Opinion

Benjamin Young v. State of Alabama

Court: Court of Criminal Appeals of Alabama
Filed: Mar 24, 2023
Status: Published
On the bench: JUDGE KELLUM
Cited by: 0 cases
Authority: More cited than 23.1%

expressing disapproval of the 'mechanical' adoption of findings of fact prepared by a party, but stating that such findings are formally those of the trial judge and 'are not to be rejected out- of-hand'

How later courts described this case

expressing disapproval of the 'mechanical' adoption of findings of fact prepared by a party, but stating that such findings are formally those of the trial judge and 'are not to be rejected out- of-hand'
'Claims of ineffective assistance of counsel at trial and on direct appeal are evaluated under the standard set forth in 44 CR-21-0393 Strickland [v. Washington,] 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693 [(1984
'[T]he Supreme Court has never hinted at a per se rule that defense lawyers must keep all promises made in opening statement, even if a mid-trial change in circumstances alters the defense strategy.'
'[T]he manner of presenting evidence [is] one of trial tactics properly vested in counsel.'

Written by the judges who cited it.

The opinion

REL: March 24, 2023

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, 2022-2023

_________________________

CR-21-0393

_________________________

Benjamin Young

State of Alabama

Appeal from Colbert Circuit Court

(CC-16-339.60)

KELLUM, Judge.

Benjamin Young appeals the circuit court's summary dismissal of

his petition for postconviction relief filed pursuant to Rule 32, Ala. R.

Crim. P., attacking his capital-murder conviction and sentence of death.

CR-21-0393

In February 2018, Young was convicted of murdering Ki-Jana

Freeman by shooting Freeman while he was in a vehicle, an offense

defined as capital by § 13A-5-40(a)(17), Ala. Code 1975, and assault in

the first degree for shooting Tyler Blythe, a violation of § 13A-6-20(a),

Ala. Code 1975. 1 The jury recommended by a vote of 11 to 1 that Young

be sentenced to death. The circuit court sentenced Young to death for the

capital-murder conviction and to 20 years' imprisonment for the assault

conviction. This Court affirmed Young's convictions and sentences. See

Young v. State, [Ms. CR-17-0595, August 6, 2021] ___ So. 3d ___ (Ala.

Crim. App. 2021). The Alabama Supreme Court denied certiorari review.

See Ex parte Young, (No. 1210291, October 21, 2022).

In July 2020, Young filed a Rule 32 petition attacking his capital-

murder conviction and sentence of death. (C. 7-107.) The State filed its

response and moved to dismiss the petition. (C. 120-221.) Young

responded to the State's motion. (C. 222.) In January 2022, the

postconviction court issued a 124-page order summarily dismissing

1Blythe was shot 13 times but survived his injuries. He testified at

Young's trial.

CR-21-0393

Young's petition. (R. 640-763.) Young then filed a timely notice of appeal

to this Court. (C. 780.)

Section 13A-5-53.1, Ala. Code 1975

The postconviction petition in this case was filed in compliance with

§ 13A-5-53.1, Ala. Code 1975, and while Young's direct appeal from his

capital-murder conviction was pending in the Alabama appellate courts.

That statute specifically provides that Rule 32.2(c), Ala. R. Crim. P.,

which governs the limitation period in which to file a postconviction

petition, does not apply to death-penalty cases or to any defendant

sentenced to death after August 1, 2017. See § 13A-5-53.1(j), Ala. Code

1975. Pursuant to § 13A-5-53.1(c), Ala. Code 1975, a defendant

sentenced to death shall have 365 days from the date the appellant's first

brief was filed on direct appeal to file a timely postconviction petition.

Also, the circuit court, for good cause, may grant one 90-day extension in

which to file that postconviction petition. See § 13A-5-53.1(d), Ala. Code

1975.

CR-21-0393

Based on this Court's records,2 Young's first brief on direct appeal

was filed on April 10, 2019. Young sought and was granted a 90-day

extension to file his postconviction petition. Young's petition was due to

be filed by July 8, 2020, and was timely filed on July 7, 2020. See § 13A-

5-53.1, Ala. Code 1975. See Ex parte Marshall, 323 So. 3d 1188 (Ala.

2020); Stanley v. State, 335 So. 3d 1 (Ala. Crim. App. 2020).

