions, including those

involving plea bargains and

cooperation with the government, do

not even concern the conduct of the

trial at all. Harmless-error analysis in

such a context would be a speculative

inquiry into what might have occurred

in an alternate universe."

" '548 U.S. at 148-49, 126 S. Ct. 2557 (footnote

omitted; emphasis added).'

"Lane, 80 So. 3d at 302-03.

"In support of his claim that the five unavailable

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witnesses' prior testimony was inadmissible, Lane notes the

United States Supreme Court's conclusion in Gonzalez-Lopez

that the erroneous denial of a defendant's counsel of choice is

a ' "structural error" ' that 'bears directly on the "framework

within which the trial proceeds," ' Gonzalez-Lopez, 548 U.S. at

150, 126 S. Ct. 2557 (quoting Arizona v. Fulminante, 499 U.S.

279, 282, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)), and

results in ' "consequences that are necessarily unquantifiable

and indeterminate." ' Id. (quoting Fulminante, 499 U.S. at

310, 111 S. Ct. 1246). Relying on that language, Lane argues

that the erroneous denial of his counsel of choice rendered his

first trial a 'tainted proceeding' and that, as a result, the

testimony from that trial was inadmissible in his second trial.

Lane's brief, at 13. Thus, the issue as to this claim may be

framed as follows: When a defendant's conviction is reversed

because the defendant was erroneously denied his or her

counsel of choice, does that ' "structural defect," ' Gonzalez-

Lopez, 548 U.S. at 148, 126 S. Ct. 2557, in the defendant's

trial render testimony from that trial inadmissible when the

testimony is proffered in the defendant's subsequent trial as

the prior testimony of an unavailable witness?

"On its face, Gonzalez-Lopez does not address that issue,

and Lane's appellate counsel conceded at oral argument that

neither the United States Supreme Court nor Alabama's

appellate courts have addressed this specific issue. Consistent

with counsel's concession, this Court's research has confirmed

that this specific issue raises a question of first impression

under controlling law. In Townes v. State, 253 So. 3d 447 (Ala.

Crim. App. 2015), this Court addressed the propriety of

resolving issues of first impression under plain-error review:

" ' "It is well settled that plain-error review is

an inappropriate mechanism to decide issues of

first impression or to effectuate changes in the

law." Kelley v. State, 246 So. 3d 1032, 1052 (Ala.

Crim. App. 2014). See also United States v. Olano,

507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d

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508 (1993) ("[A] court of appeals cannot correct an

error [under the plain-error doctrine] unless the

error is clear under current law."); United States

v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013)

("For a plain error to have occurred, the error must

be one that is obvious and is clear under current

law." (citations and quotations omitted)); United

States v. Accardi, 669 F.3d 340, 348 (D.C. Cir.

2012) ("[A] question of first impression ... would be

inappropriate to address under plain error

review."); United States v. Lejarde-Rada, 319 F.3d

1288, 1291 (11th Cir. 2003) ("[T]here can be no

plain error where there is no precedent from the

Supreme Court or this Court directly resolving it."

(citations omitted)); United States v. Magluta, 198

F.3d 1265, 1280 (11th Cir. 1999) ("[A] district

court's error is not 'plain' or 'obvious' if there is no

precedent directly resolving an issue."), vacated in

part on unrelated grounds, 203 F.3d 1304 (11th

Cir. 2000). Whether error resulted from the

prosecutor's comment "is an issue of first

impression and thus not properly before this Court

for plain-error review." Kelley, 246 So. 3d at 1053

(citing Accardi, 669 F.3d at 348).'

"Townes, 253 So. 3d at 494. Thus, because it is a question of

first impression whether testimony from a trial in which the

defendant was erroneously denied counsel of choice is

admissible in the defendant's subsequent trial as the prior

testimony of an unavailable witness, plain-error review,

which is the standard that applies to this claim, is an

' "inappropriate mechanism" ' to decide that issue. Townes,

253 So. 3d at 494 (quoting Kelley v. State, 246 So. 3d 1032,

1052 (Ala. Crim. App. 2014)).

"We recognize that, according to Lane, by concluding

that 'the erroneous denial of counsel bears directly on the

"framework within which the trial proceeds," ' Gonzalez-

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Lopez, 548 U.S. at 150, 126 S. Ct. 2557 (quoting Fulminante,

499 U.S. at 282, 111 S. Ct. 1246), Gonzalez-Lopez necessarily

implies that testimony from such a structurally defective trial

is inadmissible in the defendant's subsequent trial. However,

it cannot be said that Gonzalez-Lopez ' "directly resolv[ed]" '

that issue or that the answer to that question is ' "obvious and

... clear" ' from Gonzalez-Lopez. Townes, 253 So. 3d at 494

(quoting United States v. Lejarde-Rada, 319 F.3d 1288, 1291

(11th Cir. 2003), and United States v. Madden, 733 F.3d 1314,

1322 (11th Cir. 2013) (emphasis added)). Rather, at most,

support for Lane's argument might arguably be inferred from

Gonzalez-Lopez, but, as the United States Supreme Court has

recognized, a possible inference drawn from a United States

Supreme Court decision is not an inevitable one. Crawford v.

Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d

177 (2004). Thus, whatever inferences might arguably be

drawn from Gonzalez-Lopez, it cannot be said that Gonzalez-

Lopez constitutes well settled law providing that testimony

from a trial in which the defendant was erroneously denied

counsel of choice is inadmissible in the defendant's

subsequent trial as the prior testimony of an unavailable

witness. Therefore, because neither the United States

Supreme Court nor this Court has addressed the question of

first impression raised by Lane's claim, we will not conclude

that the trial court committed plain error by admitting the

unavailable witnesses' prior testimony from Lane's first trial.

Townes, supra. See also United States v. Wolfname, 835 F.3d

1214, 1221 (10th Cir. 2016) (noting that plain error must be

' "clear and obvious" under "current, well-settled law" '

(emphasis added; citations omitted)); and United States v.

Lin, 101 F.3d 760, 770 (D.C. Cir. 1996) (noting that, to

determine that a trial court committed plain error, the alleged

error 'must ... have been error under settled law of the

Supreme Court or of this circuit' (emphasis added))."

Lane, 327 So. 3d at 714-16.

