Joseph Michael Wilson v. State of Alabama

Rel: August 22, 2025

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-21-0109

_________________________

Joseph Michael Wilson

v.

State of Alabama

Appeal from Madison Circuit Court

(CC-97-164.60)

On Application for Rehearing

COLE, Judge.

The opinion issued on June 28, 2024, is withdrawn, and the

following is substituted therefor.

CR-21-0109

Joseph Michael Wilson, an inmate on Alabama's death row, appeals

the Madison Circuit Court's judgment summarily dismissing his Rule 32,

Ala. R. Crim. P., petition for postconviction relief.

Facts and Procedural History

"In September 1996, Michelle Hayden and Ashley

Rutherford, who were engaged to be married, lived together

in a room in the house in which Rutherford's aunt lived. On

or about September 18, 1996, [Wilson], Nicholas Acklin, and

Corey Johnson went to Rutherford's residence and acted like

they wanted to buy some marijuana. After looking at the

marijuana, the three men left. However, Johnson returned,

asked to see the marijuana again, and then grabbed the

marijuana and left. Shortly thereafter, Lamar Hemphill, who

was visiting Rutherford, realized that his cellular telephone

was missing. When he called the telephone's number,

[Wilson] answered. Hemphill then filed a complaint with the

sheriff's department, alleging that [Wilson] stole his cellular

telephone. A few days later, [Wilson] discovered that a

complaint had been filed against him.

"On September 25, 1996, Hayden, Hemphill, and Brian

Carter were watching television in Hayden and Rutherford's

room while Rutherford was at work. Michael Skirchak and

Johnny Couch, who were on their way to pick up Michael

Beaudette, stopped to visit them. Around 10 p.m., [Wilson],

Acklin, and Johnson arrived, and [Wilson] started asking who

had filed a warrant against him for taking a cellular

telephone. Hemphill stated that he did not know anything

about a warrant and that only a complaint had been filed.

Johnson then started slapping Hemphill, Couch, Carter, and

Skirchak around. Using a Jack Daniel's whiskey bottle, he

hit Hemphill in the head and Carter in the mouth. He also

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grabbed Couch by his hair, which was long, and repeatedly

slammed his head into a dresser. At one point, Johnson held

Couch up by his hair, and [Wilson] cut Couch's hair. [Wilson]

also repeatedly 'stomped' Couch, who was lying on the floor.

Sometime later, Beaudette arrived and was told to empty his

pockets.

"[Wilson], Acklin, and Johnson were all armed with

pistols. At one point, while Acklin and Johnson remained

armed, [Wilson] laid his gun on a table and dared the others

to grab it. He also held his gun to Skirchak's head and asked

him about the warrant. During the evening, [Wilson] made

some of the males take off their pants and give him their

identification cards. He also made statements like 'Y'all don't

know who you're f______ with. Y'all are fake. We're real.' (R.

780), and 'I ain't even supposed to be here. I'm the leader of

this crew. I'm not even supposed to be here. I'm supposed to

be at home with my wife or girlfriend.' (R. 780-81.)

Throughout the evening, [Wilson] repeatedly said, 'This is my

crew.'

"Around 11:20 or 11:30 p.m., Rutherford came home

from work. [Wilson], Acklin, and Johnson questioned him

about the warrant and warned him not to lie to them. They

made him take his pants off, and [Wilson] took two necklaces

from him. [Wilson] yelled at Rutherford, slapped him, and

spit in his face. He also made Hayden say 'My boyfriend

[Rutherford] ain't s___.' Additionally, Acklin put a gun in

Rutherford's mouth and made him gag.

"Throughout the evening, [Wilson] repeatedly made

comments like, 'Let's buck them' and 'You don't f___ with

Joey's crew.' Witnesses testified that 'buck' meant 'shoot' or

'kill.' One time, Hayden told [Wilson] to be quiet or he would

wake up Rutherford's aunt. In response, [Wilson] said, 'Well,

we can take care of her too.' (R. 1448.) As the violence

escalated, Johnson tried to stop [Wilson] and Acklin, but they

made fun of him. Finally, [Wilson] told Acklin that if Acklin

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would shoot the first one, he would shoot the rest of them.

Shortly after that comment, Acklin grabbed Rutherford and

shot him in the back of the head. [Wilson] then started

shooting. When the shooting started, Skirchak ran out of the

house and sought help. After firing 19 times, [Wilson], Acklin,

and Johnson left, and Rutherford and his aunt telephoned for

help.

"Medical personnel and law enforcement officers arrived

around midnight, and Rutherford immediately identified

[Wilson] as the perpetrator. Around 12:15 a.m., officers

apprehended [Wilson] and Johnson and found a revolver that

had been used in the incident in their vehicle. Later, they

found a Ruger P89, two Lorcin pistols, another revolver, and

Beaudette's driver's license at Acklin's residence.

"After they arrested him, [Wilson] made a statement to

Investigator Kevin Turner about his involvement in the

offense. In that statement, [Wilson] admitted that he, Acklin,

and Johnson went to Rutherford's residence about a dispute

over a cellular telephone. He stated that he had a revolver

and that Acklin and Johnson also had weapons. He admitted

that they slapped some of the victims and that one thing led

to another and the shooting started. When the shooting

started, he said he ran to his vehicle, Acklin and Johnson

followed him, and they all left. He initially told Turner he did

not remember who did the shooting, but then said, '[T]hat's

my crew y'all got locked up out there. I'm not going to turn

and rat on them.' (R. 922.)

"At trial, one of [Wilson's] friends testified that [Wilson]

telephoned him from jail after the offense, talked about the

incident, and told him to 'finish the job,' which he took to mean

to kill the surviving witnesses. One of [Wilson's] cell mates

testified that [Wilson] had bragged about his involvement in

the offense. He also testified that [Wilson] had made

statements about having friends 'on the outside' who had

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CR-21-0109

persuaded Hayden not to testify and who could 'take care of'

witnesses in the cell mate's case.

"Hemphill, Beaudette, Couch, Carter, Hayden, and

Rutherford sustained gunshot wounds as a result of the

incident. Hemphill, Beaudette, Couch, and Carter died as a

result of the gunshot wounds they sustained, and Hayden and

Rutherford were injured. Forensic testing revealed that

Carter had been shot with a Ruger P89, and Skirchak,

Hayden, and Rutherford testified that [Wilson] had been

armed with a Ruger P89. During the penalty phase of the

trial, [Wilson] admitted that he had been armed with a Ruger

P89 and that he had shot Carter, but denied that he had shot

anyone else."

Wilson v. State, 777 So. 2d 856, 874-76 (Ala. Crim. App. 1999).

In January 1997, Wilson was indicted for two counts of capital

murder -- one count for killing Hemphill, Beaudette, Couch, and Carter

"by one act or pursuant to one scheme or course of conduct," a violation

of § 13A-5-40(a)(10), Ala. Code 1975, and one count for causing their

deaths during the course of a first-degree burglary, a violation of § 13A-

5-40(a)(4), Ala. Code 1975 -- and two counts of attempted murder for

shooting Rutherford and Hayden, violations of §§ 13A-4-2 and 13A-6-2,

Ala. Code 1975.

In late 1998, Wilson was convicted of capital murder for killing two

or more persons pursuant to one scheme or course of conduct and for two

counts of attempted murder. As to his capital-murder conviction, the jury

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CR-21-0109

unanimously recommended that Wilson be sentenced to death, and the

trial court followed that recommendation. As to his attempted-murder

convictions, the trial court sentenced Wilson to 20 years' imprisonment

for each offense, ordering his 20-year sentences to run consecutively with

his death sentence. This Court affirmed Wilson's capital-murder

conviction and death sentence on November 19, 1999.1 See Wilson,

supra. The Alabama Supreme Court affirmed this Court's judgment on

September 20, 2000. See Ex parte Wilson, 777 So. 2d 935 (Ala. 2000).

This Court issued a certificate of judgment that same day.

On December 21, 2001, Wilson filed a Rule 32 petition, challenging

his capital-murder conviction and death sentence as well as his

attempted-murder convictions and 20-year sentences.2 In his initial

petition, Wilson alleged the following:

1Wilson did not appeal his attempted-murder convictions or his 20-

year sentences.

2"Rule 32.2(c), Ala. R. Crim. P., was amended effective August 1,

2002, to reduce the limitations period from two years to one year;

however, for those cases that became final before August 1, 2001, the two-

year limitations period applies. See Hyde v. State, 950 So. 2d 344 (Ala.

Crim. App. 2006)." Bryant v. State, 29 So. 3d 928, 933 n.2 (Ala. Crim.

App. 2009). Because Wilson's capital-murder conviction became final on

September 20, 2000, the two-year limitations period applies to his Rule

32 petition.

6

CR-21-0109

• That his trial counsel were ineffective.

• That the State failed to comply with Brady v. Maryland,

373 U.S. 83 (1963).

• That the trial court erred when it admitted evidence of

Wilson's prior offenses.

• That the trial court erred when it admitted "improper

opinion testimony in support of aggravating

circumstances." (Supp. Record on Appeal, C. 61.)

• That the trial court erred "by not instructing the jury on

the lesser-included offense of felony murder." (Supp.

Record on Appeal, C. 62.)

• That the trial court and the State "improperly

minimized the jury's role in the capital sentencing

scheme." (Supp. Record on Appeal, C. 64.)

• That the trial court erred when it improperly instructed

the jury. (Supp. Record on Appeal, C. 66.)

• That the "indictment did not correspond with the State's

proof, denying [him] a fair trial and an accurate

sentencing determination." (Supp. Record on Appeal, C.

68.)

• That the State improperly "used peremptory strikes to

remove women from the jury." (Supp. Record on Appeal,

C. 70.)

• That the State improperly "commented on [his] silence"

after he had been Mirandized. (Supp. Record on Appeal,

C. 71.)

7

CR-21-0109

• That the trial court "failed to consistently find and

consider mitigating circumstances." (Supp. Record on

Appeal, C. 72.)

• That the State engaged in prosecutorial misconduct;

that "the jury was improperly informed about the case

outside the presence of the trial court or Mr. Wilson

because the trial court failed to control the venire."

(Supp. Record on Appeal, C. 85-86.)

• That the trial court erred when it did not "grant [him]

youthful offender status." (Supp. Record on Appeal, C.

86.)

• That he did not have an "impartial and fair minded jury"

because the trial court "refused to excuse unqualified

jurors or allow individual voir dire." (Supp. Record on

Appeal, C. 87.)

• That the trial court improperly interfered with voir dire.

• That the trial court "erred by relying on an inadequate

and cursory presentence report." (Supp. Record on

Appeal, C. 91.)

• That "the aggravating circumstance that Mr. Wilson

created a great risk of death to many persons is

unconstitutionally vague." (Supp. Record on Appeal, C.

92.)

• That the trial court erred when it denied his motion for

a change of venue, when it did not allow him to depose

the State's expert witness, and when it admitted certain

photographs at his trial; that "a strong victim's presence

in the courtroom deprived [him] of a fair trial and

accurate sentence determination." (Supp. Record on

Appeal, C. 98.)

8

CR-21-0109

• That the manner of execution in Alabama -- at the time,

electrocution -- is unconstitutional; that the State's

evidence was insufficient to show that Wilson

committed a capital murder of two or more people

pursuant to one scheme or course of conduct.

• That the State's evidence was insufficient to support his

attempted-murder convictions.

• That "the cumulative effect of all the above listed claims

entitles [him] to postconviction relief." (Supp. Record on

Appeal, C. 105.)

After Wilson filed his petition, the following occurred:

"On March 14, 2002, Wilson's attorney filed a motion seeking

a status or scheduling conference and also seeking leave to

amend the petition. In support of the request to amend the

petition, the attorney alleged that he had been hired only a

few days before the petition was filed; that, due to previous

obligations, he had been unable to work on Wilson's case until

the third week in January and that he had not met with

Wilson until February 14, 2002. Counsel also alleged that

several additional meritorious issues existed and needed to be

raised in the petition and that the request to amend the

petition was not made for purposes of delay. Also on March

14, 2002, Wilson filed an amendment to the Rule 32 petition.

On March 18, 2002, the State, through the attorney general,

filed the following documents: an answer to the original

petition; the affidavit of Randall Gladden, the lead attorney

who represented Wilson at trial; a motion for summary

dismissal; and a proposed order dismissing the petition. On

March 26, 2002, the Madison County District Attorney filed a

response to the original petition. The prosecutor alleged in

that response that the petition was due to be summarily

dismissed.

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"Although the record does not contain an order setting a

hearing on the State's motion for summary dismissal, it

appears that a hearing was set for May 23, 2002, because on

April 23, 2002, Wilson filed a motion seeking a continuance of

a hearing set for May 23, 2002. The trial court granted the

motion on April 24, 2002. On May 6, 2002, the State filed a

document opposing any further continuances and requesting

that an evidentiary hearing be held on any motion to amend

that Wilson might later file.

"On July 15, 2002, Wilson filed numerous documents.

He filed a motion for leave to file a second amended petition

and a memorandum of law in support of that motion; he also

submitted an amended petition. He filed a motion for

discovery, seeking production of the file that the prosecutor

had provided to trial counsel and seeking any other

documents that should have been, but were not, provided to

trial counsel. He filed a motion for an evidentiary hearing and

an objection to the trial court's adopting verbatim any orders

submitted by the State. He also filed a response to the State's

answer and argued in that response that the claims raised in

the petition were not procedurally barred and that he was

entitled to a hearing. On July 19, 2002, the trial court held a

hearing on the State's motion for summary dismissal. At that

hearing, the parties presented their arguments regarding

whether the original petition was due to be dismissed or

whether a hearing on the merits of the petition should be held.

The trial court reserved its ruling on the motion. On August

9, 2002, Wilson filed a motion for leave to file a third

amendment to his petition and he submitted an amended

petition; on August 21, 2002, Wilson filed a motion for leave

to file a fourth amendment to the petition and he filed an

amended petition; and on August 28, 2002, Wilson filed a

motion for leave to file a fifth amendment to the petition and

he filed an amended petition. In September 2002, Wilson filed

a supplemental brief in support of his request for an

evidentiary hearing, and he cited Ex parte MacEwan, 860 So.

10

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2d 896 (Ala. 2002), in support of his request for an evidentiary

hearing.

"On October 16, 2002, the circuit court issued an order

summarily dismissing the Rule 32 petition. The court

determined that a majority of the claims asserted in the

petition were procedurally barred and that the few ineffective-

assistance-of-counsel claims that were not procedurally

barred had no merit. The trial court also denied all of Wilson's

motions to amend the Rule 32 petition."

Wilson v. State, 911 So. 2d 40, 42-43 (Ala. Crim. App. 2005) (footnotes

and record citations omitted). Wilson appealed the circuit court's

judgment.

In that appeal, Wilson argued, in part, that the circuit court "erred

when it 'ignored' his repeated requests to amend the Rule 32 petition."