Facts

In August 2021, this Court affirmed Young's capital-murder

conviction and his sentence of death. In our opinion, we summarized the

facts surrounding Young's convictions:

"On March 1, 2016, Young attended a meeting of a gang

called the 'Almighty Imperial Gangsters' held by Thomas

Hubbard, the leader of the gang, in Hubbard's bedroom at his

mother's house on Midland Avenue in Muscle Shoals. Other

members at the meeting were Peter Capote, Dewayne Austin

Hammonds, Riley Hamm III, De'Vontae Bates, and Michael

Blackburn. Two days earlier the Hubbards's house had been

burglarized while Hubbard was attending his grandmother's

funeral. Several items were stolen from the house, including

a television, an Xbox game console, a PlayStation game

console, and some cash. Hubbard reported the burglary to the

Muscle Shoals Police Department. Officer Raymond Schultz

of the Muscle Shoals Police Department, who responded to the

burglary call, testified at trial that Hubbard was upset and

angry about the burglary. (R. 463.)

2This Court may take judicial notice of its own records. See Hull v.

State, 607 So. 2d 369, 371 n. 1 (Ala. Crim. App. 1992).

CR-21-0393

"Hubbard told everyone in the meeting on March 1 that

he wanted to find and kill the person who burglarized his

house. Hubbard asked the gang for help. Bates testified that

in the meeting they developed a plan to find out who broke

into Hubbard's house and then 'lure him to a place' and kill

him. (R. 749.)

"Hammonds, who owned the Xbox game console stolen

from Hubbard's house, testified that he told Hubbard at the

meeting that [Ki-Jana] Freeman might have taken the Xbox.

Hammonds knew Freeman from working with him in the

past, and he had seen a Facebook post by Freeman

advertising an Xbox for sale. The gang developed a plan for

Hammonds to meet with Freeman to see if the Xbox Freeman

was offering to sell was Hammonds's Xbox. Although the plan

changed throughout the meeting, the gist of the plan was that

Hammonds (either alone or with Hamm) would meet with

Freeman and, if the Xbox was the one stolen from Hubbard's

house, Hammonds would signal to or call Young and Capote,

who would take Freeman somewhere to interrogate and kill

him. Hammonds testified that Young, Capote, and Hubbard

planned to use Hubbard's SKS rifle and a pistol to kill

Freeman. (R. 815.) Bates testified that besides the SKS rifle,

Hubbard owned a .22-caliber revolver and a .45-caliber

handgun. The State introduced an undated photograph

showing Hubbard standing in his bedroom holding an SKS

rifle.

"Hammonds testified that he sent a message to Freeman

on Facebook Messenger about the Xbox. Hammonds and

Freeman communicated throughout the day about

Hammonds purchasing the Xbox from Freeman. Hammonds's

Facebook Messenger exchange with Freeman was introduced

at trial.

"A little before 9:00 p.m., Young and his girlfriend,

Meagan, along with Capote and his girlfriend, Bridgette, left

Hubbard's house to buy ammunition for the SKS rifle.

CR-21-0393

Meagan testified that Young drove Meagan's car to the

Gander Mountain outdoor retail store in Florence. Young

asked Meagan to buy the ammunition, and he told her what

kind of ammunition to buy. The State introduced surveillance

footage from Gander Mountain showing Meagan's car pulling

into the Gander Mountain parking lot. Surveillance footage

from inside the store showed Meagan buying the ammunition

at 9:01 p.m., and a receipt from the store showed that Meagan

bought a box of 7.62X39-millimeter ammunition. The

surveillance footage showed Meagan returning to the car and

the car leaving the parking lot. Meagan testified that after she

bought the ammunition Young drove them back to Hubbard's

house.

"Around the time Young, Capote, Meagan, and

Bridgette got back to Hubbard's house from Gander

Mountain, Hammonds left to go to work at a Wal-Mart in

Florence. At 9:28 p.m., Hammonds sent Freeman a message

asking him to call him, and he gave Freeman his cellular

telephone phone number. Freeman did not call Hammonds

but sent a message asking if Hammonds still wanted the

Xbox. Hammonds testified that he never arranged a meeting

with Freeman and that when he left for work around 9:30

p.m., the plan was for Bates to 'handle it' by setting up

Freeman. (R. 823.) Hammonds said that Young, Capote,

Hubbard, Bates, Hamm, and Blackburn were at Hubbard's

house when he left for work and that the plan was for them to

use 'the white Ram' to 'go kill him.' (R. 826-27.) The State

introduced Hammonds's timecard from Wal-Mart showing

that Hammonds clocked in to work a little before 10:00 p.m.

on March 1 and clocked out a little after 6:00 a.m. the next

morning.