This Court rejected Lane's argument that, because he did not have

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his counsel of choice in his first trial, the admission of testimony from

that trial violated the Confrontation Clause of the Sixth Amendment: 9

" ' "[T]he Confrontation Clause guarantees only an

opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to

whatever extent, the defense might wish." ' Kentucky v.

Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 96 L. Ed. 2d 631

(1987) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.

Ct. 292, 88 L. Ed. 2d 15 (1985)). Thus, the fact that Lane did

not have the opportunity to cross-examine the witnesses in

his first trial with the counsel of his choice did not constitute

a violation of the Confrontation Clause. Nevertheless, Lane

suggests that, after Crawford, an adequate opportunity for

cross-examination is no longer sufficient to satisfy the

Confrontation Clause; instead, Lane argues, there must be

some indication that the cross-examination met some

minimal threshold of adequacy. Ignoring the fact that Lane

does not allege that the cross-examination in his first trial

was inadequate, we note that Crawford set forth no such rule.8

As the United States Court of Appeals for the Fifth Circuit

has noted, 'the Supreme Court's watershed decision in

Crawford ... did not purport to set forth new standards

governing the effectiveness of cross-examination. To the

contrary, the Court reaffirmed its precedents holding that "an

adequate opportunity to cross-examine" a now-unavailable

witness would satisfy the Confrontation Clause.' United

States v. Richardson, 781 F.3d 237, 244 (5th Cir. 2015) (first

and third emphasis added). Thus, because Lane had an

adequate opportunity to cross-examine the witnesses in his

first trial and because five of those witnesses were no longer

available by the time of Lane's second trial, the admission of

those five witnesses' prior testimony did not violate the

Confrontation Clause. Therefore, as to this aspect of Lane's

9"In all criminal prosecutions, the accused shall enjoy the right ...

to be confronted with the witnesses against him." U.S. Const., amend. VI.

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claim, we find no error, much less plain error, in the trial

court's admission of the prior testimony of the five unavailable

witnesses.

"_______________

"8Lane does not identify any alleged deficiencies in

defense counsel's cross-examination during Lane's first trial

but, rather, merely suggests that his counsel of choice might

have conducted cross-examination differently. Lane's brief, at

12."

Lane, 327 So. 3d at 717.

In summarily dismissing Lane's ineffectiveness claim, the circuit

court relied on this Court's opinion on direct appeal addressing the

underlying issues. The circuit court noted that, because there was no

dispute that Lane had an opportunity to cross-examine the witnesses at

his first trial, there was no violation of his right to confrontation. The

circuit court also rejected Lane's suggestion that "a choice of counsel

violation … during Lane's first trial … create[d] an automatic

assumption rendering cross-examination of witnesses deficient and

therefore inadmissible in his new trial." (C. 292.) The circuit court found

that Lane had to plead facts showing "that counsel's failure to object

when this testimony was offered resulted in actual prejudice." (C. 293.)

On appeal, Lane reiterates the arguments raised in his 2020

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appeal. He argues that the structural error in his first trial at which those

witnesses testified "saddled [him] with the cross-examination of these

witnesses conducted by the lawyers from the first trial, whose

representation" this Court held in 2010 violated his right to the counsel

of his choice. (Lane's brief, p. 53.) He argues that the admission of that

testimony also "violated [his] right to confrontation because he never had

the opportunity to effectively cross-examine the witnesses with his

counsel of choice." (Lane's brief, p. 53.)

To the point that this ineffectiveness claim turns on counsel not

raising a question of first impression, Lane is due no relief. This Court in

Lane emphasized that plain-error review is an "inappropriate

mechanism" for deciding a question of first impression. This Court has

likewise held:

"[A] defendant's counsel cannot be deemed ineffective for

failing to raise a novel claim that hinges on a legal question of

first impression. Although a particularly creative and adept

attorney might raise such a claim, the Strickland test 'has

nothing to do with what the best lawyers would have done' or

'even what most good lawyers would have done.' Grayson v.

Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001) (citation

omitted). Instead, Strickland requires 'only a " 'reasonably

competent attorney,' " ' which is to say that it 'does not

guarantee perfect representation,' Harrington v. Richter, 562

U.S. 86, 110, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) (quoting

Strickland, 466 U.S. at 687, 104 S. Ct. 2052), or even 'ideal'

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representation. Mickens v. Taylor, 240 F.3d 348, 363 (4th Cir.

2001). See also United States v. Valas, 40 F.4th 253, 260 (5th

Cir. 2022) ('[T]he Sixth Amendment entitles a criminal

defendant to reasonable, but not perfect, representation of

counsel.' (citation omitted)). To hold that a defendant's

counsel renders ineffective assistance by failing to raise a

novel claim that hinges on a legal question of first impression

would be to require representation that goes beyond that

which is reasonable and to require representation that begins

to approach perfection."

McCoy v. State, 387 So. 3d 261, 267-68 (Ala. Crim. App. 2023), cert.

denied (No. SC-2023-0343, June 23, 2023). And to the point that Lane's

claim turns on a violation of his right to confrontation, this Court in Lane

held that "the admission of those five witnesses' prior testimony did not

violate the Confrontation Clause." 327 So. 3d at 717. Indeed, as to that

part of Lane's claim, this Court found "no error, much less plain error, in

the trial court's admission of the prior testimony of the five unavailable

witnesses." Id. Thus, there is no merit to Lane's assertion that his

counsel performed deficiently. See Woodward, supra; Brooks, supra;

Carruth, supra; Yeomans, supra.

The circuit court did not err in summarily dismissing this claim.

See Rule 32.7(d), Ala. R. Crim. P.

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b. EVIDENCE THAT LANE PAID AN ATTORNEY ON THE DAY HE

WAS ARRESTED

Lane alleged that his counsel were ineffective for not objecting at

trial to evidence about a receipt showing that Lane paid attorney Buzz

Jordan $1,000 one day after Theresa was discovered dead. (C. 51.)