911 So. 2d at 44. On April 29, 2005, this Court, relying on Ex parte

Rhone, 900 So. 2d 455 (Ala. 2004), issued an opinion agreeing with

Wilson and explaining as follows:

"Wilson filed the petition on December 21, 2001. He

filed motions to amend and he filed amendments to the

petition from March 2002 through August 2002. The trial

court summarily denied all of the motions to amend the

petition in the same written order in which it denied relief on

the original Rule 32 petition. All of Wilson's proposed

amendments were filed before the expiration of the

limitations period of Rule 32.2(c), Ala. R. Crim. P. The State's

arguments in support of the denial of the motions to amend

-- that Wilson did not establish that the amendments were

based on surprise, newly discovered evidence, or changed

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circumstances, and that Wilson failed to establish that his

attorney acted diligently in filing the amendments -- fail to

acknowledge the standard the Alabama Supreme Court has

established for evaluating whether an amendment to a Rule

32 petition was properly denied. That standard, as expressed

in Ex parte Rhone, [900 So. 2d 455 (Ala. 2004)], does not

require Wilson to establish that the allegations in the

proposed amendments were based on surprise, newly

discovered evidence, or changed circumstances, nor did it

require proof that counsel acted diligently. The Alabama

Supreme Court in Ex parte Rhone overruled Cochran v. State,

548 So. 2d 1062 (Ala. Crim. App. 1989), and any other prior

decisions that purported to place on the petitioner the burden

of showing due diligence in filing the amendment or showing

that the facts underlying the amendment were not known

when the initial petition was filed. 900 So. 2d at 458. The

Court in Ex parte Rhone stated, 'The right to amend is limited

by the trial court's discretion to refuse an amendment based

upon factors such as undue delay or undue prejudice to the

opposing party.' Id.

"Wilson's first amended petition was filed on March 14,

2002, before the State filed its answer. Certainly there was

no undue delay and no prejudice to the State with regard to

this amendment. The trial court abused its discretion when

it denied Wilson's motion to amend the petition to include

more specific allegations of ineffective assistance of counsel.

"It is important to note that, when the State filed its

answer to Wilson's original petition, it also filed an affidavit

from Wilson's lead trial attorney. In the affidavit the attorney

offered his explanations for some of the decisions he made

during the trial, such as his determination that a defense

based on mercy was appropriate. In the July 15, 2002, second

amended petition, Wilson stated, 'For continuity reasons,

Joseph Wilson is merging the allegations of his first

amendment to his Rule 32 petition into his second

amendment to his rule [sic] petition.' (C. 220.) In the second

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amended petition, Wilson directly addressed the claims made

by his lead trial attorney in the affidavit the State submitted

with its answer and alleged that trial counsel did not conduct

an investigation into possible mitigation evidence. Wilson

alleged that trial counsel had known that he had ingested

drugs and alcohol on the evening the crime was committed,

but that they did not further investigate his addiction. Wilson

further alleged that because trial counsel failed to conduct an

investigation into mitigation evidence, they failed to discover

numerous pieces of potential mitigation evidence, such as the

facts that Wilson had physical problems at birth, and at the

time of the crime was on medication that might have affected

his behavior; that as a child his home life was 'disturbed' and

that his behavior at school indicated a possible learning

disability; and that he had been abusing drugs and alcohol for

years. Wilson also alleged that trial counsel failed to move for

expert assistance from a mental health professional who could

have investigated, developed, and presented the mitigation

evidence, and that the failure to discover and present

mitigation evidence prejudiced his case. Wilson's second

amended petition contained additional responses to the trial

attorney's affidavit and further developed claims raised in the

original petition.

"The trial court erred when it denied Wilson's motion to

file the second amended petition. The second amended

petition was filed seven months after the original petition was

filed; it specifically responded to allegations in the State's

answer to the petition and to claims trial counsel made in the

affidavit accompanying the answer. The trial court relied on

trial counsel's affidavit when it denied Wilson's ineffective-

assistance claims, yet by refusing to hold an evidentiary

hearing and by denying Wilson's motion to amend, it also

unilaterally denied Wilson his right to counter the evidence

presented by the State. Under the principles clearly

expressed by the Alabama Supreme Court in Ex parte Rhone,

we are compelled to hold that the trial court erred to reversal

when it denied Wilson's second motion to amend the petition.

13

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"Wilson's revised third amended petition, filed on

August 19, 2002, contains several claims related to Ring v.

Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556

(2002), which was released after the original petition was

filed. The trial court abused its discretion when it denied

Wilson's motion to file the third amended petition. There was

no undue delay in the filing and there would have been no

undue prejudice to the State if the trial court had granted the

motion to amend. Although the trial court erred when it

denied the motion to file the third amended petition, that

error was harmless. In Schriro v. Summerlin, 542 U.S. 348,

124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), the United States

Supreme Court held that the rule announced in Ring does not

apply retroactively to postconviction cases. Wilson had filed

his postconviction petition before Ring was decided.

Therefore, even if the trial court had granted the motion to

amend, Wilson would not have been entitled to any relief.

"The trial court erred when it denied Wilson's August

21, 2002, motion to file a fourth amended petition, and

Wilson's August 28, 2002, motion to file a fifth amended

petition. In the fourth amendment, Wilson further responded

to the affidavit of trial counsel that had been submitted with

the State's answer. In that amendment Wilson made

additional allegations of ineffective assistance of counsel. In

the fifth amendment, Wilson responded to trial counsel's

allegations regarding the mitigation case he presented at trial

and quoted from an article regarding investigation in capital

cases. Because the trial court failed to hold an evidentiary

hearing, Wilson was able to respond to the assertions in his

lead trial counsel's affidavit only by filing amendments to the

original petition. Concerns of undue delay and undue

prejudice to the State were not implicated as a result of these

amendments; concerns of fairness and due process were

implicated. Therefore, the trial court should have granted

Wilson's motion to file the fourth and fifth amended

petitions."

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Wilson, 911 So. 2d at 44-46. This Court reversed the circuit court's

summary dismissal and its denial of "some of Wilson's motions to amend

the petition" and remanded Wilson's case to the circuit court for that

court to "address the allegations contained in the second, fourth, and fifth

amended petitions." Wilson, 911 So. 2d at 46 (emphasis added).

In so doing, this Court instructed the circuit court that the State

"must be afforded the opportunity to answer the allegations in the

petition, as amended." Id. at 47. And because the State had attached an

affidavit to its answer and the circuit court had "indicated in its order

that it had relied on the State's answer when it summarily dismissed the

petition," this Court urged the circuit court to "give careful consideration

to holding an evidentiary hearing on the claims presenting factual

disputes so that both parties are afforded the right to present evidence

and to cross-examine any witnesses." Id. (emphasis added). This Court

also pointed out that it was particularly concerned with Wilson's

allegation that his trial counsel had "failed to conduct any investigation

into potential mitigation evidence and that his decisions regarding trial

strategy in both the guilt and penalty phases were based on his

inadequate investigation." Id. Finally, this Court recognized that,

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although it found on direct appeal that "the evidence of Wilson's guilt was

overwhelming," that finding

"does not preclude Wilson from presenting and receiving

review of his postconviction claims in accordance with the

mandates of Rule 32. At a minimum, Wilson is entitled to a

thorough review of all of his properly pleaded claims, and he

is entitled to an opportunity to prove the allegations of those

claims that are not due to be summarily dismissed."

Id. After the judgment was reversed and the case was remanded to the

circuit court in 2005, Wilson's case languished in that court for more than

16 years.

On July 15, 2005, the State answered Wilson's second, fourth, and

fifth amendments to his Rule 32 petition. (C. 31-76.) And, on August 26,

2005, Wilson filed a "Motion for Leave to File a Sixth Amendment to his

Rule 32." (C. 78-202.) In response, the State moved the circuit court to

deny Wilson's motion to amend his Rule 32 petition for a sixth time. 3 (C.

245-51.)

Almost eight years later, on June 25, 2013, a new assistant attorney

general entered a notice of appearance in the circuit court in Wilson's

3The circuit court denied Wilson's motion to amend his petition for

a sixth time on June 29, 2015. (C. 281.) Wilson makes no argument on

appeal that the circuit court erred when it denied his motion to amend

his petition for a sixth time.

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case (C. 277), and on July 1, 2013, the presiding circuit judge entered the

following order:

"This cause came before the Court on a letter from

Assistant Attorney General Jon B. Hayden dated June 25,

2013 respectfully requesting inquiry regarding post-

conviction proceedings in the [Wilson] cause. This Court has

learned that a Certificate of Judgment from the Alabama

Court of Criminal Appeals dated May 18, 2005, reversing and

remanding a ruling of the trial court, was never entertained

by the assigned Judge who has now retired. As such, it is

hereby ORDERED, ADJUDGED and DECREED that this

matter be reassigned to the Honorable Donna S. Pate, Circuit

Judge, for immediate review and proceedings consistent with

the 2005 Order of the Alabama Court of Criminal Appeals."

(C. 279.)

Almost two years after the entry of the order from the presiding

circuit judge, on June 29, 2015, the appointed circuit judge issued an

order (1) denying Wilson's motion to amend his petition a sixth time, (2)

giving the State an opportunity to "supplement its previously filed

responses to defendant's second, fourth, and fifth amendments, if it so

chooses," and (3) giving Wilson an opportunity to respond to any

supplemental response the State files. (C. 281.)

Thereafter, on August 31, 2015, the State filed its "Amended

Answer and Motion to Dismiss Wilson's Second, Fourth, and Fifth

Amendments to his Rule 32 Petition." (C. 282-322.)

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On February 10, 2016, the State filed a "Request for a Ruling" on

its amended answer and motion to dismiss, noting that Wilson's deadline

for filing a response to the State's motion had "long passed." (C. 342-44.)

The circuit court took no action on the State's request. Then, over two

years later, on September 20, 2018, the State filed a second request for a

ruling on its motion to dismiss. (C. 365-68.) Again, the circuit court took

no action.

On August 19, 2021, the State filed a third request for a ruling on

its motion to dismiss. (C. 372-77.) Then, on October 1, 2021, the circuit

court issued a 92-page order summarily dismissing Wilson's second,

fourth, and fifth amended petitions, finding that it had "carefully and

thoroughly reviewed all claims in Wilson's Second, Fourth, and Fifth

Amended Petitions and can discern no factual disputes requiring an

evidentiary hearing." (C. 379-470.) This appeal follows.

Standard of Review

It is well settled that a circuit court may summarily dismiss a Rule

32 petition pursuant to Rule 32.7(d), Ala. R. Crim. P.,

"[i]f 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

18

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petitioner to relief under this rule and that no purpose would

be served by any further proceedings …."

See also Hannon v. State, 861 So. 2d 426, 427 (Ala. Crim. App. 2003);

Cogman v. State, 852 So. 2d 191, 193 (Ala. Crim. App. 2002); Tatum v.

State, 607 So. 2d 383, 384 (Ala. Crim. App. 1992).

And it is equally well settled that, when reviewing a circuit court's

summary dismissal of a postconviction petition, " '[t]he standard this

Court uses … is whether the [circuit] court abused its discretion.' " Lee

v. State, 44 So. 3d 1145, 1149 (Ala. Crim. App. 2009) (quoting Hunt v.

State, 940 So. 2d 1041, 1049 (Ala. Crim. App. 2005)). If the circuit court

bases its decision on a " 'cold trial record,' " however, our standard of

review is de novo. Ex parte Hinton, 172 So. 3d 348, 353 (Ala. 2012).

"[W]hen reviewing a circuit court's rulings made in a postconviction

petition, we may affirm a ruling if it is correct for any reason." Bush v.

State, 92 So. 3d 121, 134 (Ala. Crim. App. 2009).

Here, the circuit court summarily dismissed some of Wilson's

claims because they were without merit or failed to state a claim for

relief. Some of Wilson's claims, however,

"were summarily dismissed based on defects in the pleadings

and application of the procedural bars in Rule 32.2, Ala. R.

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Crim. P. 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 petition 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 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). 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 under 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)."

20

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Washington v. State, 95 So. 3d 26, 38-39 (Ala. Crim. App. 2012). Finally,

we note that, in reviewing Wilson's appeal from the summary dismissal

of his Rule 32 petition, "the plain-error standard of review does not

apply." James v. State, 61 So. 3d 357, 362 (Ala. Crim. App. 2010) (citing

Ex parte Dobyne, 805 So. 2d 763 (Ala. 2001)). With these standards in

mind, we turn to Wilson's arguments.

Discussion

On appeal, Wilson argues that the circuit court erred when it

summarily dismissed both his guilt-phase and penalty-phase claims of

ineffective assistance of counsel. Wilson also argues that the circuit court

erred when it dismissed his claims that the State "violated its

constitutional obligations under Brady v. Maryland[, 373 U.S. 833

(1963)]" (Wilson's brief, p. 45); that the State made "repeated comments

on [his] silence after receiving Miranda[ v. Arizona, 384 U.S. 436 (1966),]

warnings and invoking" his rights (Wilson's brief, p. 47); and that there

was "[p]ervasive prosecutorial misconduct" during his trial (Wilson's

brief, p. 49). We address each argument in turn.

21

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I. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a

petitioner must show both that his counsel's performance was deficient

and that he was prejudiced by his counsel's deficient performance. See

Strickland v. Washington, 466 U.S. 668 (1984). The oft-repeated

standard courts use to review claims of ineffective assistance is as

follows:

" ' "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

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

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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, 104 S. Ct. 2052.

" ' "[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

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.

23

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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).

"....

"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 v. State, 182 So. 3d 573, 582-83 (Ala. Crim. App. 2014).

"To sufficiently plead an allegation of ineffective

assistance of counsel, a Rule 32 petitioner not only must

'identify the [specific] acts or omissions of counsel that are

alleged not to have been the result of reasonable professional

judgment,' Strickland v. Washington, 466 U.S. 668, 690, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), but also must plead

specific facts indicating that he or she was prejudiced by the

acts or omissions, i.e., facts indicating 'that there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.'

466 U.S. at 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674. A bare

allegation that prejudice occurred without specific facts

indicating how the petitioner was prejudiced is not sufficient."

Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006). See also Daniel

v. State, 86 So. 3d 405, 416 (Ala. Crim. App. 2011). Because "the claim

of ineffective assistance of counsel is a general allegation that often

consists of numerous specific subcategories," "[e]ach subcategory is an

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independent claim that must be sufficiently pleaded." Coral v. State, 900

So. 2d 1274, 1284 (Ala. Crim. App. 2004), overruled on other grounds, Ex

parte Jenkins, 972 So. 2d 159 (Ala. 2005). With these well-settled

principles in mind, we address Wilson's arguments concerning his

ineffective-assistance-of-counsel claims.

I.A. Guilt-Phase Claims

I.A.1

Wilson first argues that the circuit court erred when it summarily

dismissed his claim that his counsel were ineffective for "filing an

untimely and insufficiently supported motion for change of venue."

(Wilson's brief, p. 10.) Wilson's argument is without merit.