"Around the time Hammonds left for work, Bates sent

Freeman a message on Facebook Messenger asking him if he

had '11 hits' of acid he could purchase. (R. 757-58.) Bates

explained that he volunteered to lure Freeman to the Spring

Creek Apartments by asking Freeman if he could buy some

CR-21-0393

acid from him. Bates admitted he knew he was setting up

Freeman so that the others could kill him.

"A little after 10:30 p.m., Young, Capote, Hubbard, and

Hamm left Hubbard's house in a white pickup truck. Young

was driving and Capote was in the front passenger's seat.

Hubbard and Hamm were in the backseat. They had with

them two large black garbage bags. Bates testified that he

stayed at Hubbard's house and continued exchanging

messages with Freeman. Bates relayed all the information he

received from Freeman to one of the gang member's

girlfriends, who was at the house with Bates, and the

girlfriend relayed the information to Young, who was in the

truck on the way to the Spring Creek Apartments.

"The State introduced surveillance video from the

Spring Creek Apartments showing a white four-door Dodge

pickup truck pulling into the apartment complex around

10:47 p.m. Several minutes later Freeman sent Bates a

message: 'Boutta pull in. Just passed Fred's.' Bates asked,

'What kinda car u in cause im in the back.' (C. 479.) Freeman

responded at 10:58 p.m., 'Blue Mustang. Pulling in now. The

back on the right road or the left road.' The surveillance video

shows a blue Mustang vehicle pulling into the parking lot of

the Spring Creek Apartments at 10:58 p.m.

"Haley Burgner, Freeman's girlfriend, testified that on

the afternoon of March 1 she and Freeman were

communicating on Facebook Messenger. Freeman told her he

planned to meet "Dewayne" to sell him an Xbox. (R. 508.)

Freeman told Burgner that Tyler Blythe was with him in case

anything 'goes down.' Later Freeman told Burgner that he

was heading to meet 'Vonte' to get some money that Vonte

owed him. At 10:58 p.m., Freeman sent a message to Burgner

that he was 'getting my cash r[ight] n[ow].' The Facebook

Messenger exchange between Freeman and Burgner was

admitted into evidence.

CR-21-0393

"Blythe testified that on March 1 he was with Freeman

when Freeman asked him to ride with him to the Spring

Creek Apartments to meet Bates. Blythe testified that

Freeman pulled into the parking lot of the Spring Creek

Apartment complex and parked the car. Blythe asked

Freeman why they were there, and Freeman told Blythe they

were there to sell some acid strips.

"While they were sitting in Freeman's car in the parking

lot, Blythe and Freeman turned around in their seats to look

at a white pickup truck that had backed up in the parking lot.

Blythe testified that they had just turned back around when

Freeman looked in the rearview mirror and said something to

Blythe and then, Blythe said, 'they started shooting.' (R. 556.)

Freeman and Blythe were each shot several times. Blythe did

not know how many shooters there were, but, he said, 'it

seemed like more than one.' (R. 559.) Freeman was

unresponsive at the scene and was pronounced dead a short

time later. Blythe was taken by ambulance from the scene and

airlifted to Huntsville Hospital, where he underwent surgery

and was hospitalized for seven days.

"Jodi Bohn testified that around 11:00 p.m. on March 1

she was looking out of her apartment window at the Spring

Creek Apartments when she saw a white pickup truck back

out of a parking space and stop next to a curb. Bohn saw the

doors of the truck open. The driver and the front-seat

passenger got out of the truck and started walking toward the

back of the truck. Bohn heard gunfire that she thought came

from more than one weapon, so she moved away from the

window. Bohn described the driver of the pickup truck as 'big

and heavy.' (R. 592.) The record shows that Young was 6 feet

4 inches tall and weighed 270 pounds. (C. 72.)