On direct appeal, this Court found no plain error in the admission

of evidence about the payment:

"Read in context, it is evident that the prosecutor did not

imply that the $1,000 payment was in and of itself

incriminating evidence. Rather, it is clear that the prosecutor

referenced the $1,000 payment in an attempt (1) to

demonstrate that, around the time Theresa was murdered,

Lane was making significant expenditures, despite his limited

financial resources, in an attempt to finalize his divorce and

to marry Abe—facts that, the prosecutor argued, tended to

prove Lane murdered Theresa because he needed to collect

the proceeds of her life-insurance policy—and (2) to cast doubt

on defense counsel's argument that Lane sought to collect the

proceeds of Theresa's life-insurance policy so that he could pay

to have Theresa buried. See [United States v.] Frazier, 944

F.2d [820,] 826-27 [(11th Cir. 1991)] (noting that a reference

to the fact that defendant sought legal counsel 'is especially

permissible when the prosecutor is responding to a potentially

misleading argument by defense counsel'). Thus, it is clear to

this Court that the prosecutor's references to the $1,000

payment were directly tied to relevant issues in the case and

were not intended to imply that the payment was in and of

itself proof of Lane's guilt. Compare Dendy v. State, 896 So.

2d 800, 804 (Fla. Dist. Ct. App. 2005) (where prosecutor

argued that defendant's 'request ... for a lawyer before his

arrest was evidence of his "consciousness of guilt" '); People v.

Meredith, 84 Ill. App. 3d 1065, 40 Ill. Dec. 214, 405 N.E.2d

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1306, 1312 (1980) (where prosecutor argued that defendant

' "knew he had shot those people that is why he went to call

his lawyer in the morning" '); and Zemina v. Solem, 438 F.

Supp. 455, 465 (D.S.D. 1977) (where prosecutor argued that

'[t]he fact that [defendant] called his lawyer is a telling sign').

"Based on the foregoing, we conclude that evidence of

the $1,000 payment and the prosecutor's arguments

regarding that evidence did not give rise to an 'unavoidable

inference,' Arthur [v. State], 575 So. 2d [1165,] 1178 [(Ala.

Crim. App. 1990)], that the payment was proof of Lane's

consciousness of guilt. In fact, when such evidence and

arguments are considered in context, we conclude that it was

unlikely that the jury drew such an inference."

Lane, 327 So. 3d at 754-55. This Court also rejected Lane's claim that

admission of the evidence violated the attorney-client privilege:

"[T]he payment of attorney fees generally is not protected by

the attorney-client privilege—a fact Lane concedes. Lane's

brief, at 64. See O'Neal v. United States, 258 F.3d 1265, 1276

(11th Cir. 2001) ('[I]nformation involving receipt of attorneys'

fees from a client is not generally privileged.'); In re Grand

Jury Subpoena, 204 F.3d 516, 520 (4th Cir. 2000) (same); and

Matter of Grand Jury Proceeding, Cherney, 898 F.2d 565, 567

(7th Cir. 1990) (same). Nevertheless, Lane argues that an

exception to this principle exists when evidence of an

attorney-client fee arrangement 'would itself reveal a

confidential communication.' In re Grand Jury Subpoena for

Attorney Representing Criminal Defendant Reyes-Requena,

926 F.2d 1423, 1431 (5th Cir. 1991). That 'narrow exception,'

id., is not applicable here, however, because evidence of the

$1,000 payment to Jordan did not reveal any confidential

communications between Lane and Jordan."

Lane, 327 So. 3d at 755 n.17.

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In summarily dismissing this claim, the circuit court cited, as

showing that the underlying claim has no merit, this Court's finding of

no plain error on direct appeal.

On appeal, Lane does not address this Court's analysis finding no

plain error or this Court's analysis of his attorney-client-privilege

argument. He merely reiterates the arguments he made on direct appeal

and asserts that his counsel were ineffective for not objecting to the

evidence. Because his petition does not show that the underlying claim

has merit, Lane has no right to relief. See Woodward, supra.

The circuit court did not err in summarily dismissing this claim.

See Rule 32.7(d), Ala. R. Crim. P.

c. DETECTIVE McRAE'S TESTIMONY

Lane asserts that trial counsel should have timely objected to

Detective McRae's testimony "that the overflow drain on the bathtub in

which Theresa Lane's body was discovered was draining properly on the

day of the crime." (C. 55.) Lane asserts that McRae's testimony was

"improper lay-witness testimony." (C. 56.)

On direct appeal, this Court rejected the underlying claim, finding

"no error, much less plain error," in the admission of McRae's testimony:

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"According to Lane, Det. McRae's testimony that he

thought the overflow drain was working properly constituted

a lay-witness opinion that was not based on facts Det. McRae

personally observed. Thus, Lane argues, Det. McRae's

testimony did not comply with Rule 701, Ala. R. Evid., which

provides that a lay witness's 'testimony in the form of opinions

or inferences is limited to those opinions or inferences which

are (a) rationally based on the perception of the witness and

(b) helpful to a clear understanding of the witness's testimony

or the determination of a fact in issue.' See also Woodward [v.

State], 123 So. 3d [989,] 1023 [(Ala. Crim. App. 2011)] ('It is ...

well settled that a witness can testify to his beliefs, thoughts,

or impressions where he had the opportunity to observe.'

(quoting Sheridan v. State, 591 So. 2d 129, 133 (Ala. Crim.

App. 1991), quoting in turn Williams v. State, 375 So. 2d 1257

(Ala. Crim. App.), cert. denied, 375 So. 2d 1271 (Ala. 1979))).

However, contrary to Lane's contention, Det. McRae's opinion

that he thought the overflow drain was working properly was

based on his personal observation that there 'was no water on

the floor,' despite the facts that water was running from the

bathtub faucet when Wilson discovered Theresa and that

Theresa's body was almost completely submerged in water at

that time. Thus, we find no error, much less plain error, in

allowing Det. McRae to testify that he thought the overflow

drain was working properly on the day Theresa was

murdered."

Lane, 327 So. 3d at 749.

The circuit court, for the reasons this Court gave in Lane, found

that the underlying claim lacked merit. The circuit court thus found that

Lane was due no relief. (C. 295-96.)

On appeal, Lane continues to argue that the underlying claim has

merit and thus his counsel were ineffective. Lane offers nothing that this

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Court did not address in Lane. Because Lane has not shown that the

underlying claim has merit, Lane is due no relief. See Woodward, supra.

The circuit court did not err in summarily dismissing this claim.

See Rule 32.7(d), Ala. R. Crim. P.

d. CHAPLAIN PIERCE'S TESTIMONY

Lane argues that his trial counsel should have timely objected to

Chaplain Pierce's testimony about his conversation with Lane. Lane

asserts that the testimony was privileged under Rule 505, Ala. R. Evid.

(C. 58-59.)