In his initial petition, Wilson alleged that his counsel were

ineffective because they filed a motion for a change of venue "less than

six weeks before the then-scheduled trial date of November 3, 1997."

(Supp. C. 34.) Wilson said that the "lateness" of the filing meant that the

trial court could not hold a hearing on the motion until October 23, 1997,

and that his counsel's delay caused "this meritorious motion to be

rejected in part because it was untimely." (Supp. C. 34.) According to

Wilson, "[b]ut for the untimely nature of this pleading, the motion would

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have been granted, for the evidence presented in support of the motion

was overwhelming." (Supp. C. 34.)

The circuit court dismissed Wilson's claim "for several reasons." (C.

420.)

"First, it is not pleaded with sufficient specificity. Wilson's

allegation that the motion would not have been granted if filed

earlier is merely a conclusion for which no factual basis is

pleaded. Further, he pleads no facts establishing a reasonable

probability that the outcome of his trial would have been

different had counsel filed the motion to transfer venue

sooner.

"Second, it is clear from the record that Judge Fay held

a hearing on the motion and denied it on the merits. Judge

Fay's October 24, 1997 order states:

" 'MOTION FOR CHANGE OF VENUE.

After a full hearing on this motion, and after the

Court having viewed a number of video tapes and

read exhibits introduced by the Defendant, the

Court finds that this motion is due to be denied at

this time based on the evidence submitted at the

hearing. The Court specifically notes that this

motion is denied on its merits, although the motion

was not timely presented as contemplated by Rule

10 of the Alabama Rules of Criminal Procedure.'

"(Citations omitted.)

"Thus, Wilson cannot establish prejudice under the

Strickland standard in regard to the timing of the motion.

Further, ... the trial court's denial of Wilson's motion for

change of venue was raised on appeal. The Court of Criminal

Appeals found that the trial court did not abuse its discretion

26

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in denying Wilson's motion for change of venue. Wilson v.

State, 777 So. 2d at 926. Wilson can therefore not establish

prejudice under Strickland."

(C. 420-21.) We agree with the circuit court's judgment.

As set out above, Wilson alleged that his counsel's motion for a

change of venue was "meritorious," but the trial court denied the motion

because it was untimely filed. As the circuit court pointed out in its order

dismissing this claim, however, the trial court denied Wilson's change-of-

venue motion because it lacked merit, not because it was untimely. Thus,

Wilson's claim that his counsel were ineffective for failing to file a motion

for a change of venue earlier is without merit, and the circuit court

properly dismissed his claim under Rule 32.7(d), Ala. R. Crim. P., because

there is "no material issue of fact or law" that exists that "would entitle

[Wilson] to relief" and because "no purpose would be served by any

further proceedings" on this claim.

Additionally, the circuit court correctly dismissed Wilson's claim

because he failed to sufficiently plead facts showing that he was

prejudiced by his counsel's allegedly "untimely" filing. Because the trial

court denied Wilson's motion on the merits, it is clear that even if

Wilson's counsel had filed the motion for a change of venue earlier, the

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result of the proceeding would have been the same. Indeed, as the circuit

court noted in its order, this Court affirmed the trial court's judgment

denying Wilson's motion for a change of venue on its merits, holding:

"After examining the media materials the appellant

presented to the trial court, we conclude that those materials

did not contain prejudicial information. Rather, most of the

reports were factual and relatively objective rather than

accusatory, inflammatory, or sensational. Further, the

appellant did not show that the media coverage inflamed or

saturated the community so that there was an emotional tide

against him. Therefore, he has not shown that the pretrial

publicity about his case was so inherently or presumptively

prejudicial as to constitute one of those 'extreme situations'

that warrant a presumption of prejudice caused by pretrial

publicity."

Wilson v. State, 777 So. 2d at 925. Although Wilson makes the bare

allegation that, if his counsel had "timely" filed the motion, then "the

motion would have been granted," Wilson does not plead any facts as to

how the trial court's merits analysis would have differed had his counsel

filed the motion earlier. Accordingly, the circuit court did not err when

it summarily dismissed this claim.

I.A.2

Wilson next argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were "ineffective for failing to

adequately challenge for cause veniremembers unqualified for stating

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they could not presume Mr. Wilson innocent, or otherwise indicated they

could not give him a fair trial." (Wilson's brief, p. 12.) Wilson's argument

is without merit.

In his initial petition, Wilson alleged that his counsel were

ineffective

"for failing to adequately challenge for cause against

unqualified veniremembers who said that they would not be

able to give Mr. Wilson the presumption of innocence, or

otherwise indicated they would be unable to give [him] a fair

trial. Counsel did not make any challenge for cause against a

veniremember who said that he would require Mr. Wilson to

prove his innocence. (R. 587-88.) Mr. Wilson failed to make

adequate objection or provide proper authority to support

challenges against other veniremembers, including

veniremembers with significant and unsurmountable bias

against Mr. Wilson or his counsel. See, Claim XV, infra, which

is incorporated herein by reference. As a result, Mr. Wilson

was forced to use peremptory challenges to remove these

biased veniremembers."

(Supp. C. 35-36.) In "Claim XV," which Wilson incorporated by reference

in his claim of ineffective assistance of counsel, Wilson alleged that "three

veniremembers plainly indicated that they were unfit to serve on [his]

jury[;] nonetheless [they] were not removed for cause." (Supp. C. 88.)

Wilson said that "Juror [B] believed that Mr. Wilson would have to prove

his innocence," that Juror "[M] informed the court that her daughter's

fiancé was murdered, and that [Wilson's counsel] represented the

29

CR-21-0109

accused murderer," and that Juror "[G] indicated that she knew the

family of one of the victims, had been to the store that they operated, and

that she attended the same church as the family." (Supp. C. 88-89.)

The circuit court summarily dismissed this claim as follows:

"Wilson questions counsel's failure to challenge juror [B] for

cause. The record is clear, however -- as confirmed by the

Court of Criminal Appeals -- that juror [B] was struck for

cause. Wilson, 777 So. 2d at 915 ( ... 'it appears from the strike

list included in the record that the trial court did indeed

excuse venire member J.B. for cause')

"Wilson also cites counsel's failure to successfully

challenge jurors [M] and [G]. The Court of Criminal Appeals

reviewed the issue whether those jurors should have been

excused for cause, finding no error (or, in the case of [M], no

plain error). Wilson, 777 So. 2d at 915. Wilson's petition

pleads no facts showing how he was prejudiced by counsel's

failure to challenge these jurors, and pleads no facts showing

a reasonable probability that the result of his trial would have

been different if a challenge had been made. Because this

claim is insufficiently pleaded, it is dismissed pursuant to

Rule 32.6(b), Ala. R. Crim. P.

"To the extent that [his petition] challenges counsel's

actions with regard to other jurors, such claim lacks

specificity. Wilson does not identify which other jurors should

have been challenged for cause, and does not identify the

answers or statements upon which he bases his claim that a

challenge for cause should have been made."

(C. 425.) We agree with the circuit court's judgment.

30

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To start, the circuit court correctly dismissed Wilson's claim that

his counsel was ineffective for not having Juror B struck for cause

because the record on direct appeal (and this Court's opinion affirming

Wilson's conviction and sentence) shows that the trial court removed

Juror B for cause based on his responses during voir dire. See Wilson,

777 So. 2d at 913-15. Consequently, Wilson cannot show that he was

prejudiced by his counsel's alleged failure to move to have Juror B struck

for cause. Indeed, common sense dictates that counsel cannot be

ineffective for failing to do what was actually done. Thus, the circuit

court properly dismissed Wilson's claim.

The circuit court also correctly dismissed Wilson's claim that his

counsel was ineffective for failing to challenge Juror M for cause when

Juror "[M] informed the court that her daughter's fiancé was murdered,

and that [Wilson's counsel] represented the accused murderer." (Supp C.

88.) Wilson's claim, as pleaded, fails to show that the prospective juror

should have been struck for cause; thus, it fails to show that his counsel's

performance was deficient or that he was prejudiced by his counsel's

alleged deficient performance.

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In Wilson's direct appeal, this Court explained the standard used

to determine whether a juror may be removed for cause as follows:

" 'Section 12-16-150, Code of Alabama 1975,

provides that, when a juror "has a fixed opinion as

to the guilt or innocence of the defendant which

would bias his verdict," a challenge for cause is

proper. Nobis v. State, 401 So. 2d 191 (Ala. Crim.

App.), cert. denied, 401 So. 2d 204 (Ala. 1981). The

juror must have more than a bias, or fixed opinion,

as to the guilt or innocence of the accused. The

juror's opinion must be fixed to the point that it

would bias the verdict which the juror would be

required to render. Johnson v. State, 356 So. 2d

769 (Ala. Cr. App. 1978); McCorvey v. State, 339

So. 2d 1053 (Ala. Cr. App.), cert. denied, 339 So. 2d

1058 (Ala. 1976); Tidmore v. City of Birmingham,

356 So. 2d 231 (Ala. Crim. App. 1977), cert. denied,

356 So. 2d 234 (Ala. 1978).'

"Thomas v. State, 539 So. 2d 375, 380 (Ala. Cr. App.), aff'd,

539 So. 2d 399 (Ala. 1988), cert. denied, 491 U.S. 910, 109 S.

Ct. 3201, 105 L. Ed. 2d 709 (1989). Also,

" ' "[u]ltimately, the test to be applied is

whether the juror can set aside [his]

opinions and try the case fairly and

impartially, according to the law and

the evidence. This determination

again is to be based on the juror's

answers and demeanor and is within

the discretion of the trial judge. Thus,

a prospective juror should not be

disqualified for prejudices or biases if it

appears from his or her answers and

demeanor that the influence of those

prejudices and biases can be eliminated

32

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and a verdict rendered according to the

evidence." '

"Marshall v. State, 598 So. 2d 14, 16 (Ala. Cr. App. 1991)

(citations omitted) (quoting Knop v. McCain, 561 So. 2d 229,

232 (Ala.1989))."

Wilson, 777 So. 2d at 912-13.

In his direct appeal, Wilson argued (just as he does in his Rule 32

petition) that Juror M should have been struck for cause because Juror

M's "daughter's fiancé was murdered and defense counsel represented

the person accused of committing the murder." Id. at 915. This Court,

reviewing Wilson's claim for plain error, see Rule 45A, Ala. R. App. P.,

rejected Wilson's argument, holding:

"During voir dire examination, [Juror M] stated that she did

not have any animosity toward defense counsel, that defense

counsel's participation in the previous case would not affect

her decision in this case, that she would not hold the State to

a higher burden of proof than is required by law, and that she

would not expect the defendant to take the stand or otherwise

present any defense. (R. 494-95.) From these answers, the

trial court could have reasonably concluded that [Juror M]

was not biased against the appellant. Therefore, we do not

find any plain error in this regard."

Wilson, 777 So. 2d at 915.

In other words, this Court held that the substantive claim

underlying Wilson's ineffective-assistance-of-counsel claim did not rise to

33

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the level of plain error. Although it is true that this Court's finding of no

plain error on direct appeal does not preclude "a determination of the

existence of the prejudice required under Strickland to sustain a claim of

ineffective assistance of counsel," Ex parte Taylor, 10 So. 3d 1075, 1078

(Ala. 2005), "situations where no plain error rises to the level of error

under Strickland [are] 'rare.' " White v. State, 343 So. 3d 1150, 1185 (Ala.

Crim. App. 2019). This is not one of those rare situations where no plain

error rises to the level of prejudice under Strickland. What is more,

Wilson pleaded no facts in his petition or in any of his amendments

thereto showing what additional arguments his counsel could have raised

or what other additional authorities his trial counsel could have

presented to show that Juror M harbored the type of prejudice or bias

that is required to sustain a strike for cause. Thus, the circuit court did

not err when it dismissed this claim.

Additionally, the circuit court properly dismissed Wilson's claim

that his counsel were ineffective for failing "to make adequate objection

or provide proper authority to support" striking for cause Juror G when

that juror "indicated that she knew the family of one of the victims, had

been to the store that they operated, and that she attended the same

34

CR-21-0109

church as the family." (Supp. C. 88-89.) Indeed, on direct appeal this

Court rejected the substantive argument underlying Wilson's claim of

ineffective assistance of counsel, holding:

"[Wilson] contends that the trial court should have excused

[Juror G] for cause because she knew the Hemphill family,

had been to the store the family operated, and attended the

church the family attended. During voir dire examination,

[Juror G] indicated that, even though she had been to the

family's store and to the church members of the family

attended, she did not know the family well. Rather, she

simply recognized them when she saw them. (R. 471.) Also,

she stated that she would not be biased against the appellant

because of any knowledge she might have about the Hemphill

family. (R. 471.) In refusing to excuse [Juror G] for cause, the

trial court specifically stated that it remembered [Juror G]

stating that she could be fair and that she knew the Hemphill

family only vaguely. (R. 537.) Knowledge of the victim's

family, alone, does not justify a challenge for cause. See

McKinney v. State, 654 So. 2d 95 (Ala. Cr. App. 1995).

Therefore, the trial court did not err in refusing to excuse

[Juror G] for cause."

Wilson, 777 So. 2d at 915. Because the substantive claim underlying

Wilson's claim of ineffective assistance of counsel is without merit, his

allegation that his counsel were ineffective fails. See Carruth v. State,

165 So. 3d 627, 645 (Ala. Crim. App. 2014) (recognizing that counsel is

"not ineffective for failing to raise a baseless objection").

Finally, as the circuit court correctly concluded, to the extent that

Wilson's claim of ineffective assistance of counsel refers to other jurors,

35

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that claim is insufficiently pleaded because Wilson failed to identify by

name any juror his counsel should have moved to strike for cause. See

Stallworth v. State, 171 So. 3d 53, 84-85 (Ala. Crim. App. 2013) (holding

that Stallworth failed to sufficiently plead his claim that his counsel was

ineffective for failing to strike for cause certain jurors when Stallworth

failed to identify by name the jurors who should have been challenged for

cause).

Accordingly, Wilson is due no relief on this claim.

I.A.3

Next, Wilson argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were ineffective "for failing to

object to gender discrimination during jury selection" in violation of

J.E.B. v. Alabama, 511 U.S. 127 (1994). (Wilson's brief, p. 13.)

In his initial petition, Wilson alleged that his counsel was

ineffective because

"[t]he District Attorney in this case used twelve of his sixteen

peremptory strikes, or 75%, to remove women from the venire.

Counsel's failure to object to the State's gender discrimination

meant that the State never had to give reasons for its facially

discriminatory strikes. Had Mr. Wilson's counsel properly

objected, the State would have been forced to attempt to

justify its strikes, something it could not have done. This

36

CR-21-0109

failure of Mr. Wilson's counsel denied Mr. Wilson his right to

equal protection of the laws and an impartial jury."

(Supp. C. 36.) Wilson also raised a substantive J.E.B. claim in his

petition, in which he again alleged that the State "used its peremptory

strikes to remove twelve women from Mr. Wilson's jury, leaving only

three women on the jury." (Supp. C. 70.) According to Wilson, the

number of peremptory strikes the State used to remove women from the

venire "establishes a prima facie case of impermissible gender

discrimination." (Supp. C. 71.)