"In March 2016 Dale Springer lived in an apartment at

the Chateau Orleans apartments in Muscle Shoals. Shortly

after midnight on March 2, Springer went outside to smoke a

cigarette. Springer saw a white Dodge pickup truck with a

double cab pull into the parking lot of the Chateau Orleans

CR-21-0393

complex 'pretty fast' and back into a parking space. (R. 624.)

Two men got out of the truck. Springer saw a 'light silver' or

'light gold' four-door automobile pull into the parking lot. The

driver of the truck spoke with someone in the car, and the car

left. The two men from the truck walked away, staying in the

dark area of the apartment complex. Later that morning

Springer heard on the radio that police were looking for a

white Dodge pickup truck involved in a shooting, so Springer

called the police. Law-enforcement officers learned that the

white truck had been stolen earlier that year.

"Det. [Wes] Holland testified that, after interviewing

Burgner the morning after the shooting, he began looking for

Hammonds and Bates. He interviewed Bates on March 3 and

Hammonds on March 4. Hammonds viewed the surveillance

video from the Spring Creek Apartments and identified

Young as the driver of the white truck and Capote as the

passenger. Hammonds told Det. Holland that, after the

shooting, Young told him that there were '15 shots that fired

off' and that he 'took care of it.' (R. 830.) At trial both

Hammonds and Bates testified that they had seen the

surveillance video from the Spring Creek Apartments and

that Young was the driver of the white pickup truck.

"During his interview with Det. Holland on March 4,

Hammonds provided Young's and Capote's names and

Hubbard's name and address. Hubbards' house was located

about one block from Chateau Orleans, where two days earlier

law-enforcement had located the white pickup truck. Det.

Holland and Captain Stuart Setliff of the Tuscumbia Police

Department immediately went to Hubbard's house to set up

surveillance. They saw Young leave the house in a silver car.

When other law-enforcement officers tried to stop Young,

Young 'accelerated to a high rate of speed.' (R. 933.) Young

led officers from several law-enforcement agencies on a chase

across state lines into Tennessee, where Young eventually

wrecked the car and was arrested.

CR-21-0393

"Det. Holland took a DNA swab from Young, and

Young's DNA matched the DNA on a soda can found in the

white pickup truck. DNA from a cigarette butt found in the

pickup truck matched DNA from a swab taken from Capote.

"Shawn Settles testified that, from August 2015 to May

2016, he was in the Colbert County jail awaiting trial on a

second-degree-robbery charge and a fraudulent-use-of-a-

credit-card charge. In March 2016 Hubbard, who had been

arrested for Freeman's murder, became Settles's cellmate.

Capote, who had also been arrested for Freeman's murder,

was placed in a nearby cell. Settles testified that Hubbard and

Capote communicated with each other and with Settles about

the details of Freeman's murder. Settles helped Hubbard and

Capote pass notes back and forth to each other, and, rather

than destroy the notes for Hubbard as Hubbard thought

Settles was doing, Settles secretly kept the notes. Settles

testified at trial that he had been convicted of second-degree

robbery and fraudulent use of a debit card and that he was

testifying at trial based on an agreement with the State.

"Based on information from Settles, law-enforcement

officers got a search warrant for property in Franklin County,

Alabama. Law-enforcement officers found an SKS rifle and a

black magazine for the SKS buried in two black garbage bags

on the property."

Young, ___ So. 3d at ___ (footnotes omitted).

Two of Young's accomplices have been convicted for their roles in

the murder of Freeman and the assault of Blythe. Peter Capote was

convicted of capital murder and assault in the first degree and was

sentenced to death. This Court affirmed his conviction and death

sentence on direct appeal. See Capote v. State, 323 So. 3d 104 (Ala. Crim.

CR-21-0393

App. 2020). Thomas Hubbard was convicted of capital murder and

assault in the first degree and was sentenced to life imprisonment

without the possibility of parole. This Court affirmed his conviction and

sentence on direct appeal. See Hubbard v. State, 324 So. 3d 855 (Ala.

Crim. App. 2019).