On direct appeal, this Court rejected the underlying claim, finding

"no error, much less plain error," in the admission of Pierce's testimony:

"Pierce testified that Lane telephoned him on the day Theresa

was murdered and asked if Pierce had been to Wilson's house,

if anything in Wilson's house was 'out of place,' if Pierce knew

the cause of Theresa's death, and if 'there was some way

[Pierce] could help [Lane] get the papers to get the insurance

from Wal-Mart.' Even construing the communications-to-

clergy privilege in its ' "broadest sense," ' Tankersley v. State,

724 So. 2d 557, 560 (Ala. Crim. App. 1998) (quoting Rule 505,

Advisory Committee's Notes), Lane's conversation with Pierce

was ' "not related to religious or spiritual concerns," ' Ex parte

Zoghby, 958 So. 2d [314,] 322 [(Ala. 2006)] (quoting

Nussbaumer [v. State], 882 So. 2d [1067,] 1075 [(Fla. Dist. Ct.

App. 2004)]), but, rather, was clearly related to secular

concerns—namely, ascertaining information about the crime

and seeking assistance with a financial matter. In fact, Pierce

himself testified that, when he assists people with financial

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needs, 'that's secular.' (R. 1798.) Thus, Lane was not entitled

to invoke the communications-to-clergy privilege ' " 'to

enshroud conversations with wholly secular purposes solely

because one of the parties to the conversation happened to be

a religious minister.' " ' Id. (quoting Nussbaumer, 882 So. 2d

at 1075), quoting in turn People v. Carmona, 82 N.Y.2d 603,

606 N.Y.S.2d 879, 627 N.E.2d 959, 962 (1993)). Therefore, we

find no error, much less plain error, in allowing Pierce's

testimony."

Lane, 327 So. 3d at 756. This Court also held that, even if there were

error in the admission of Pierce's testimony, that error was harmless

beyond a reasonable doubt because "the most damning part of Pierce's

testimony"—"that, within hours of Theresa's death, Lane sought to

collect the proceeds of Theresa's life-insurance policy"—"was merely

cumulative of Gabel's testimony" that Lane sought to collect those

proceeds on the day of Theresa's death. Id. at 756-57.

The circuit court, for the reasons this Court gave in Lane, found

that the underlying claim lacked merit. The circuit court thus found that

Lane was due no relief. (C. 295-96.)

On appeal, Lane continues to argue that the underlying claim has

merit and thus his counsel were ineffective. Lane offers nothing that this

Court did not address in Lane. Because Lane has not shown that the

underlying claim has merit, Lane is due no relief. See Woodward, supra.

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The circuit court did not err in summarily dismissing this claim.

See Rule 32.7(d), Ala. R. Crim. P.

e. EVIDENCE ABOUT WILSON'S REPORTING THAT JEWELRY

AND CASH WERE MISSING

Lane argues that his trial counsel should have timely objected to

the admission of evidence about Wilson's reporting that jewelry and

$3,600 were missing from her house. Lane asserts, as he did on direct

appeal, that, based on collateral-estoppel principles and principles of

double jeopardy, "[t]he evidence of theft was inadmissible because Mr.

Lane had been acquitted of the theft in his first trial." (C. 60.)

On direct appeal, this Court rejected the underlying claim:

"At Lane's first trial, the trial court submitted three

capital-murder charges to the jury—murder made capital

because it was committed during a burglary, § 13A-5-40(a)(4);

murder made capital because it was committed for pecuniary

gain, § 13A-5-40(a)(7); and murder made capital because it

was committed during a robbery, § 13A-5-40(a)(2), Ala. Code

1975. See Lane, 80 So. 3d at 283 n.2. As to the charge of

capital murder-robbery, the indictment alleged that Lane

intentionally caused Theresa's death while committing a theft

of Wilson's property—namely, $3,600 and various items of

jewelry. … As to that charge, however, the jury found Lane

guilty of the lesser-included offense of murder. See Lane, 80

So. 3d at 283 n.2. According to Lane, by finding him guilty of

murder instead of capital murder-robbery, the jury acquitted

him of the theft of Wilson's property. Thus, Lane argues,

introducing evidence of the theft of Wilson's property at

Lane's second trial violated the doctrine of collateral estoppel,

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which provides that ' " 'when an issue of [ultimate] fact has

once been determined by a valid and final judgment, that

issue cannot again be litigated between the same parties in

any future lawsuit.' " ' State v. Peterson, 922 So. 2d 972, 976

(Ala. Crim. App. 2005) (quoting Ex parte Howard, 710 So. 2d

460, (Ala. 1997), quoting Ashe v. Swenson, 397 U.S. 436, 443,

90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970)).

"The problem with Lane's argument is that, in Lane's

first trial, the theft of Wilson's property was an essential

element of the charge of capital murder-robbery because

robbery in any degree requires proof of a theft or attempted

theft. Ex parte Byner, 270 So. 3d 1162, 1167 (Ala. 2018). In

Lane's second trial, however, Lane was not charged with

capital murder-robbery, nor was the theft of Wilson's property

an element of any of the charges for which Lane was on trial.

Indeed, Lane conceded as much at trial by arguing that

evidence of the theft of Wilson's property did not 'constitute

relevant evidence to the proof of any elements of ... the

indictment.' … Rather, count one of the indictment alleged

that Lane murdered Theresa during the course of a first-

degree burglary by unlawfully entering Wilson's house with

the intent to commit murder or assault …, not theft. See §

13A-7-5, Ala. Code 1975 (first-degree burglary requires proof

of defendant's unlawful presence in a dwelling with the intent

to commit a crime therein). Similarly, count two of the

indictment alleged that Lane murdered Theresa so that he

could collect the proceeds of her life-insurance policy …, not

that he murdered Theresa so that he could commit a theft of

Wilson's property. Consistent with the indictment, the

prosecutor argued during closing arguments that the State

had proven Lane murdered Theresa during the course of a

burglary because it had proven Lane unlawfully entered

Wilson's house with the intent to murder Theresa (R. 2116,

2141-43) and argued that the State had proven Lane

murdered Theresa for pecuniary gain because it had proven

Lane sought to collect the proceeds of Theresa's life-insurance

policy within hours after she was murdered. (R. 2144-45.)

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Thus, unlike the jury in Lane's first trial, the jury in this case

was not required to make any determination as to whether

Lane was guilty of the theft of Wilson's property; that is to

say, the parties were not 'relitigating' the issue of whether

Lane committed the theft of Wilson's property."