The circuit court, in its judgment summarily dismissing Wilson's

petition, addressed Wilson's substantive J.E.B. claim and his claim of

ineffective assistance of counsel based on his counsels' failure to raise a

J.E.B. claim together, finding as follows:

"Wilson claims that the State unconstitutionally used 12

of its 16 peremptory strikes to remove women from the venire.

This claim was reviewed for plain error on appeal. The Court

of [Criminal] Appeals quoted from the decision of the Alabama

Supreme Court in Ex parte Trawick, 698 So. 2d 162, 168 (Ala.

1997): 'Without more, we do not find that the number of

strikes this prosecutor used to remove women from the venire

is sufficient to establish a prima facie case of gender

discrimination.' After thoroughly reviewing the record on

appeal, the Court concluded that it did not raise any inference

that the State engaged in purposeful discrimination against

women in its use of peremptory challenges. The Court found

no plain error on this issue. Wilson, 777 So. 2d at 889.

37

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"Because this issue was raised on appeal, further review

is precluded by Rule 32.2(4), Ala. R. Crim. P. This claim is

dismissed.

"Counsel's failure to object to the State's use of its

peremptory strikes described above forms the basis of

Wilson's [ineffective-assistance-of-counsel] claim .... Wilson

failed to plead facts showing how he was prejudiced by

counsel's failure to object, and failed to plead facts

establishing a reasonable probability that the result would

have been different had counsel objected. Because this claim

is not sufficiently pleaded, it is dismissed pursuant to Rule

32.6(b), Ala. R. Crim. P."

(C. 405-06.) We agree with the circuit court's judgment.

As the circuit court correctly noted, in his direct appeal Wilson

argued (just as he does in his Rule 32 petition) that "the prosecution's use

of 12 of its 16 peremptory challenges to remove women from the venire

establishes a prima facie showing of gender-based discrimination."

Wilson, 777 So. 2d at 888. This Court, reviewing Wilson's argument for

plain error, found as follows:

" 'Alabama courts have recently held that

even a showing that [a] party had struck a high

percentage of strikes used against a minority was

not alone enough. In Ex parte Trawick, 698 So. 2d

162, 168 (Ala. 1997), the Alabama Supreme Court

held, "Without more, we do not find that the

number of strikes this prosecutor used to remove

women from the venire is sufficient to establish a

prima facie case of gender discrimination."

38

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" '....

" 'According to the record, the appellant in

this case relied solely upon the fact that seven of

the eight veniremembers struck by the prosecutor

were black. According to the Alabama Supreme

Court in Ex parte Trawick as well as the United

States Supreme Court's interpretation of the

burden in equal protection cases, these bare

statistics were not sufficient to make a prima facie

showing of discrimination.'

"Armstrong v. State, 710 So. 2d 531, 533-35 (Ala. Cr. App.

1997).

"After thoroughly reviewing the record on appeal, we

conclude that it does not raise any inference that the

prosecution engaged in purposeful discrimination against

women in its use of its peremptory challenges. Furthermore,

the appellant's arguments in his brief do not raise such an

inference. Accordingly, we do not find any plain error in this

regard."

Wilson, 777 So. 2d at 888-89.

In his Rule 32 petition, Wilson alleged that his counsel were

ineffective for failing to raise a J.E.B. claim based on only the number of

peremptory strikes the State used to remove women from the venire.

Again, although it is true that this Court's finding on direct appeal that

there was no plain error does not preclude "a determination of the

existence of the prejudice required under Strickland to sustain a claim of

39

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ineffective assistance of counsel," Ex parte Taylor, 10 So. 3d at 1078,

"situations where no plain error rises to the level of error under

Strickland [are] 'rare.' " White, 343 So. 3d at 1185. This is not one of

those rare situations where a finding of no plain error rises to the level of

prejudice under Strickland. Because Wilson's claim of ineffective

assistance of counsel rests on numbers alone, his allegation does not set

forth any facts that would entitle him to any relief on his claim. See

Largin v. State, 233 So. 3d 374, 403 (Ala. Crim. App. 2015) ("The State's

use of 22 of 29 strikes against female veniremembers does not raise an

inference of discrimination."). Thus, Wilson's claim does not entitle him

to any relief, and the circuit court did not err when it summarily

dismissed his claim.

Accordingly, Wilson is due no relief on this claim.

I.A.4

Wilson argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were ineffective for "failing to

effectively advocate for youthful offender status or adequately object to

failing to grant [him] youthful offender status." (Wilson's brief, p. 14.)

Wilson's argument is without merit.

40

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In his initial petition, Wilson alleged as follows:

"Counsel was ineffective for failing to effectively

advocate in support of Mr. Wilson's application for youthful

offender status or to adequately object to the trial court's

failure to grant youthful offender status. Counsel was

ineffective for failing to investigate, argue, or provide proper

authority to the trial court during or after the extremely short

youthful offender hearing (R. 2-3), which is fully described in

Claim XIV, infra, and incorporated herein by reference.

Counsel's failure to advocate or make an adequate objection

resulted in Mr. Wilson's conviction and death sentence."

(Supp. C. 39.) In Claim XIV, which Wilson incorporated by reference into

his claim of ineffective assistance of counsel, Wilson alleged that the trial

court erred when it failed to grant him youthful-offender status because,

he said, if "the trial court properly considered Wilson's age, lack of prior

criminal history, employment record, it would have likely granted [his]

application for youthful offender status." (Supp. C. 87.)

The circuit court summarily dismissed Wilson's claim as follows:

"Counsel's failure to effectively advocate in support of

the youthful offender application, or object to its denial, forms

the basis for Wilson's [ineffective-assistance-of-counsel] claim

in Claim I, Paragraph 25. He also claims that his counsel was

ineffective for failing to investigate, argue or provide proper

authority to the trial court during or after the hearing. He

then asserts that counsel's failures resulted in Wilson's

conviction and death sentence.

"Wilson's argument in his regard is nothing more than

blaming trial counsel for failing to succeed. 'A defendant

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attorney ... is not ineffective solely because his client is

sentenced to death.' Fleming v. Kemp, 748 F.2d 1435 (11th

[Cir.] 1984). This claim is dismissed, first, because it is

inefficiently pleaded. Wilson cites no facts establishing what

else counsel should have done to advocate for youthful

offender status. He pleaded no facts showing how he was

prejudiced by counsel's omission, or facts establishing a

reasonable probability that the result would have been

different if counsel had said something else. Further,

counsel's 'failure to object' in no way barred appellate review

of the trial court's decision. Indeed, the issue was thoroughly

reviewed by the Court of Criminal Appeals, who concluded:

" 'Clearly, the trial court considered the

circumstances and nature of the case, as well as

the Charge itself, in denying the application.

Accordingly, it did not abuse its discretion in

denying the appellant's request to be treated as a

youthful offender.'

"Wilson, 777 So. 2d at 923. Because it is insufficiently

pleaded, Wilson's Claim I, Paragraph 25 is dismissed. Rule

32.6(b), Ala. R. Crim. P."

(C. 410-11.) We agree with the circuit court's judgment.

Indeed, although Wilson alleged in his petition that his counsel

were ineffective for failing "to investigate, argue, or provide proper

authority to the trial court during or after the extremely short youthful

offender hearing" (Supp. C. 39), Wilson did not set out with any specificity

precisely what other arguments or authorities his counsel should have

presented to the trial court. Nor did Wilson set out any facts showing

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CR-21-0109

what his counsel could have learned if they had conducted any further

investigation that could have affected the outcome of his youthful-

offender hearing. Thus, Wilson's claim was insufficiently pleaded, and

the circuit court did not err when it dismissed this claim.

Accordingly, Wilson is due no relief on this claim.

I.A.5

Wilson next argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were ineffective for "failing to

move to suppress/preclude [his] custodial statements after invocation of

his right to remain silent in violation of [his] Fifth, Sixth, Eighth, and

Fourteenth Amendment rights, and his multiple invocations of his right

to remain silent." (Wilson's brief, p. 15.) Wilson also makes the related

argument that the circuit court erred when it summarily dismissed his

claim that trial counsel were ineffective for not objecting to the State's

comments regarding his alleged invocation of his right to silence. Both

of Wilson's claims were properly summarily dismissed because they were

insufficiently pleaded and without merit.

In his initial petition, Wilson alleged that his counsel were

ineffective for "not asking the court to suppress in-custody statements

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made by the defendant after invocation of his right to remain silent."

(Supp. C. 40.) To support his claim that his counsel should have moved

to suppress his in-custody statements, Wilson alleged:

"Although the authorities testified that Mr. Wilson initially

signed a waiver of rights form, Mr. Wilson told authorities --

including police investigators Charles Franklin and Dwight

Edger -- that he did not want to answer questions about the

crime. (R. 912, 919.) In fact, part of the evidence which the

state sought to introduce at trial was an audiotape containing

the defendant's voice, telling his interrogators 'a minimum of

five times that he wasn't talking to them, was through talking

to them.' (R. 1367.) After questioning did not cease, however,

Mr. Wilson eventually submitted to respond to questions from

investigator Kevin Turner at approximately 6:30 AM and

made several inculpatory statements which were admitted

against him at trial. (R. 920-22.) In these statements, Mr.

Wilson purportedly said that he was present at the crime

scene, that he participated in striking a victim, that he was

involved in the shooting, and referred to the co-defendants as

his 'crew.' Turner also gave testimony concerning Mr.

Wilson's demeanor during the questioning. (R. 922.) ... It was

ineffective of trial counsel to not seek to have this evidence

excluded."

(Supp. C. 40-41.) Wilson further alleged that his counsel were ineffective

"for failing to object to the State's comments on [his] exercise of his right

to remain silent during opening and closing statements." (Supp. C. 41.)

To support his claim, Wilson incorporated by reference facts from his

substantive claim that the State had improperly commented on his post-

Miranda silence. In that claim, Wilson alleged:

44

CR-21-0109

"From the very outset of the trial, through the

evidentiary phase, and then at closing argument, the State

impressed upon the jury that Mr. Wilson did not a) give a

statement to the police and b) did not testify at the guilt phase

of the trial. The first reference came during the State's

opening argument. (R. 631.) Once the evidentiary phase of

the trial began, the State deliberately elicited testimony about

Mr. Wilson's decision to not give a statement to the police,

from two separate police witnesses. (R. 912, 915-916.)

Describing and stressing Mr. Wilson's invocation of his Sixth

Amendment right to counsel was grossly improper and

prejudicial to Mr. Wilson."

(Supp. C. 71.)

The circuit court summarily dismissed Wilson's claim that counsel

were ineffective for failing to object to Wilson's post-Miranda silence (and

the substantive claims underlying that claim) as follows:

"Wilson alleges that prosecutors deliberately and

improperly elicited testimony from two separate police

witnesses about his decision not to give them a statement, and

improperly commented about his failure to testify during the

guilt phase of trial. This issue was raised on appeal. The

Court of Criminal Appeals noted that Wilson never invoked

his right to remain silent during questioning by law

enforcement officers, and in fact did make a statement to one

officer in which he admitted his involvement in the offense.

Further, the Court concluded that the prosecutor's comment

regarding 'what he testified to a year ago in jail' referred to a

comment Wilson made to a cellmate and the use of 'testified'

was a misstatement by the prosecutor. Wilson, 777 So. 2d at

890.

45

CR-21-0109

"Because this issue was raised on appeal, further review

is precluded, and this claim is dismissed. Rule 32.2(4), Ala.

R. Crim. P.

"Counsel's failure to object to the foregoing forms the

basis of Wilson's [ineffective-assistance-of-counsel] claim in

Claim I, Paragraph 29. Wilson cites no facts showing how he

was prejudiced by counsel's failure to object, and further cites

no facts showing a reasonable probability that the result of

the trial would have been different had counsel objected.

Because this claim is insufficiently pleaded, it is dismissed

pursuant to Rule 32.6(b), Ala. R. Crim. P."

(C. 406-07.)

In raising his argument on appeal that counsel were ineffective for

failing to object to the prosecutor's comments on his exercise of his right

to remain silent, Wilson challenges only the part of the circuit court's

judgment finding "that the underlying claim was belied by the record"

because, he says, "the record on its face is not dispositive." (Wilson's

brief, p. 17.) Wilson does not address the circuit court's finding that his

claim of ineffective assistance of counsel in relation to these alleged

prosecutorial comments was insufficiently pleaded. Thus, "[Wilson] has

failed to satisfy the requirements in Rule 28(a)(10)[, Ala. R. App. P.,] and

is deemed to have waived this claim." Woodward v. State, 276 So. 3d 713,

747 (Ala. Crim. App. 2018). Even so, the circuit court correctly concluded

46

CR-21-0109

that Wilson failed to sufficiently plead any facts showing how he was

prejudiced by his counsel's performance.

To support his claim regarding comments on the assertion of his

right to remain silent, Wilson pointed to testimony presented at his trial

concerning the statements that he made to law-enforcement officers

after, he said, he had invoked his right to remain silent. But, as the

circuit court noted, in Wilson's direct appeal this Court addressed

Wilson's argument about his "post-Miranda" silence, finding that

"[t]here is no indication in the record that the appellant ever

invoked his right to remain silent during questioning by law

enforcement officers. See Hardy v. State, 804 So. 2d 247 (Ala.

Cr. App. 1999). Rather, the testimony indicates that he

waived his right to remain silent and agreed to talk to the

officers. The comments and testimony about which the

appellant complains are not improper references to his post-

Miranda silence. Rather, they are references to his waiver of

his right to remain silent and the statements he made after

that waiver. Even though he was reluctant to answer the

questions some of the officers asked, he did not at any time

clearly invoke his right to remain silent. Furthermore, error,

if any, was harmless because the evidence against the

appellant was overwhelming and because he actually made a

statement to one officer in which he admitted his presence at

the crime scene and his involvement in the offense."

Wilson, 777 So. 2d at 890.

In his petition Wilson cited portions of the record in his direct

appeal detailing his statements to law-enforcement officers, but Wilson

47

CR-21-0109

alleged no facts that rebut this Court's finding on direct appeal that he

never invoked his right to remain silent. Because he failed to plead such

facts, Wilson has not alleged sufficient facts to show that his counsel's

performance was deficient or that his counsel's performance prejudiced

him.

The circuit court also correctly found that Wilson's related claim --

that "trial counsel was ineffective for not moving to suppress statements

he made" -- is "belied by the record" and "lacks merit." (C. 429, 433.) This

finding is supported by the record, which the circuit court quoted in detail

in its order dismissing Wilson's petition. Moreover, in addition to lacking

merit, this claim was also insufficiently pleaded. Wilson failed to plead

which witnesses he would have called to support his claim and how those

witnesses would have testified. Thus, Wilson failed to satisfy his burden

of pleading his claim of ineffective assistance of counsel, and the circuit

court did not err when it dismissed this claim. Accordingly, Wilson is due

no relief on this claim under either argument.

I.A.6

48

CR-21-0109

Wilson argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were ineffective for "failing to

adequately object to errors in the jury instructions." (Wilson's brief, p.

17.) The totality of Wilson's argument on appeal is as follows:

"Trial counsel was ineffective for failing to adequately

object to errors in the jury instructions which prejudiced Mr.

Wilson because it authorized the jury to convict him without

unanimity and without finding the requisite intent. This

deficient performance included failing to provide proper

authority in objecting and failing to propose instructions to

that accurately set forth the law. This deficient performance

resulted in Mr. Wilson's conviction and death sentence.

"This claim was dismissed under Rule 32.2(4) as raised

on direct appeal. Rule 32.2(4); (PCR. 404.) However, the court

erroneously conducted no analysis of ineffectiveness under

Strickland v. Washington."

(Wilson's brief, pp. 17-18.) Because Wilson's argument does not provide

this Court with any argument or authorities explaining how the circuit

court's judgment summarily dismissing this claim is incorrect, his

argument does not satisfy Rule 28(a)(10), Ala. R. App. P. Thus, his

argument is waived. See Travis v. State, 407 So. 3d 325, 340 (Ala. Crim.

App. 2023). Even so, Wilson's argument is without merit.

In his initial petition, Wilson alleged that his trial counsel were

ineffective when they failed "to adequately object to errors in the trial

49

CR-21-0109

court's jury instructions which authorized the jury to convict Mr. Wilson

without unanimity and without finding the proper level of intent." (Supp.

C. 47.) Wilson further alleged that his counsel failed "to provide proper

authority to the trial court in opposition to these errors" and failed to

"propos[e] instructions to the trial court which would comport with the

law." (Supp. C. 47.) Wilson claimed that his counsel's errors "resulted in

[his] conviction and death sentence." (Supp. C. 47.) Wilson also raised a

substantive claim concerning the trial court's jury instructions, which he

incorporated by reference in his claim of ineffective assistance of counsel.

In raising his substantive claim, Wilson alleged that, to convict him

of the charged capital offense, the State "had to prove that Mr. Wilson

intentionally killed at least two of the [four] victims." (Supp. C. 67.)

Wilson claimed that the evidence presented at his trial showed that

Acklin was responsible for the deaths and, thus, that "the question as to

which deaths [he] was responsible for was critical." (Supp. C. 67.)

According to Wilson, the trial court erred because "it failed to instruct the

jury that they had to unanimously find beyond a reasonable doubt that

[he] intentionally killed the same two victims." (Supp. C. 67.) Wilson

claimed that, because of this error, "some jurors could have concluded

50

CR-21-0109

that [he] killed two particular victims while other jurors could have

concluded that [he] killed a different two victims." (Supp. C. 67.) Wilson

also alleged that the trial court erred when it instructed the jury on the

lesser-included offense of intentional murder because, he argues, "the

jury should have had the option of finding that [he] had committed four

intentional murders to accommodate the conclusion that the killings did

not occur in a single scheme or course of conduct." (Supp. C. 68.)

The circuit court summarily dismissed Wilson's claim of ineffective

assistance of counsel and his substantive claim as follows:

"Each of the foregoing claims, and other claimed errors

in the trial court's charge, were raised on appeal. The Court

of Criminal Appeals concluded that '[Wilson's] contention that

the trial court's jury instructions deprived him of a fair trial

and an accurate sentence determination is without merit.'

Wilson, 777 So. 2d at 887.

"Because this issue was raised on appeal, further review

is precluded by Rule 32.2(4). This claim is dismissed.

"Wilson's [ineffective-assistance-of-counsel] claim ... is

based on counsel's failure to object to the jury charges outlined

above. He cites no facts to establish how he was prejudiced

by counsel's failure to object, nor does he cite facts

establishing a reasonable probability that the result of his

trial would have been different had counsel objected. Because

this claim is insufficiently pleaded, it is dismissed pursuant

to Rule 32.6(b), Ala. R. Crim. P."

(C. 404.)

51

CR-21-0109

As the circuit court noted, in Wilson's direct appeal, Wilson raised

several arguments concerning the trial court's jury instructions. As to

Wilson's argument that the trial court failed to "instruct the jury that it

had to unanimously find that he committed the capital offense" and "had

to find that he intentionally killed two of the decedents," this Court

explained:

"The trial court's instruction on the capital offense was

almost identical to the pattern jury instruction on the capital

murder of two or more people pursuant to a single scheme or

course of conduct. 'A trial court's following of an accepted

pattern jury instruction weighs heavily against any finding of

plain error.' Price v. State, 725 So. 2d 1003, 1058 (Ala. Cr.

App. 1997), aff'd, 725 So. 2d 1063 (Ala. 1998), cert. denied, 526

U.S. 1133, 119 S. Ct. 1809, 143 L. Ed. 2d 1012 (1999). Also,

the trial court thoroughly instructed the jury on principles of

complicity or accomplice liability. Finally, from the verdict

forms, it is clear that the jurors unanimously agreed that the

appellant was responsible for the murders of all four of the

decedents. Accordingly, we do not find any plain error in this

instance."

Wilson, 777 So. 2d at 885 (emphasis added). As to his argument that the

trial court failed to "properly instruct the jury that he had to have the

specific intent to kill at least two of the decedents to be found guilty of

the capital offense" and that it "did not instruct the jury on the

particularized intent necessary to support a capital murder conviction,"

this Court explained:

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CR-21-0109

"The record refutes these arguments. During its oral charge,

the trial court specifically instructed the jury on intent with

regard to each decedent and explained that that intent must

be a particularized intent to kill. When read in conjunction

with the trial court's instructions on complicity or accomplice

liability, the trial court sufficiently instructed the jury on

intent. Therefore, the appellant's argument is without merit."

Wilson, 777 So. 2d at 885. As to his argument that the trial court did not

properly instruct the jury "on intentional murder because it stated that

intentional murder 'is the death of one individual' " and, thus, it

"prevented the jury from finding that he intentionally killed more than

one of the decedents but that the killings did not occur as part of one

scheme or course of conduct," this Court explained:

"In instructing the jury on intentional murder, the trial

court substantially followed the pattern jury instruction on

intentional murder. As stated above, the trial court also

substantially followed the pattern jury instruction for the

capital murder of two or more people pursuant to a single

scheme or course of conduct. These facts weigh heavily

against a finding of plain error. See Price, [725 So. 2d at

1058]. Moreover, the phrase 'single scheme or course of

conduct' was not so technical that the jurors could not use

their common sense to interpret and understand it. As we

stated in Roberts v. State, 735 So. 2d 1244, 1252 (Ala. Cr. App.

1997):

" 'The word "intent" is not a term of art or

legal jargon. It is a commonly used and

understood word with a clear meaning. Moreover,

as the United States Supreme Court has

recognized:

53

CR-21-0109

" ' "Jurors do not sit in solitary

isolation booths parsing instructions

for subtle shades of meaning in the

same way that lawyers might.

Differences among them in

interpretation of instructions may be

thrashed out in the deliberative

process, with common sense

understanding of the instructions in

the light of all that has taken place at

the trial likely to prevail over technical

hairsplitting."

" 'Boyde v. California, 494 U.S. 370, 380-81, 110 S.

Ct. 1190, 1198, 108 L. Ed. 2d 316 (1990).

" 'In this case, the jurors' common sense

understanding was sufficient; the court was not

required to define the term. No plain error

occurred. See Williams v. State, 710 So. 2d 1276

(Ala. Cr. App. 1996).'

"Finally, as stated in Part I of this opinion, under the

facts of this case, there was simply no rational basis for a

finding that the appellant intentionally murdered more than

one of the decedents, but that he was not guilty of the capital

offense. Therefore, the appellant's arguments are without

merit.

Wilson, 777 So. 2d at 886.

Although Wilson bootstrapped each of these substantive jury-

instruction arguments to claims in his Rule 32 petition that his counsel

were ineffective, Wilson failed to plead sufficient facts to show that he

54

CR-21-0109

was entitled to any relief on this claim. Indeed, as the circuit court

correctly found when it summarily dismissed this claim of ineffective

assistance of counsel, Wilson "cites no facts to establish how he was

prejudiced by his counsel's failure to object, nor does he cite facts

establishing a reasonable probability that the result of his trial would

have been different had counsel objected." (C. 404.) Thus, the circuit

court did not err when it summarily dismissed his claim.

Accordingly, Wilson is due no relief on this claim.

I.A.7

Wilson also argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were "ineffective for failing to

adequately object or provide authority opposing the admission of highly

prejudicial photographs that served only to inflame the passions of the

jury." (Wilson's brief, p. 18.)

In his initial petition, Wilson alleged that his counsel were

ineffective for failing to "adequately object or provide authority in

opposition to the trial court's admission of highly prejudicial photographs

which had no purpose but to inflame the passions of the jury." (Supp. C.

48.) Wilson also raised a substantive claim addressing the trial court's

55

CR-21-0109

admission of those photographs, which he incorporated by reference in

his claim of ineffective assistance of counsel. In his substantive claim,

Wilson alleged that he "sought to have prejudicial and inflammatory

photographs properly barred from his trial, and he repeatedly objected to

the State's use of gory autopsy and crime scene photographs." (Supp. C.

96.)

The circuit court summarily dismissed both claims, finding:

"Wilson claims that admission into evidence of gory

autopsy and crime scene photographs 'served little or no

purpose except to arouse the passion, prejudice, or sympathy

of the jury.'

"This issue was raised on appeal. The Court concluded

that each photograph admitted was relevant to show the

crime scene and injuries each victim suffered, and found no

error in their admission. Wilson, 777 So. 2d at 929.

"Because this issue was raised on appeal, it is precluded

from further review pursuant to Rule 32.2(4). This claim is

dismissed.

"Counsel's failure to object to admission of the

photographs described above forms the basis for Wilson's

[ineffective-assistance-of-counsel] claim .... Wilson pleads no

facts showing how he was prejudiced by counsel's failure to

object, and pleads no facts showing a reasonable probability

that the result of his trial would have been different had

counsel objected. Because this claim is insufficiently pleaded,

it is dismissed pursuant to Rule 32.6(b), Ala. R. Crim. P."

(C. 416.)

56

CR-21-0109

As the circuit court correctly noted in dismissing Wilson's

substantive claim, in Wilson's direct appeal this Court addressed his

argument that the "trial court erroneously admitted photographs that

served only to inflame the passions of the jury." Wilson, 777 So. 2d at

928. This Court rejected Wilson's argument, holding that, "[a]fter

reviewing the photographs that were admitted into evidence in this case,

we conclude that they were relevant to show the crime scene and the

injuries each victim suffered. Therefore, the trial court did not err in

admitting them into evidence." Wilson, 777 So. 2d at 929.

Because this Court in Wilson's direct appeal held that the

substantive claim underlying Wilson's assertion of ineffective assistance

of counsel is without merit, his allegation that his counsel were

ineffective for failing to object to the admission of the photographs fails.

See Carruth, supra. Thus, the circuit court did not err when it summarily

dismissed this claim.

Accordingly, Wilson is due no relief on this claim.

I.A.8

Wilson argues that the circuit court erred when it summarily

dismissed his claim that his counsel were ineffective "for failing to retain

57

CR-21-0109

any forensic experts to help investigate the evidence brought against

him, and to assist them in their representation." (Wilson's brief, p. 20.)

Wilson's argument is without merit.

In his initial petition, Wilson alleged that his trial counsel were

ineffective for failing to "obtain expert assistance" to "examine the State's

forensic evidence and review the planned testimony of State experts."

(Supp. C. 38.) According to Wilson, if his counsel had retained expert

assistance, they would have "uncovered numerous examples of

unprofessional, unreliable, and untrustworthy forensic investigation."

(Supp. C. 38.) In his petition, however, Wilson did not identify by name

any expert witness his counsel should have hired.

" 'When addressing a similar claim that

counsel was ineffective for failing to secure the

presence of an expert, this Court in Daniel v. State,

86 So. 3d 405 (Ala. Crim. App.2011), stated:

" ' "Daniel failed to identify, by

name, any forensic or DNA expert who

could have testified at Daniel's trial or

the content of the expert's expected

testimony. Accordingly, Daniel failed

to comply with the full-fact pleading

requirements of Rule 32.6, Ala. R.

Crim. P. See McNabb v. State, 991 So.

2d 313 (Ala. Crim. App. 2007) (claim

that counsel was ineffective for failing

to retain an expert not sufficiently

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CR-21-0109

pleaded because expert was not

identified); Woods v. State, 957 So. 2d

492 (Ala. Crim. App. 2004), rev'd on

other grounds, 957 So. 2d 533 (Ala.

2006) (claim of ineffective assistance of

counsel not sufficiently pleaded

because Woods failed to identify an

expert by name)."

" '86 So. 3d at 425-26. As we stated previously, to

sufficiently plead a claim that counsel was

ineffective in failing to secure the services of an

expert, the petitioner must identify the expert by

name and plead his/her expected testimony.'

"Woods v. State, 221 So. 3d 1125, 1138-39 (Ala. Crim. App.

2016)."

Brooks v. State, 340 So. 3d 410, 458 (Ala. Crim. App. 2020) (emphasis

added).

Because, as the circuit court correctly found in its order dismissing

this claim, "Wilson fail[ed] to identify what experts counsel should have

retained" (C. 427), the circuit court did not err when it dismissed this

claim as insufficiently pleaded.

Accordingly, Wilson is due no relief on this claim.

I.A.9

Wilson similarly argues that the circuit court erred when it

summarily dismissed his claim that his counsel were ineffective for

59

CR-21-0109

failing "to obtain[] the assistance of an independent mental health expert

to evaluate [him] for evidence relevant to theories of guilt." (Wilson's

brief, p. 23.) But Wilson did not identify by name any mental-health

expert whom his counsel should have hired to evaluate him. (See Supp.

C. 39.) Because, as the circuit court correctly found in its order

dismissing this claim that "Wilson [did] not identify who should have

been retained" (C. 428), the circuit court did not err when it dismissed

this claim as insufficiently pleaded. See Brooks, supra.

Accordingly, Wilson is due no relief on this claim.

I.A.10

Wilson also argues that the circuit court erred when it summarily

dismissed his claim that his counsel were ineffective "for failing to

meaningfully cross-examine witnesses." (Wilson's brief, p. 23.)

Specifically, Wilson argues that his counsel were ineffective in their

cross-examination of the State's expert witnesses, in their cross-

examination of Ashley Rutherford, and in their cross-examination of

witnesses who provided informant testimony. Wilson's arguments are

without merit.

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CR-21-0109

In his petition, Wilson alleged that his counsel were ineffective in

their cross-examination of the State's expert witnesses because, he says,

their

"failure to obtain expert assistance resulted in particularly

ineffective cross examination of the three expert witnesses

called by the state, Dr. Kenneth Warner, a Medical

Pathologist from the Alabama Department of Forensic

Science[s] (R. 1129), Morris G. Brown, Jr., a toolmarks expert

from the Department of Forensic Science[s] (R. 1201), and

Brent Wheeler, a trace evidence and firearms expert who is

the Director of the Department of Forensic Services in

Huntsville (R. 1282.) With the aid of expert assistance, cross

examination of these witnesses would have revealed the

substantial flaws and weaknesses of these witnesses'

testimony."