Lane, 327 So. 3d at 759-60. 10

The circuit court, for the reasons this Court gave in Lane, found

that the underlying claim lacked merit. The circuit court thus found that

Lane was due no relief. (C. 297-98.)

On appeal, Lane continues to argue that the underlying claim has

merit and thus his counsel were ineffective. Lane offers nothing that this

Court did not address in Lane. Because Lane has not shown that the

underlying claim has merit, Lane is due no relief. See Woodward, supra.

The circuit court did not err in summarily dismissing this claim.

10This Court also held that, to the point Lane contended evidence of

the missing property "was inadmissible because it was not relevant," any

error in that regard was harmless beyond a reasonable doubt because of

the overwhelming evidence of Lane's guilt and because it was "clear

beyond a reasonable doubt to this Court that the jury's verdicts were

based on that evidence and did not hinge on the minimal evidence of the

theft of Wilson's property." Lane, 327 So. 3d at 760-61.

In his Rule 32 petition, Lane did not allege that his trial counsel

were ineffective for failing make a relevancy objection to the evidence.

He likewise does not address this Court's holding in Lane that any error

in the admission of the evidence based on relevancy was harmless beyond

a reasonable doubt.

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See Rule 32.7(d), Ala. R. Crim. P.

6. CROSS-EXAMINATION OF JAY AT LANE'S FIRST TRIAL

Lane alleged in his petition that his replacement trial counsel were

ineffective in cross-examining "witnesses, such as John Jay." (C. 64.)

Lane asserted that replacement counsel should have "emphasize[d] the

inconsistencies in Mr. Jay's testimony from his 2003 statement to police."

(C. 63.)

In summarily dismissing this claim, the circuit court noted that

Lane's argument in support of this claim turned on his contention "that

his prior opportunity to cross-examine witnesses who became

unavailable during his retrial should be presumed inadequate because

choice-of-counsel violations are structural errors." (C. 298.) The circuit

court found that the "choice-of-counsel violation … during [Lane's] first

trial [did] not create an automatic assumption rendering cross-

examination of witnesses deficient." (C. 299.) The circuit court also found

that, because Lane was granted a new trial, the "slate was wiped clean,"

and thus review of his trial counsel's effectiveness was "limited to

counsel's performance during his new trial." (C. 298-99.) Thus, the circuit

court found that Lane was due no relief on this claim.

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On appeal, Lane disagrees with the circuit court's finding that the

"slate was wiped clean" because, he asserts,

"this cross-examination from replacement counsel was

introduced wholesale for critical witnesses. … Further, Mr.

Lane's Rule 32 petition did not automatically assume there to

be a violation, but instead specifically pled why the admission

of infected testimony from 2006 impacted Mr. Lane's 2016

trial. Mr. Lane specifically laid out how at his 2016 trial, the

State relied on the 2006 testimony of the State's only alleged

eyewitness—James Jay—who said that he saw a green Ford

pickup truck pull up in front of the victim's home on the

morning of [Theresa's] death. … Mr. Jay's testimony from

2006 was that he could not say if the man he saw was Black

or white, but that it was a small man, weighing about 120

pounds; Mr. Lane, who is white, weighed over 285 pounds.

"As alleged in the petition, replacement counsel were

ineffective because they failed to emphasize the

inconsistencies in Mr. Jay's testimony from his 2003

statement to police (including that he said the man he saw

was 'sort of dark looking' and 'might have been oriental'), and

the failure by replacement counsel to question Mr. Jay about

these inconsistencies was highly prejudicial to Mr. Lane."

(Lane's brief, pp. 72-73.)

For the reasons stated above, we agree with the circuit court's

conclusion that the error in Lane's first trial did not create an automatic

presumption that his counsel's cross-examination of witnesses in that

trial was constitutionally deficient. To the point that Lane challenges his

replacement counsel's effectiveness in cross-examining Jay, Lane did not

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plead facts showing that counsel's performance was deficient.

" ' "[D]ecisions regarding whether and how to

conduct cross-examinations and what evidence to

introduce are matters of trial strategy and tactics."

Rose v. State, 258 Ga. App. 232, 236, 573 S.E.2d

465, 469 (2002). " ' "[D]ecisions whether to engage

in cross-examination, and if so to what extent and

in what manner, are ... strategic in nature." ' "

Hunt v. State, 940 So. 2d 1041, 1065 (Ala. Crim.

App. 2005), quoting Rosario–Dominguez v. United

States, 353 F. Supp. 2d 500, 515 (S.D.N.Y. 2005),

quoting in turn, United States v. Nersesian, 824

F.2d 1294, 1321 (2d Cir. 1987). "The decision

whether to cross-examine a witness is [a] matter

of trial strategy." People v. Leeper, 317 Ill. App. 3d

475, 483, 251 Ill. Dec. 202, 209, 740 N.E.2d 32, 39

(2000).'

"A.G. v. State, 989 So. 2d 1167, 1173 (Ala. Crim. App. 2007).

' "[T]he scope of cross-examination is grounded in trial tactics

and strategy, and will rarely constitute ineffective assistance

of counsel." ' Bonner v. State, 308 Ga. App. 827, 828, 709

S.E.2d 358, 360 (2011) (quoting Cooper v. State, 281 Ga. 760,

762, 642 S.E.2d 817, 820 (2007))."

Stanley v. State, 335 So. 3d 1, 37 (Ala. Crim. App. 2020).

Replacement counsel in Lane's first trial thoroughly questioned Jay

about what he saw and the circumstances around it, such as the distance

from his house to where he asserted that he saw Lane. Counsel

questioned Jay about Jay's size and weight and asked whether the man

Jay saw "look[ed] like a 285-pound or 300-pound man," to which Jay

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replied that the man did not. (Trial R. 1362-63.) At his new trial in 2016,

Lane's counsel emphasized Jay's testimony that the man he saw was

about Jay's size and not "a 285-pound or 300-pound man." (Trial R. 2159.)

"Merely because counsel did not do more does not make

counsel ineffective. ' "The method and scope of cross-

examination 'is a paradigm of the type of tactical decision that

[ordinarily] cannot be challenged as evidence of ineffective

assistance of counsel.' " ' Davis v. State, 44 So. 3d 1118, 1135

(Ala. Crim. App. 2009) (quoting State ex rel. Daniel v.

Legursky, 195 W. Va. 314, 328, 465 S.E.2d 416, 430 (1995))."

Stanley, 335 So. 3d at 39.

Besides not pleading facts showing counsel's performance was

deficient, Lane made only a mere assertion that counsel's allegedly

deficient performance prejudiced him. Lane is thus due no relief on this

claim. See Rule 32.7(d), Ala. R. Crim. P.

7. FAILURE TO OBJECT TO THE TRIAL COURT'S INSTRUCTION

ON CAPITAL MURDER-BURGLARY

Lane argues that his trial counsel should have objected to the trial

court's instruction on the charge of capital murder-burglary. He asserts,

as he did on direct appeal, that the circuit court did not instruct the jury

on "three crucial elements: that that Mr. Lane acted with the intent to

commit a crime, that he caused physical injury to any person who was not

a participant in the crime; and that the murder took place 'during' the

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burglary." (C. 65.)

On direct appeal, this Court rejected the underlying claim:

"In support of his claim that the trial court erroneously

instructed the jury as to the charge of capital murder-

burglary, Lane alleges that the trial court failed to instruct

the jury that a conviction for capital murder-burglary

required proof that the murder occurred during the burglary.

Lane's argument is wholly without merit. The trial court

began its instructions as to the charge of capital murder-

burglary by instructing the jury that, to convict Lane of that

charge, the jury had to find that the State had proven beyond

a reasonable doubt that Lane committed 'intentional murder

during the commission of a burglary in the first or second

degree.' (R. 2236.) (Emphasis added.) The trial court then

instructed the jury as to the elements of intentional murder,

including the real-and-specific-intent element required for a

capital-murder conviction, Daniels v. State, 650 So. 2d 544

(Ala. Crim. App. 1994), and the elements of first- and second-

degree burglary. (R. 2236-2238.) In concluding its instructions

on the charge of capital murder-burglary, the trial court

stated:

" 'If you find from the evidence that the State

has proved beyond a reasonable doubt each of the

elements of the offense of intentional murder

during a burglary in the first or second degree,

then you shall find the defendant guilty of the

offense of capital murder in Count One.'

"(R. 2238.) (Emphasis added.) Thereafter, the trial court

charged the jury on intentional murder as a lesser-included

offense of capital murder-burglary and concluded its

instructions on the intentional-murder charge as follows:

" 'Bear in mind that if the defendant is guilty

of intentional murder he may also be guilty of

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capital murder if committed or coupled with

additional circumstances such as I stated earlier,

that the intentional murder was committed during

the commission of a burglary first or second

degree."

"(R. 2240.) (Emphasis added.)

"Contrary to Lane's contention, the trial court clearly

instructed the jury that a conviction for capital murder-

burglary required proof that the murder occurred during the

burglary. Thus, we find no error, much less plain error, in the

trial court's jury instruction."

Lane, 327 So. 3d at 759-60.

The circuit court, for the reasons this Court gave in Lane, found

that the underlying claim lacked merit. The circuit court thus found that

Lane was due no relief. (C. 299-300.)

On appeal, Lane continues to argue that the underlying claim has

merit and thus his counsel were ineffective. Lane offers nothing that this

Court did not address in Lane. Because Lane has not shown that the

underlying claim has merit, Lane is due no relief. See Woodward, supra.

The circuit court did not err in summarily dismissing this claim.

See Rule 32.7(d), Ala. R. Crim. P.

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8. FAILURE TO OBJECT TO THE STATE'S ALLEGED VIOLATION

OF BATSON V. KENTUCKY 11

Lane asserts that his trial counsel were ineffective for not

challenging the State's use of peremptory challenges in an allegedly

discriminatory manner. In his petition, Lane raised the same underlying

claims that this Court rejected on direct appeal, adding nothing new

other than that his trial counsel's failure to object was ineffective

assistance of counsel. (Compare C. 65-77 with Lane's brief in CR-15-

1087, pp. 25-38.) On appeal, Lane generally reiterates the allegations

from his petition, but he does not assert in detail his allegations about

specific jurors. We thus question whether Lane has waived his claims

related to specific jurors. See, e.g., Thompson, 310 So. 3d at 887

(ineffectiveness claim was waived on appeal because appellant failed to

explain how the circuit court erred when it summarily dismissed his

claim). At any rate, Lane is due no relief.

On direct appeal, this Court thoroughly analyzed the substance of

Lane's Batson claim in detail and rejected it:

"In support of his Batson claim, Lane alleges that the

State 'used 10 of its 21 [peremptory] strikes, or 48%, against

African American veniremembers, despite the fact that

11Batson v. Kentucky, 476 U.S. 79 (1986).

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African Americans represented 23% of qualified jurors. These

10 strikes resulted in the removal of 83% of qualified African

Americans from the venire.' Lane's brief, at 25. According to

Lane, such 'statistical evidence ... created a presumption of

discrimination' against black veniremembers and 'evince[s] a

"pattern of strikes" against African Americans.' Id. However,

'numbers and statistics do not, alone, establish a prima facie

case of racial discrimination' in the State's use of its

peremptory strikes. Petersen v. State, 326 So. 3d 535, 567

(Ala. Crim. App. 2019). Thus, the statistics Lane cites are

insufficient in and of themselves to support a prima facie case

of racial discrimination in the State's use of its peremptory

strikes. Rather, those statistics are relevant, if at all, only

when coupled with other evidence in the record that tends to

indicate the State used its peremptory strikes in a racially

discriminatory manner. Henderson [v. State], 248 So. 3d

[992,] 1018 [(Ala. Crim. App. 2017)]. As will become clear, no

such evidence exists in this case.

"To begin, Lane alleges that the Mobile County District

Attorney's Office has a history of 'repeatedly remov[ing] at

least 75% of African American veniremembers.' Lane's brief,

at 27. However, the State contends that the prosecutor in this

case, Ashley Rich, assumed office in 2011—a fact Lane does

not dispute—and all but three of the cases Lane cites in

support of his allegation were tried before Rich assumed

office. See Dotch v. State, 67 So. 3d 936, 982 (Ala. Crim. App.