(Supp. C. 42-43.) Wilson further alleged that his counsel were

"egregiously ineffective during the cross examination of [Ashley]

Rutherford" because,

"through his own questions, defense counsel elicited

testimony of prior bad acts, including that Mr. Wilson had

previously sold drugs to Rutherford (R. 1057), and that, in

Rutherford's opinion, Mr. Wilson was responsible for

Rutherford's addiction to cocaine. (R. 1068.) This evidence

was irrelevant to any aspect of the trial and had an

extraordinary tendency to bias the minds of the jurors against

Mr. Wilson."

(Supp. C. 43.) Finally, Wilson alleged that his counsel "failed to

effectively cross examine witnesses who provided informant testimony to

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the state in exchange for consideration in their own criminal cases"

because his counsel

"did not adequately impeach those witnesses with their own

criminal histories or attack the biases of these witnesses.

Counsel also did not make effective use of impeachment

information it gained from third parties. (R. 63, 72, 83-84.)

Defense counsel's failure to engage in effective cross

examination of all the state's witnesses violated Mr. Wilson's

right to confront the witnesses against him and resulted in his

conviction and sentence of death."

(Supp. C. 43.)

The circuit court summarily dismissed Wilson's claim that his

counsel were ineffective in their cross-examination of the State's expert

witnesses as insufficiently pleaded and found as follows:

"The petition fails to specify what questions should have been

asked on cross-examination. The responses that those

questions would have elicited is also absent. The 'substantial

flaws and weaknesses of the witnesses' testimony' are not

specified. Wilson fails to plead facts showing how he was

prejudiced, and fails to plead facts showing a reasonable

probability that the result of his trial would have been

different had counsel cross-examined these witnesses

differently."

(C. 433-34.) We agree with the circuit court's judgment.

In Stanley v. State, 335 So. 3d 1, 21 (Ala. Crim. App. 2020), this

Court addressed a similar claim alleging that trial counsel was

ineffective for failing to adequately cross-examine a State's witness. The

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circuit court in Stanley, just as the circuit court did here, found that

Stanley's claim was insufficiently pleaded in part because Stanley failed

to plead facts showing what the answers to the unasked questions would

have been had his counsel asked those questions on cross-examination.

This Court agreed with the circuit court's judgment and affirmed its

conclusion that Stanley's claim was insufficiently pleaded.

Here, Wilson not only failed to allege what answers the State's

expert witnesses would have given had counsel cross-examined them

differently, Wilson also failed to allege what questions his counsel should

have asked to those expert witnesses. And to the extent that Wilson

alleged that his counsel were ineffective for failing to retain expert

assistance to aid in questioning the State's expert witnesses, Wilson did

not identify by name any expert his counsel should have hired. Thus, the

circuit court properly found that Wilson's claim was insufficiently

pleaded.

Next, the circuit court summarily dismissed Wilson's claim that his

counsel were "egregiously ineffective" in their cross-examination of

Rutherford as follows:

"The evidence at trial established that Ashley

Rutherford was shot in the head by Nick Acklin, not Joey

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Wilson. Rutherford nevertheless gave damaging testimony

against Wilson, repeatedly testifying that Wilson was the

'ringleader' that evening. Taking into consideration all of

Rutherford's testimony, this Court concludes that counsel

introduced the subject of drug use -- Rutherford's as well as

Wilson's -- to show Rutherford's bias against Wilson. When

asked by the prosecutor about his previous relationship with

Wilson, Rutherford testified as follows:

" ' Q. (Mr. Taylor) How long have you known

Joey Wilson?

" 'A. (Mr. Rutherford) About a year and a half.

" 'Q. (Mr. Taylor) And when you say a year and a

half are you referring to a year and a half before

this event?

" 'A. (Mr. Rutherford) Yes, sir.

" 'Q. (Mr. Taylor) Before September, before the

killings?

" 'A. (Mr. Rutherford) About a year and a half.

" 'Q. (Mr. Taylor) Describe to this jury what kind of

social, or professional if it was, contact that you

had with Joey Wilson. How was it that you came

to meet Joey Wilson?

" 'A. (Mr. Rutherford) Just social.

" 'Q. (Mr. Taylor) Would there be social gatherings

where you would come in contact with the

defendant, Joey Wilson?

" 'A. (Mr. Rutherford) Yes, sir.

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" 'Q. (Mr. Taylor) What is your best estimate, as far

as how often he would see Joey Wilson in that year

and a half leading up to the killings?

" 'A. (Mr. Rutherford) Almost every day.

" 'Q. (Mr. Taylor) All right. What was your

relationship with Joey -- I am talking about good

or bad -- for the most part?

" 'A. (Mr. Rutherford) I guess you would say in

between.

"(R. 989-990).

"Clearly, the direct examination of Rutherford

would lead one to believe that he and Wilson were

friends who saw each other 'almost every day' in

the year and a half before the shootings.

"The record further reveals that Wilson's trial

counsel performed a thorough and exhaustive

cross-examination of Rutherford, and one of his

main goals was to demonstrate that the picture

painted by Rutherford about his relationship with

Wilson was false. Toward that end, the following

exchanges occurred:

"A. (Mr. Rutherford) The last question you asked

me, you are talking about -- what time frame are

you talking about? I had not talked to Joey for

about six months.

"Q. (Mr. Gladden [(defense counsel)]): I am talking

about the year or year and a half that you knew

him.

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" 'A. (Mr. Rutherford): That I knew him. Okay.

From April and May I had no contact with him. I

had not gone to his house, I had not done nothing.

"(R. 1054) (emphasis added)

"....

" 'Q. (Mr. Gladden): Okay. About a week before the

25th they had come by, and as I am understanding

you, to buy some drugs from you?

" 'A. (Mr. Rutherford) Yes -- well, I didn't know why

they were coming over there. That's what they

ended up talking about.

" 'Q. (Mr. Gladden): And you had some there for

sale?

" 'A. (Mr. Rutherford) Not me, no sir.

" 'Q. (Mr. Gladden) Not you?

" 'A. (Mr. Rutherford) No, sir.

" 'Q. (Mr. Gladden) Your house?

" 'A. (Mr. Rutherford) Yes, sir.

" 'Q. (Mr. Gladden): Somebody else that sold out of

your house?

" 'A. (Mr. Rutherford) No, it wasn't -- I mean, they

weren't constantly selling out of my house. It

wasn't a constant thing, no sir. We just happened

to have an ounce -- well, we ended up having three-

fourths of an ounce at that time.

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" 'Q. (Mr. Gladden) Kept in your house?

" 'A. (Mr. Rutherford) No. He had just gotten it the

day before.

" 'Q. (Mr. Gladden) What about yourself?

" 'A. (Mr. Rutherford) I didn't have any.

" 'Q. (Mr. Gladden) I'm sorry. You have lost me

again, I thought you said you each had an ounce or

three-fourths of an ounce?

" 'A. (Mr. Rutherford) No, no. I said we had gotten

an ounce, and there was only three-quarter left.

" 'Q. (Mr. Gladden) Okay. I'm with you now. What

had you done with the remainder? Had it been

sold or used?

" 'A. (Mr. Rutherford) Smoked.

" 'Q. (Mr. Gladden) Smoked?

" 'A. (Mr. Rutherford) Yes.

" 'Q. (Mr. Gladden): Now, you also grew some

marijuana there at your house, did you not?

" 'A. (Mr. Rutherford) Yes, sir.

" 'Q. (Mr. Gladden) So would it be a correct and fair

statement to say that during the time that you

knew or had an acquaintance with Joey, you would

buy drugs from him, he would buy drugs from you?

" 'A. (Mr. Rutherford) He didn't buy any from me.

I bought it from him.

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"(R. 1055-57).

"....

" 'Q. (Mr. Gladden) Now, you had become about six

months prior to that I guess extremely upset with

Joey, hadn't you?

" 'A. (Mr. Rutherford) Yes, sir.

" 'Q. (Mr. Gladden) He had refused to deal with you

anymore because you had developed a bad cocaine

problem, hadn't you?

" 'A. (Mr. Rutherford) No sir. Well, I had developed

a cocaine habit, but it was introduced to me by

him.

" 'Q. (Mr. Gladden) But you had developed it and

he just didn't want to deal with you anymore isn’t

that the truth?

" 'A. (Mr. Rutherford): I don't know about not

wanting to deal with me.

" 'Q. (Mr. Gladden) Well, he quit dealing with you,

didn't he?

" 'A. (Mr. Rutherford): I quit dealing with him.

" 'Q. (Mr. Gladden): All right. And that's what

happened about six months prior to the 25th of

September?

" 'A. (Mr. Rutherford) Yes, sir.

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" 'Q. (Mr. Gladden) Now, is that the reason or one

of the reasons that everything that occurred the

week before and on September 25th that you

specifically said Joey Wilson and nobody else?

" 'A. (Mr. Rutherford) No, sir.

"(R. 1068-69).

"During his cross examination, counsel used the

foregoing to attack Rutherford's account of Wilson's

involvement. Regarding the stolen cell phone that

precipitated the murders, he got Rutherford to admit that he

named only Wilson in his report to law enforcement, even

though others were present, and he never saw Wilson take the

phone. (R. 1061) He got Rutherford to concede that when he

initially spoke with Officer Salmonsky, he named only Joey

Wilson as the perpetrator even though he knew 'without a

doubt' that Acklin, not Wilson, shot him in the head. (R. 1062).

When Rutherford said that he made that statement because

Wilson was the 'ringleader,' [Wilson's trial counsel] first got

him to admit that he learned that term from the District

Attorney's office and the Sheriffs Department, (R. 1063), then

obtained the following admission:

" 'Q. (Mr. Gladden): Mr. Rutherford, isn't it true

that Nick Acklin was the one that as the actual

shooting started was telling everybody what to do,

was telling somebody to go start the car, was

telling that there ain't going to be nobody to leave

here, right before he shot you in the head. Isn't

that the case?

" 'A. (Mr. Rutherford) And also --

" 'Q. (Mr. Gladden) Isn't that correct? Yes or no.

" 'A. (Mr. Rutherford) Yes, sir.'

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"(R. 1065).

"Based upon the foregoing, this Court finds that a

reasonable lawyer could have concluded that any potential

risk in mentioning Wilson's drug use was worth presenting to

the jury, especially since Rutherford admitted his drug use as

well, and especially in light of Wilson's defense strategy that

he only shot one person, preventing the crime from being

elevated to capital murder. In fact, given the facts Gladden

had to work with, one wonders whether Gladden's

performance would have been considered deficient had he not

introduced evidence of Rutherford's bias against Wilson.

Gladden's cross-examination could have given the jury reason

to believe that Rutherford was attempting to color his

testimony in an effort to obtain a capital murder conviction

against Wilson based on the fact that Wilson quit dealing

drugs to Rutherford or based on the fact that Wilson

introduced Rutherford to cocaine, to which he became

addicted. In fact, in his closing argument, Gladden argued:

" 'I think it's pretty obvious that Ashley Rutherford

hated Joey Wilson's guts from a long time back,

but they still spoke, they still interacted. Why

would Ashley Rutherford, knowing full well that

Nick Acklin just put a gun to his head and pulled

the trigger, and seeing nothing else that went on,

upon his first contact with law enforcement he

said, "Joey Wilson did it." Now does that not say

that somebody has started out to make sure that

no matter what the facts are, Joey Wilson is going

to suffer the consequences for it all? I think that's

as clear a statement of that as you can find, or that

you will ever be able to find. He sat right up here

and told you that's exactly what he did, knowing

full well that otherwise Nick Acklin shot him.'

"(R. 1574).

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" In any event, Wilson has failed to plead facts showing

how he was prejudiced by Gladden's cross-examination of

Rutherford, and has failed to plead facts showing a reasonable

probability that the result of his trial would have been

different if Gladden has cross-examined Rutherford

differently. Because this claim is insufficiently pleaded it is

dismissed pursuant to Rule 32.6(b) Ala. R. Crim. P., and

because it fails to state a claim upon which relief may be

granted pursuant to Rule 32.7(d), Ala. R. Crim. P."

(C. 434-39 (footnote omitted).) We agree with the circuit court's

judgment.

Indeed, this Court has held:

" ' "[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

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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).

Here, as the circuit court found, Wilson's trial counsel's cross-

examination of Rutherford was based on his decision to show

Rutherford's bias against Wilson even though the testimony involved

prior bad acts of both Rutherford and Wilson. Although Wilson's Rule 32

counsel disagrees with Wilson's trial counsel's strategy and would have

cross-examined Rutherford differently, Wilson's trial counsel was not

constitutionally ineffective in his cross-examination of Rutherford.

Additionally, as the circuit court correctly found, Wilson failed to plead

sufficient facts showing how he was prejudiced by his counsel's allegedly

deficient performance. At most, Wilson pleaded a conclusory allegation

of prejudice, which does not satisfy Wilson's burden of pleading a claim

of ineffective assistance of counsel. See Mashburn v. State, 148 So. 3d

1094, 1107 (Ala. Crim. App. 2013) (holding that a bare allegation of

prejudice is insufficient to satisfy the pleading requirement for a claim of

ineffective assistance of counsel). Thus, the circuit court properly

dismissed this claim.

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Finally, the circuit court summarily dismissed Wilson's claim that

his counsel were ineffective in their cross-examination of the State's

informant witnesses as follows:

"Wilson next argues that trial counsel was ineffective for

failing to effectively cross-examine witnesses who provided

informant testimony in exchange for consideration of their

own criminal cases. He argues that counsel did not

adequately impeach those witnesses with their own criminal

histories or attack the bias of those witnesses. Neither these

witnesses nor the criminal history and bias that could have

been used to impeach them is specified in the petition.

Wilson's citations to the record in support of this claim

mention only two individuals, Greg Tribble and Travis

Hatfield. Those individuals did not testify, so Gladden did not

have the opportunity to cross-examine them. This claim is

therefore dismissed for failure to state a claim upon which

relief can be granted. Rule 32.7(d), Ala. R. Crim. P."

(C. 440.) We agree with the circuit court's judgment.

Again, Wilson failed to plead sufficient facts to support his

allegation of ineffective assistance of counsel. As the circuit court pointed

out, although Wilson alleged that his counsel did not impeach those

unnamed witnesses with their criminal histories or attack their biases,

Wilson did not set out any facts showing what those biases or criminal

histories were. Nor did Wilson allege any facts establishing that he was

prejudiced by his counsel's alleged deficiencies. Furthermore, as the

circuit court also pointed out, the only named informant witnesses that

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could be deciphered from examining Wilson's citations to the record in

his petition were Greg Tribble and Travis Hatfield, neither of whom

testified at Wilson's trial; therefore, Wilson's trial counsel had no

opportunity to cross-examine or impeach those witnesses. Thus, Wilson's

claim was both insufficiently pleaded and without merit.