2010) (noting that 'none of the cases cited by Dotch as

indicating a history of discrimination occurred within the last

decade or involved the prosecutor in Dotch's case' (emphasis

added)). Furthermore, as to those three cases Lane cites that

were tried after Rich assumed office, this Court did not find

evidence of a Batson violation in DeBlase v. State, 294 So. 3d

154 (Ala. Crim. App. 2018), and did not even address a Batson

claim in Horton v. State, 217 So. 3d 27 (Ala. Crim. App. 2016),

and Kennedy v. State, 186 So. 3d 507 (Ala. Crim. App. 2015).

See Stanley v. State, 143 So. 3d 230, 257 (Ala. Crim. App.

2011) (noting, in rejecting appellant's claim that the Colbert

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County District Attorney's Office has a history of gender

discrimination in its jury selection, that appellant had 'not

cited even a single case in which a court has found that the

Colbert County District Attorney's Office has' engaged in

gender discrimination). Thus, this argument does not support

a prima facie case of racial discrimination in the State's use of

its peremptory strikes.

"Lane also alleges that the State engaged in 'disparate

treatment of members of the jury venire who were similarly

situated[.]' Henderson, 248 So. 3d at 1017. Specifically, Lane

notes that the State struck black veniremembers L.R., C.P.,

K.H., E.B., M.M., A.W., D.B., and B.P., and although the State

proffered race-neutral reasons for the strikes, Lane argues

that the reasons were pretextual because, he says, those black

veniremembers were similarly situated to white

veniremembers who were seated on the jury. To find a prima

facie case of disparate treatment in the State's use of its

peremptory strikes, the 'disparate treatment [must be]

"obvious on the face of the record." ' White [v. State], 179 So.

3d [170,] 202 [(Ala. Crim. App. 2013)] (quoting Ex parte

Walker, 972 So. 2d 737, 753 (Ala. 2007)).

"As to prospective juror L.R., the State noted that it

struck L.R. because he 'had only served one year in the

military and he was discharged and it was honorable or

dishonorable.' (R. 1397.) See State v. Heard, 917 So. 2d 658,

665 (La. Ct. App. 2005) (striking prospective juror who had

dishonorable or less-than-honorable military discharge was 'a

race-neutral decision to exclude anyone that may have had a

problem with authority in the military'). Lane notes, however,

that the State did not strike white juror S.W., who indicated

that he was honorably discharged from the Navy. However,

S.W. also indicated that he eventually 'went back in the Navy

and finished [his] Navy career.' (R. 869-70.) Thus, L.R., who

did not complete a term of military service, and S.W., who did

complete a term of military service, were not so similarly

situated as to support an inference of racial discrimination in

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the State's use of its peremptory strikes.11 See Wiggins v.

State, 193 So. 3d 765, 790 (Ala. Crim. App. 2014) (noting that

plain-error review of a Batson claim requires this Court ' "to

determine if, despite a similarity, there are any significant

differences between the characteristics and responses of the

veniremembers" ' and that ' "[p]otential jurors may possess the

same objectionable characteristics, but in varying degrees" '

(quoting, respectively, Leadon v. State, 332 S.W.3d 600, 612

(Tex. App. 2010), and Johnson v. State, 959 S.W.2d 284, 292

(Tex. App. 1997))). Furthermore, even if the failure to

complete a term of military service as opposed to the

completion of a term of military service is not a relevant

distinction between prospective jurors, the State also struck

L.R. because he 'was a caretaker for his brother in their family

home' (R. 1396), which was a characteristic not applicable to

S.W. and is a valid race-neutral reason for striking a

prospective juror. Jackson v. State, 791 So. 2d 979, 1007 (Ala.

Crim. App. 2000). In addition, we note that L.R. did not

indicate on his juror questionnaire whether he was in favor of

the death penalty (R. 597), and during individual voir dire

L.R. indicated that he did not 'really have an opinion one way

or the other' on the death penalty (R. 597) and that he had not

'thought about the death penalty prior to [being selected] for

jury service.' (R. 601.) S.W., on the other hand, indicated that

he was 'in favor of' the death penalty. (R. 863.) See People v.

Mai, 57 Cal. 4th 986, 161 Cal. Rptr. 3d 1, 305 P.3d 1175, 1222

(2013) (peremptory strike against prospective juror was race-

neutral, despite the fact that both prospective juror and

seated juror expressed ability to vote for death penalty, where

seated juror 'expressed much stronger views in favor of the

death penalty'). Thus, because the State struck L.R. for valid

race-neutral reasons that did not apply to S.W., 'disparate

treatment is not "obvious on the face of the record," ' White,

179 So. 3d at 202 (quoting Ex parte Walker, 972 So. 2d at 753),

by virtue of the fact that the State struck L.R. but did not

strike S.W.

"As to prospective juror C.P., the State noted that it

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struck C.P. because he indicated that he believed he had been

wrongfully arrested in the past. See United States v. Brown,

809 F.3d 371 (7th Cir. 2016) (prospective juror's belief that he

had been wrongfully arrested was race-neutral reason for

peremptory strike). Lane notes, however, that the State did

not strike white juror S.W., who, according to Lane, also

indicated that he had been wrongfully arrested. However,

contrary to Lane's allegation, S.W. did not indicate that he

had been wrongfully arrested but, rather, stated that his case

had been dismissed after he had completed 20 hours of

community service. (R. 867.) In fact, S.W. indicated that he

believed he had been treated fairly during his case and that

he had 'no issue with the process that [he] went through.' (R.

867.) Thus, C.P., who believed that he had been wrongfully

arrested, and S.W., who did not express such a belief, were

not similarly situated. See Brown, 809 F.3d at 375 ('[T]he

jurors that Brown points to were not similarly situated to

Juror 74. With regard to Juror 81, having charges dropped is

distinguishable from being wrongly arrested. ... As for Juror

3, being charged and convicted is readily distinguishable from

being wrongly arrested.'). In addition, the State notes that it

also struck three white veniremembers who indicated that

members of their families had been wrongfully arrested or

convicted (R. 1387, 1389, 1392), which tends to indicate that

striking C.P. did not constitute disparate treatment of black

and white veniremembers by the State but, rather, was

consistent with the State's attempt to strike any

veniremembers, regardless of their race, who had had

potentially negative experiences with law enforcement. See

Whatley v. State, 146 So. 3d 437, 455 (Ala. Crim. App. 2010)

(' " 'Where whites and blacks are struck for the same reason,

there is no evidence of disparate treatment.' " ' (quoting Bush

v. State, 695 So. 2d 70, 100 (Ala. Crim. App. 1995), affirmed,

695 So. 2d 138 (Ala.), cert. denied, Bush v. Alabama, 522 U.S.

969, 118 S. Ct. 418, 139 L. Ed. 2d 320 (1997), quoting in turn

Carrington v. State, 608 So. 2d 447, 449 (Ala. Crim. App.

1992))). Thus, for the foregoing reasons, 'disparate treatment

is not "obvious on the face of the record," ' White, 179 So. 3d at

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202 (quoting Ex parte Walker, 972 at 753), by virtue of the

fact that the State struck C.P. but did not strike S.W.

"As to prospective juror K.H., the State noted that it

struck K.H. because her boyfriend had once worked as a law

enforcement officer but had quit after deciding that 'law

enforcement was not for him.' (R. 1383.) Lane notes, however,

that the State did not strike white juror S.W., who also

indicated that he had worked as a law enforcement officer for

a brief period before deciding that 'it wasn't for [him].' (R.

869.) However, the State struck K.H. for multiple race-neutral

reasons that were not applicable to S.W., including that K.H.

'did not believe in the death penalty and ... did not feel it was

her right to determine if someone lives or dies' (R. 1382) and

that she 'had an uncle that was guilty of theft [and] another

uncle that was guilty of assault.' (R. 1382-83.) See Gobble [v.

State], 104 So. 3d [920,] 949 [(Ala. Crim. App. 2010)] (noting

that ' "[t]he peremptory strike of a prospective juror who had

expressed reservations about the death penalty [is]

sufficiently race-neutral so as to not violate Batson" ' and that

' "[s]triking a prospective juror because a member of the

juror's family has been convicted of a crime is a valid race-

neutral reason under Batson" ' (quoting, respectively, Acklin

v. State, 790 So. 2d 975, 988 (Ala. Crim. App. 2000), and Lewis

v. State, 741 So. 2d 452, 456 (Ala. Crim. App. 1999))). This

Court has previously held that

" 'merely because [a prospective juror and a seated

juror] shared one commonality ... does not make

those jurors similarly situated and does not

establish disparate treatment on the part of the

State. "Where multiple reasons lead to a

peremptory strike, the fact that other jurors may

have some of the individual characteristics of the

challenged juror does not demonstrate that the

reasons assigned are pretextual." '

"DeBlase, 294 So. 3d at 203 (quoting Luong v. State, 199 So.

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3d 173, 191 (Ala. Crim. App. 2015)). See also Wiggins, 193 So.

3d at 790 (' "The fact that jurors remaining on the panel

possess one [or] more of the same characteristics as a juror

that was stricken[] does not establish disparate treatment." '

(quoting Barnes v. State, 855 S.W.2d 173, 174 (Tex. App.

1993))). Thus, because K.H. and S.W. shared one common

characteristic but were also different in meaningful ways,

'disparate treatment is not "obvious on the face of the record," '

White, 179 So. 3d at 202 (quoting Ex parte Walker, 972 So. 2d

at 753), by virtue of the fact that the State struck K.H. but did

not strike S.W.

"In further support of the State's allegedly disparate

treatment of similarly situated black and white

veniremembers, Lane notes that the State struck black

veniremembers K.H., E.B., M.M., A.W., D.B., and B.P.

because they or members of their families had 'contact with

the criminal justice system' but 'ignor[ed] similar involvement

among four seated white jurors.' Lane's brief, at 37. However,

as noted, 'merely because [prospective jurors and seated

jurors] shared one commonality ... does not make those jurors

similarly situated and does not establish disparate treatment

on the part of the State. DeBlase, 294 So. 3d at 203. Rather,

plain-error review of a Batson claim requires this Court to

' "look to the entire record to determine if, despite a similarity,

there are any significant differences between the

characteristics and responses of the veniremembers that

would, under the facts of this case, justify the prosecutor

treating them differently as potential members of the jury." '

Wiggins, 193 So. 3d at 790 (quoting Leadon, 332 S.W.3d at

612).

"Here, in addition to 'contact with the criminal justice

system,' the State provided additional race-neutral reasons

for striking K.H., E.B., M.M., A.W., D.B., and B.P. As noted,

the State struck K.H. because she 'did not believe in the death

penalty and ... did not feel it was her right to determine if

someone lives or dies.' See Gobble, supra. The State struck

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E.B. because 'she put on her death penalty question it has to

be guilty beyond a shadow of a doubt.' (R. 1394.) See Whatley

v. State, 146 So. 3d 437, 456 (Ala. Crim. App. 2010) (' "[T]he

fact that a veniremember would hold the State to a higher

burden of proof is a race-neutral reason for striking that

veniremember." ' (quoting Blanton v. State, 886 So. 2d 850,

874 (Ala. Crim. App. 2003), cert. denied, 886 So. 2d 886 (Ala.

2004), cert. denied, Blanton v. Alabama, 543 U.S. 878, 125 S.

Ct. 119, 160 L. Ed. 2d 131 (2004))). The State struck M.M. not

simply because she had had 'contact with the criminal justice

system' but because she failed to disclose her prior theft

conviction and because she knew one of the State's witnesses.

See Sharp v. State, 151 So. 3d 342, 368 (Ala. Crim. App. 2010)

(prior conviction is race-neutral reason for peremptory strike

and prospective jurors who failed to disclose prior convictions

were not similarly situated to seated juror who did disclose

prior conviction); and Creque v. State, 272 So. 3d 659, 709

(Ala. Crim. App. 2018) (fact that prospective juror knew

potential witness was race-neutral reason for strike). The

State struck A.W. because 'she used to not believe in the death

penalty ... when she was younger but now ... she does.' (R.

1388.) See State v. Wilson, 938 So. 2d 1111, 1135 (La. Ct. App.

2006) (no error by trial court in accepting State's peremptory

strike of juror who indicated that she did not believe in the

death penalty in the past but had changed her opinion). The

State struck D.B. because she also once 'didn't believe in [the

death penalty] and then she changed her mind' (R. 1386) and

because she believed the evidence 'had to be without a doubt.'

(R. 1387.) See Wilson, supra, and Whatley, supra. The State

struck B.P. not simply because her brother had had 'contact

with the criminal justice system' but because she believed her

brother had been wrongfully convicted of murder and because

she suffered from back pain, hypertension, and diabetes.

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