Accordingly, Wilson is due no relief on this claim.

I.A.11

Wilson next argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were ineffective when they

"failed to effectively advocate for a jury instruction on the lesser-included

offense of felony murder, because, when asked, trial counsel could not

provide a rational basis for the instruction." (Wilson's brief, p. 29.)

Wilson's argument is without merit.

In his direct appeal, Wilson argued that the "trial court erred in not

instructing the jury on the lesser included offense of felony murder."

Wilson, 777 So. 2d at 876. This Court recognized that Wilson's counsel

"requested that the trial court instruct the jury on felony murder" but

"did not object when the trial court refused to do so." We reviewed

Wilson's argument for plain error and determined "that an instruction on

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felony murder would not be appropriate." Id. This Court, after defining

felony murder, held as follows:

"[T]he offense of felony murder involves an intended felony

and an unintended homicide. See Williams v. State, 601 So.

2d 1062 (Ala. Cr. App. 1991), aff'd, 662 So. 2d 929 (Ala.), cert.

denied, 506 U.S. 957, 113 S. Ct. 417, 121 L. Ed. 2d 340 (1992).

Finally, with regard to instructions on lesser included

offenses, § 13A-1-9(b), Ala. Code 1975, provides: 'The court

shall not charge the jury with respect to an included offense

unless there is a rational basis for a verdict convicting the

defendant of the included offense.' (Emphasis added.)

"[Wilson] argues that, without an instruction on felony

murder, 'there was no way that the jury could reconcile

convicting [him] of one intentional murder, two attempted

murders, and still hold him accountable for the remaining

three homicides.' (Appellant's brief at p. 4.) Under his theory

that he shot only one victim, if he were not found to be an

accomplice, he would not be responsible for the attempted

murders of Rutherford or Hayden. Continuing under that

theory, there was no felony upon which to base a felony

murder conviction. Therefore, his argument is flawed.

Furthermore, although the appellant argues that he

intentionally killed only one person, the jury found that he

was responsible, as an accomplice, for killing the other three

decedents. The evidence in this case was overwhelming and

amply supported the jury's conclusion. Accordingly, under the

facts of this case, there was no rational basis for a verdict

convicting [Wilson] of felony murder, and the trial court's

refusal to give such an instruction did not rise to the level of

plain error."

Wilson, 777 So. 2d at 877.

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In his petition, Wilson bootstrapped the substantive claim he raised

in his direct appeal to a claim of ineffective assistance of counsel, alleging

that "a felony murder [instruction] was warranted under the

circumstances of the case." (Supp. C. 44.) According to Wilson, "the

State's own theory of the case" was that Wilson "was committing the

crimes of kidnapping in the first degree, burglary in the first degree, and

other felonies clearly dangerous to human life at the time that Nicholas

Acklin, another participant in the crime, caused the death of the first

victim." 4 (Supp. C. 44.) Wilson further alleged that the "State's theory"

of the case against him was that Wilson "and his co-defendants

imprisoned the victims for over an hour for the purpose of retaliating

against one of the victims for filing a criminal complaint against Mr.

Wilson for the theft of a cellular telephone" and that the "victims were

4In his brief on appeal, Wilson argues that "[t]he jury found [him]

guilty of committing felonies -- kidnapping and burglary -- based on the

state's contention he forcibly detained the victims in a dwelling to

terrorize them and interfere with their reporting of criminal activity."

(Wilson's brief, pp. 32-33.) As the State points out in its brief on appeal,

however, Wilson is incorrect because, "[w]hile [he] was initially charged

in count 2 of the indictment with murder during burglary, that charge

was dismissed by the State before the jury began its guilt-phase

deliberations" and "Wilson was never indicted for, much less found guilty

of, kidnapping." (State's brief, p. 46.)

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assaulted, threatened, and forced to promise that they would withdraw

the criminal complaint during the course of the incident," which, he said,

established first-degree kidnapping. Wilson also claimed that "[t]he facts

of this offense, under the State's theory, supported Burglary, and hence

a felony murder instruction." (Supp. C. 45.) Finally, Wilson alleged that

"other felonies 'clearly dangerous to human life' are implicated by the

State's theory of the case," including "attempted murder" and

"intimidating a witness." (Supp. C. 45.) Wilson said that "[t]hese

underlying felonies supported a felony murder instruction, for if the jury

concluded that [he] didn't have the requisite intent to kill, but did commit

the felonies, a felony murder instruction would have been the proper

verdict." (Supp. C. 46.)

The circuit court summarily dismissed Wilson's claim (along with

his substantive claim about the trial court's failure to instruct the jury

on the lesser-included offense of felony murder), as follows:

"This issue was addressed both at trial and on appeal.

As noted in the decision of the Court of Criminal Appeals

affirming defendant's conviction and sentence, trial counsel

requested that the court instruct the jury on the lesser offense

of felony murder, but did not object when the trial court

refused to do so. The appellate court nevertheless reviewed

the claim for plain error and concluded:

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" 'The evidence in this case was overwhelming and

amply supported the jury's conclusion.

Accordingly, under the facts of this case, there was

no rational basis for a verdict convicting the

appellant of felony murder, and the trial court's

refusal to give such an instruction did not rise to

the level of plain error.'

"Wilson, 777 So. 2d at 877.

"Because this issue was raised on appeal, further review

is precluded. This claim is dismissed. Rule 32.7(d) Ala. R.

Crim. P.

"This issue also forms the basis of Wilson's [ineffective-

assistance-of-counsel] claim .... He claims that trial counsel

failed to 'effectively advocate' for a felony murder jury

instruction. This claim is belied by the record, which

establishes that counsel did advocate for felony murder

charge, but ultimately agreed with Judge Fay that there was

no basis for the charge. (R. 1491-1505). In any event, Wilson

did not allege facts in support of his claim of prejudice, nor

facts to establish a reasonable probability that the result

would have been different had counsel objected. Because this

claim is insufficiently pleaded, it is dismissed pursuant to

Rule 32.6(b), Ala. R. Crim. P."

(C. 401-02.) We agree with the circuit court's judgment.

Indeed, as this Court explained in Wilson's direct appeal, the jury

found that Wilson intentionally killed one person himself and was an

accomplice to the killing of three other people; thus, Wilson had the

specific intent to kill four people. So, even if this Court assumed that

Wilson's argument that there were predicate felonies on which to base a

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felony-murder instruction was true, there was no rational basis, based on

the evidence at Wilson's trial, to show that the four deaths in this case

were unintended. Wilson's failure to plead facts showing that there was

a rational basis to conclude that the deaths in this case were unintended

is fatal to his claim that his counsel were ineffective for failing to secure

a felony-murder instruction. 5 Although Wilson pleaded facts showing

why he believed there existed underlying felonies on which to base a

felony-murder instruction, Wilson did not plead any facts to show that

any of the deaths were unintended by him. Additionally, Wilson failed to

plead facts showing that he was prejudiced by his counsel's alleged

deficient performance because, as this Court noted in his direct appeal,

"[t]he evidence in this case was overwhelming" and, "under the facts of

this case, there was no rational basis for a verdict convicting [Wilson] of

felony murder." Thus, the circuit court did not err when it summarily

dismissed this claim.

Accordingly, Wilson is due no relief on this claim.

5As the circuit court pointed out when it dismissed this claim,

Wilson's counsel did ask the trial court to instruct the jury on felony

murder but ultimately agreed with the trial court that no such

instruction was warranted on the facts of Wilson's case.

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I.A.12

Wilson argues that the circuit court erred when it summarily

dismissed his claim that his counsel were ineffective "for failing to call

crucial impeachment witnesses." 6 (Wilson's brief, p. 33.) Wilson's

argument is without merit.

In his petition, Wilson alleged that his counsel were "ineffective for

not calling witnesses to impeach the use of informant testimony by the

state." (Supp. C. 46.) Wilson claimed that,

"[d]uring the trial, the state called three 'jailhouse informant

witnesses, Khristian Ashby, David Newby, and Brian Harris,

whose testimony was motivated by the promise of or hope for

consideration in their own criminal cases. (R. 936, 1180,

1397.) Counsel was ineffective to not impeach these witnesses

with their records and the nature of the deals each was

offered. Additionally, the defense had knowledge that the

state was soliciting testimony from other potential witnesses,

6In his brief on appeal, Wilson argues in passing that his trial

counsel "failed to make or preserve proper objections or seek to limit"

testimony, he says, was "irrelevant and highly prejudicial," "including

that Ashby had purchased drugs from Mr. Wilson, sold drugs for Mr.

Wilson, and previously heard Mr. Wilson refer to killing someone."

(Wilson's brief, p. 34.) Wilson waived review of this claim on appeal

because he failed to provide any legal authority in support of his

proposition that the testimony in question was inadmissible even if a

proper objection had been made. See Rule 28(a)(1), Ala. R. App. P. Even

so, Wilson also failed to plead in his petition, or specifically argue on

appeal, what objections should have been made. Thus, this claim was

properly summarily dismissed because it was insufficiently pleaded in

his petition.

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using coercion and promises, but which did not result in trial

testimony. The state entered an undisclosed written

agreement for testimony with Greg Tribble (R. 63), without

subsequently calling him for trial, and Travis Hatfield had

been threatened with being sent to jail on a possession charge

if he didn't testify in a certain way against Mr. Wilson. (R. 72,

83-84.) Based on this information, defense counsel

represented that it was necessary to call one of the

prosecutors as a witness to these activities. (R. 64.) Defense

counsel was ineffective to not expose these highly improper

techniques employed by the state, and indeed did not follow

up on these leads or present any of this evidence at trial."

(Supp. C. 46.)

The circuit court dismissed Wilson's claim that his counsel were

ineffective for failing to call witnesses to impeach Khristian Ashby, David

Newby, and Brian Harris as insufficiently pleaded because Wilson failed

"to name a single witness who was available for such testimony, or how

that witness would have had personal knowledge necessary to impeach.

Further, his petition is silent as to why no reasonable lawyer would have

failed to discover and call such an unnamed witness to testify." (C. 441.)

We agree with the circuit court's judgment. This Court has consistently

held that, to sufficiently plead a claim that counsel were ineffective for

failing to call witnesses to testify, the petitioner must identify by name

the witnesses his or her counsel should have called to testify, what the

content of their testimony would have been, and that the witnesses were

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willing and able to testify. Because Wilson failed to sufficiently plead his

claim, the circuit court did not err when it summarily dismissed it.

The circuit court also dismissed Wilson's claim because it found

that, contrary to Wilson's allegations, his trial counsel "did impeach the

State's use of informant testimony" and that his counsel's "cross-

examination of the informant witnesses was reasonable." (C. 442.)

Specifically, the circuit court found:

"The record shows that Gladden [-- Wilson's defense

counsel --] cross-examined each of these witnesses about deals

they may have made with the State. In Gladden's cross-

examination of Brian Harris, he elicited information to show

that Harris' bond had been reduced from an original amount

of $200,000 to $10,000. (R. 1406-07). Similarly damaging

cross-examination was conducted on Khristian Ashby (R. 945-

52, 954-72), and David Newby (R. 1187-1196, 1199). In fact,

during his closing argument in the guilt phase, Gladden

capitalized on these witnesses by arguing the following:

" 'Now, you have Joey Wilson up here in the

Madison County Jail charged with capital murder.

What happens? Have you ever been to Baskin

Robbin? You walk in and take a number and you

wait to be served. Well, folks, there is a Baskin

Robbins alive and well in the Madison County Jail.

You get somebody that is charged with a crime,

especially something along this line, you get 24

other men in their cell with them, and no telling

how many hundreds in the rest of the jail, and see

how many witnesses you come up with. I've got

number one. Number one being served now. Do

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you want to testify against Joey Wilson? Oh, yes.

I would like vanilla. Listen to the testimony.

" 'They come up here and they tell you that

they don't expect anything out of these people. No

promises. I'm just going to do this because I want

to, because I'm a good citizen. Then listen to the

testimony as they -- first off, the Judge is going to

tell you and give you an instruction about the

testimony of persons that have been convicted of

crimes. I want you to listen really closely when he

does. ... Secondly, I want you to please use your

common sense as to what these so-called witnesses

have to say and why they have to say it, why the[y]

would say it.'

"(R. 1585-87).

"Gladden's closing argument continued to attack the

credibility of these witnesses, based on his cross-examination:

" 'I believe you also heard a little testimony

out of Brian Harris. ... He said Joey was up there

[in jail] trying to sound like a big guy. A lot of

people do that when they get in jail. A lot of people

do that.

" 'Now, David Newby, when I asked him a

simple question had he ever sold drugs before? He

said no. Then when I showed him his statement

where it said he had sold some drugs before -- do

you remember me asking him, "Did you just lie to

this jury?" "Yes, I did" .... He had said "No, I've

never sold drugs." Look at this statement where it

says he has sold drugs.

" 'Brian Harris, he has got no problem. All he

is looking at is probably getting out of a life

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sentence on his second or third drug conviction for

any of his testimony that he might give in this case

here today, but they didn't promise him anything.

That's not going to happen. I guess. Another thing

that is amazing to me is how you get a 95% bond

reduction, it didn't have a thing to do with this

case.'

"(R. 1587-88)."

(C. 441-42.) We agree with the circuit court's judgment.

As explained above, this Court has held that

" ' "[t]he 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)). ' " '[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))."

Bryant v. State, 181 So. 3d 1087, 1162 (Ala. Crim. App. 2011). Although

Wilson alleged that his counsel should have impeached Ashby, Newby,

and Harris, the circuit court correctly pointed out that his counsel did

precisely what Wilson claims they did not do. And although Wilson's

Rule 32 counsel would have impeached those witnesses differently,

Wilson's trial counsel's impeachment of those witnesses was not

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constitutionally ineffective. Thus, the circuit court did not err when it

summarily dismissed this claim.

Finally, the circuit court dismissed Wilson's claim concerning

Tribble and Hatfield as follows:

"Wilson's final claim in Paragraph 40 relates to the

State's investigation of Greg Tribble and Travis Hatfield as

potential witnesses. Wilson notes in his petition that neither

of these individuals testified at trial. As such, they are no

different from any other potential witness that could have

been, but was not called, by the State. The record

demonstrates that Gladden had uncovered the names of these

individuals during his investigation and preparation for trial,

and he asked for information necessary to challenge their

testimony had they been called. The State's decision not to

call them as witnesses in no way implies deficient

performance by Gladden. Likewise, because the jury never

heard about them or from them, Wilson cannot establish

prejudice by the State's involvement with them."

(C. 443.) We agree with the circuit court's judgment.

Indeed, Wilson did not adequately plead how his counsel's

performance was in any way deficient for not impeaching witnesses who

were not called to testify at his trial. Nor did Wilson plead any facts

showing that he was prejudiced by his counsel's alleged deficient

performance. Furthermore, to the extent that Wilson's claim could be

construed as alleging that his counsel were ineffective for failing to call

Tribble and Hatfield to testify to highlight the State's deals with other

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witnesses, 7 Wilson failed to allege any facts explaining how calling

additional witnesses to highlight "deals" with the State would have

impacted the jury's decision in this case when, as the circuit court pointed

out, they were well aware of the deals the State had with the other

informant witnesses. Moreover, Wilson failed to allege that Tribble and

Hatfield were willing and available to testify at Wilson's trial. Thus, the

circuit court did not err when it dismissed this claim.

Accordingly, Wilson is due no relief on this claim.

I.A.13

Wilson next argues that the circuit court erred when it summarily

dismissed his claim that his trial and appellate counsel were ineffective

"for failing to raise the pattern of improper peremptory strikes by the

Madison County District Attorney's Office, which is a relevant factor in

assessing the strength of a defendant's prima facie case against a State's

7As discussed in the Part II of this opinion addressing Wilson's

Brady claim, the State told Wilson's counsel that it never had a deal with

Hatfield, and, although it had worked out a deal with Tribble, that deal

was rescinded before the trial court issued a discovery order in Wilson's

case when Tribble failed to work as a drug informant as he had agreed to

do.

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racially discriminatory use of peremptory strikes." (Wilson's brief, pp.

35-36.) Wilson's argument is without merit.

In his petition, Wilson alleged that his trial and appellate counsel

were ineffective "for failing to raise the fact that there is an apparent

pattern in the use of peremptory strikes by the Madison County District

Attorney's Office that is a relevant factor to be considered in assessing

the strength of the defendant's prima facie case against the State for its

discriminatory use of peremptory strikes." (Supp. C. 165.) According to

Wilson, the "Madison County District Attorney's Office has been found

guilty of violating Batson[ v. Kentucky, 476 U.S. 79 (1986),] and has been

accused on several occasions of violating Batson due to its history or

striking blacks off the jury venire." (Supp. C. 165.) To support his claim

that the Madison County District Attorney had engaged in a pattern of

striking black jurors from cases, Wilson cited six opinions of this Court:

Moore v. State, 661 So. 2d 770 (Ala. Crim. App. 1995), Baker v. State, 683

So. 2d 1 (Ala. Crim. App. 1996), Bone v. State, 706 So. 2d 1291 (Ala. Crim.

App. 1997), Freeman v. State, 586 So. 2d 1013 (Ala. Crim. App. 1991),

Click v. State, 695 So. 2d 209 (Ala. Crim. App. 1997), and White v. State,

587 So. 2d 1218 (Ala. Crim. App. 1990). (Supp. C. 165-66.)

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The circuit court summarily dismissed Wilson's claim as being

insufficiently pleaded and as being without merit, holding:

"Wilson alleges that trial counsel and appellate counsel

were ineffective for failing to argue there was a pattern by the

Madison County District Attorneys' Office of improperly using

race in striking potential jurors. To support this claim,

Wilson cites six appellate cases in which the Madison County

DA's office was accused of violating Batson. The Court first

notes that only one conviction out of the six cited by Wilson

was reversed for a Batson violation. This Court does not find

that one Batson violation constitutes a pattern of racial

striking.

"In addition, Wilson has failed to plead any facts that, if

true, demonstrate how he was prejudiced by trial or appellate

counsel's failure to raise this issue. Wilson has identified no

black jurors that he claims were stricken in violation of

Batson. He fails to plead facts showing a reasonable

probability that the outcome of his case would have been

different if counsel had argued as he suggests they should

have. Because this claim is insufficiently pleaded, and

because it lacks merit, it is dismissed."

(C. 465.) We agree with the circuit court's judgment.

The Alabama Supreme Court has held that "a pattern in the use of

peremptory strikes" by a district attorney's office to remove black jurors

from the venire may be "a relevant factor to be considered ... in assessing

the strength of the defendant's prima facie case" under Batson. Ex parte

Bird, 594 So. 2d 676, 681 (Ala. 1991) (finding that the fact that judgments

in cases tried by the Montgomery County District Attorney's Office had

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been reversed on four occasions for violating Batson, coupled with other

factors, "supports the defendants' contentions and raises an inference of

discriminatory intent"). But Wilson pleaded no facts to establish such a

"pattern" by the Madison County District Attorney's Office. Instead, as

the circuit court pointed out when it summarily dismissed Wilson's claim,

Wilson cited only one case -- Moore v. State, 661 So. 2d 770 (Ala. Crim.

App. 1994) -- in which a trial involving the Madison County District

Attorney's Office was reversed for violating Batson. One violation of

Batson does not establish a "pattern" of discrimination in the Madison

County District Attorney's Office. Accordingly, Wilson's trial and

appellate counsel were not ineffective for failing to argue that the

Madison County District Attorney's Office had a "history" of exercising

its peremptory strikes in a discriminatory manner.

Accordingly, Wilson is due no relief on this claim.

I.A.14

Wilson argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were "ineffective in failing to

object to the prosecutor's misconduct in making biblical arguments" and

his claim that his "appellate counsel was ineffective for failing to raise

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the issue on direct appeal." (Wilson's brief, p. 37.) Wilson's argument is

without merit.

In his fourth amended petition, Wilson alleged that his trial and

appellate counsel were ineffective "for allowing the State to make the

mercy and Biblical arguments, for failing to object to these arguments,

for failing to move for a mistrial, and/or failing to ask for limiting

instructions from the court, and ... for failing to raise these issues on

appeal." (Supp. C. 186.) Wilson also raised a substantive argument that

the State improperly "referred to Biblical passages indicating that mercy

is out of the question and death is mandatory penalty." (Supp. C. 173.)

The circuit court summarily dismissed Wilson's substantive claim

and his claim of ineffective assistance of counsel as follows:

"Wilson claims that portions of the State's rebuttal

closing argument referring to Biblical passages was

'extremely improper.' This substantive claim is procedurally

barred for review herein because it could have been but was

not addressed at trial. Rule 32.2(a)(3), Ala. R. Crim. P. It is

also procedurally barred because it could have been but was

not raised at trial or addressed on direct appeal. Rule

32.2(a)(3) and (5), Ala. R. Crim. P.

"Even if this claim were not procedurally barred, Wilson

would be entitled to no relief. In furtherance of his plea for

mercy, and the pleas for mercy made by Wilson and his father,

Gladden [-- Wilson's defense counsel --] made certain Biblical

references in his closing argument. The complained-of

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remarks made by the prosecutor were made in the State's

rebuttal to Gladden's argument. It is well settled that 'a

prosecutor has a right based on fundamental fairness to reply

in kind to the argument of defense counsel.' DeBruce v. State,

651 So. 2d 599, 609 (Ala. Crim. App 1993), aff'd, Ex parte

DeBruce, 651 [So. 2d at] 624 (Ala. 1994). Because this claim

lacks merit, it is dismissed pursuant to Rule 32.7(d), Ala. R.

Crim. P.

"Regarding Wilson's claim that trial and appellate

counsel were ineffective for failing to object to the foregoing,

he has pleaded no facts establishing a reasonable probability

that the result of his trial would have been different had such

objections been made. Because it is insufficiently pleaded,

this claim is dismissed pursuant to Rule 32.6(b)."

(C. 467-68.) We agree with the circuit court's judgment.

It is well settled that

" '[a] prosecutor has a right to reply in kind to the

argument of defense counsel. This "reply-in-kind" doctrine is

based on fundamental fairness.' Ballard v. State, 767 So. 2d

1123, 1135 (Ala. Crim. App. 1999). ' "When the door is opened

by defense counsel's argument, it swings wide, and a number

of areas barred to prosecutorial comment will suddenly be

subject to reply." ' Davis v. State, 494 So. 2d 851, 855 (Ala.

Crim. App. 1986)."

Thompson v. State, 153 So. 3d 84, 174 (Ala. Crim. App. 2012) (footnote

omitted). This Court has previously upheld a prosecutor's Biblically

based rebuttal argument replying to a defense counsel's argument

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appealing to the Bible not to impose the death penalty. 8 See, e.g., Melson

v. State, 775 So. 2d 857, 891-93 (Ala. Crim. App. 1999) ("We find that the

prosecutor's comments, when taken in context with the entire closing

arguments, were proper as a reply in kind to the Biblical argument made

by Melson's counsel during closing argument that no man 'dare judge the

life of another. That's up to God.' "). Here, the comments that Wilson

alleges his trial and appellate counsel were ineffective for not objecting

to at trial and for not raising as improper on appeal were permissible

replies in kind to the arguments Wilson's trial counsel made during his

penalty-phase closing argument.

Indeed, during the penalty phase of Wilson's trial, his trial counsel

argued to the jury the reasons why, he believed, it should not impose the

death penalty in Wilson's case, and then he made the following argument:

8In Thompson, this Court noted that " '[a]lthough some states forbid

any biblical references in closing arguments -- State v. Berry, 141 S.W.

3d 549 (Tenn. 2004), and Fontenot v. State, 881 P.2d 69 (Okla. Crim. App.

1994) -- Alabama has recognized that "counsel's argument should not be

so restricted as to prevent reference, by way of illustration, ... to

principles of divine law or biblical teachings," [Ex parte] Waldrop, 459

So. 2d [959] at 963 [(Ala. 1984)]. However, we have also held that the

discretion to argue biblical references is not unlimited.' " 153 So. 3d at

174 n. 20 (quoting Gobble v. State, 104 So. 3d 920, 979 (Ala. Crim. App.

2010)).

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"I'm sure that some of you commit to some form of

Judeo-Christian belief, and if you believe that there is

something in any of the writings, including the Bible, that

says anything about you must take a life if a life is taken, I

submit to you that that is not even the present feeling of the

modern Christian churches. I don't think you will find that.

An eye for an eye and a tooth for a tooth is distorted. I believe

Jesus told you to love one another. I'm not asking you to love

anybody. I am asking you not to hate someone or have such

feelings toward someone that you will go past that which has

to be the ultimate punishment, never seeing the outside of the

free world again. While I am on that subject, we are one of

the few civilized countries in the world that has a death

penalty. Think about that."

(Record in CR-97-2569, R. 1818-19.)

In response to Wilson's counsel's appeal to Scripture to argue that

the jury should not impose the death penalty in this case, the State

argued the following:

"I submit to you that Joey Wilson does not really know

the meaning of the term mercy, until now. Now he has an

understanding of mercy and he hopes that you will develop

rather quickly here that he understands it, mercy. Not the

kind of mercy that was shown to Johnny Couch by him, not

the kind of mercy that was shown to Brian Carter by him, not

the kind of mercy that was shown to Michelle Hayden Mills

by him. Now he wants to talk to you about mercy. He wants

to talk to you about forgiveness. He may receive forgiveness

from his god at any moment he repents and asks his god for

forgiveness. If you believe, you will accept that. However, the

State of Alabama is not quite so forgiving. I can't speak for

the family. I have come to know them, but I cannot look into

their hearts and tell you whether or not they might find deep

seated in their Christian beliefs to forgive him. They might

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and if they do I commend them. But this is not a court of

mercy. This is not a court of sympathy. This is a court of law.

What we pursue here is not forgiveness and it is not

sympathy. We pursue justice.

"Mr. Gladden talks to you about Jesus. Let me tell you

what he said. He said you have heard an eye for an eye and a

tooth for a tooth. But I say to you if a man slaps one side of

your face turn ye therefore the other cheek, or words like that.

Now, what the Old Testament required -- he is correct, an eye

for an eye and a tooth for a tooth, life for a life, a hand for a

hand. That was the Mosaic law in Deuteronomy. It was

there, an eye for an eye and a tooth for a tooth. But you know

that in that same Levitican cult they did not allow you to

convict a man of a capital crime. They did not allow you to

put a man to death on the testimony of one witness. You had

to have at least two. You have heard both of them. Let me

tell you something else. I think you know what the Apostle

Paul said in this treatise to the Romans, that they are to be in

subjection to the authority, to follow the laws of Rome. Not

when in Rome do as the Romans, but to pay tribute, to pay

those taxes as they are required by Rome, to be in subjection

to the civil authority.

"Now let's move on from the scriptures and get back to

this case."

(Record in CR-97-2569, R. 1823-25.) In response to Wilson's counsel's

argument that the United States of America is "one of the few civilized

countries" that employs a death penalty against people who commit

capital murder, the State argued:

"We are told that of all the civilized countries in the

world only this one has the death penalty. Ladies and

gentlemen, I submit to you that there is not another country

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in the world and has never been another country in which the

people, the citizens, have been provided so much freedom by

their government and had so little of it taken away. No

country in the history of the world has provided the protection

to its citizens and asked so little of them and taken so little

from them in their lives, their freedoms. But civilized, how

civilized was it in that little room on the 25th of September

almost two years ago when these seven young people were

treated like they were, and four of them were executed and

two of them were shot in a period of 10 to 15 seconds? How

civilized was that? Well, that's not representative of our

country, is it? Thank God, I hope it's not for things like that

to happen. Somebody has to step up and be held accountable

for it."

(Record in CR-97-2569, R. 1828-29.) Then the State closed its rebuttal

argument as follows:

"You heard the family that testified. You heard them

testify and talked of their loss. They have told you how

different it is to lose one by a terminal illness, to lose your

father and your mother. You sort of expect that you have to

lose them sometime. This is different, ladies and gentlemen,

when your young son's life has been terminated at a very early

age. That is going to be with them -- it will never be away

from them for the rest of their lives. Johnny Couch, a great

loss to his family. Michael Beaudette will not make any more

coffee for his mother. Lamar Hemphill will never again have

the opportunity to do for his family. Brian Carter will never

have the opportunity to go to church again. But Joey Wilson

wants you to forgive him. Let God and these families worry

about forgiveness, ladies and gentlemen.

"....

"It is a difficult process to be involved in. Probably to

some of you never have you had to make such a momentous

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decision as this. It is important to this side of the room and it

is important to that side of the room. I am not talking about

sides. I am talking about now accountability, accountability

for one's actions. You have gauged the credibility. You have

once found him accountable, and in this next stage we look

further to accountability. Don't let anyone say to you you are

taking his life, as he took the life of someone else. Ladies and

gentlemen, you are not going to take his life, whatever you

may say, whatever all 12 of you might say. You are doing your

duty. The Judge is not going to take his life. If it is taken, it

will be taken by the State applying the laws of this State. We

will render unto Caesar that which is Caesar's. Does Joey

Wilson rate your forgiveness? That's not what you are here

for. You are here to render justice. I submit to you that the

verdict brought back from your deliberations should be that

Joey Wilson should pay the ultimate price and die in the

electric chair.

"Now, there has been a lot of talk here about death. We

all know something about death, or we all think we know

something about death, but to those who have looked in the

face of death, those who have stared eyeball to eyeball with it,

they have a different understanding of death. I ask that you

do your duty and that you will return to this honorable Court

a recommendation that Joey Wilson be put to death."

(Record in CR-97-2569, R. 1830-

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