As noted above, two of Young's accomplices testified at Young's trial

-- Austin Hammonds and De'Vontae Bates. Hammonds testified that at

the time of Young's trial he had not been charged with any offense related

to the murder and assault. (Trial R. 840-43.) Bates testified that he had

been convicted of conspiracy to commit murder but was awaiting his

sentence for that conviction. In exchange for Bates's truthful testimony

at Young's trial, Bates said, the State would recommend that his sentence

for that conviction be 20 years. (Trial R. 722.)

Standard of Review

Young filed this postconviction petition attacking his capital-

murder conviction and sentence of death. According to Rule 32.3, Ala. R.

Crim. P., Young bears the sole burden of pleading all of his claims in his

petition.

"The petitioner shall have the burden of pleading and

proving by a preponderance of the evidence the facts

CR-21-0393

necessary to entitle the petitioner to relief. The state shall

have the burden of pleading any ground of preclusion, but

once a ground of preclusion has been pleaded, the petitioner

shall have the burden of disproving its existence by a

preponderance of the evidence."

According to Rule 32.7(d), Ala. R. Crim. P., a circuit court may

summarily dismiss a petition:

"If the court determines that the petition is not

sufficiently specific, or is precluded, or fails to state a claim,

or that no material issue of fact or law exists which would

entitle the petitioner to relief under this rule and that no

purpose would be served by any further proceedings, the court

may either dismiss the petition or grant leave to file an

amended petition. Leave to amend shall be freely granted.

Otherwise, the court shall direct that the proceedings

continue and set a date for hearing."

Rule 32.6(b), Ala. R. Crim. P., further provides:

"The petition must contain a clear and specific

statement of the grounds upon which relief is sought,

including full disclosure of the factual basis of those grounds.

A bare allegation that a constitutional right has been violated

and mere conclusions of law shall not be sufficient to warrant

any further proceedings."

In regard to the pleading requirements of Rule 32, Ala. R. Crim. P.,

this Court has stated:

" '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

CR-21-0393

(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 in

Rule 32.9, Ala. R. Crim. P., to present evidence proving those

alleged facts."

Boyd v. State, 913 So. 2d 1113, 1125 (Ala. Crim. App. 2003).

We have characterized the burden of pleading in regard to a

postconviction petition as a heavy burden. Hyde v. State, 950 So. 2d 344,

356 (Ala. Crim. App. 2006).

"Although postconviction proceedings are civil in

nature, they are governed by the Alabama Rules of Criminal

Procedure. See Rule 32.4, Ala. R. Crim. P. The 'notice

pleading' requirements relative to civil cases do not apply to

Rule 32 proceedings. 'Unlike the general requirements

related to civil cases, the pleading requirements for

postconviction petitions are more stringent....' Daniel v.

State, 86 So. 3d 405, 410-11 (Ala. Crim. App. 2011). Rule

32.6(b), Ala. R. Crim. P., requires that full facts be pleaded in

the petition if the petition is to survive summary dismissal.

See Daniel, supra. Thus, to satisfy the requirements for

pleading as they relate to postconviction petitions,

Washington was required to plead full facts to support each

individual claim."

Washington v. State, 95 So. 3d 26, 59 (Ala. Crim. App. 2012).

" 'An evidentiary hearing on a [Rule 32] petition is

required only if the petition is "meritorious on its

face." Ex parte Boatwright, 471 So. 2d 1257 (Ala.

1985). A petition is "meritorious on its face" only

if it contains a clear and specific statement of the

grounds upon which relief is sought, including full

disclosure of the facts relied upon (as opposed to a

CR-21-0393

general statement concerning the nature and

effect of those facts) sufficient to show that the

petitioner is entitled to relief if those facts are true.

Ex parte Boatwright, supra; Ex parte Clisby, 501

So. 2d 483 (Ala .1986).'

"Moore v. State, 502 So. 2d 819, 820 (Ala. 1986)."

Bracknell v. State, 883 So. 2d 724, 727-28 (Ala. Crim. App. 2003).

The majority of the claims raised by Young involve allegations that

his counsel's performance at his capital-murder trial was deficient.

When reviewing a claim of ineffective assistance of counsel, we apply the

standard adopted by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984).

"First, the defendant must show that counsel's

performance was deficient. This requires showing that

counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.

Unless a defendant makes both showings, it cannot be said

that the conviction or death sentence resulted from a

breakdown in the adversary process that renders the result

unreliable."

Strickland, 466 U.S. at 687.

Regarding claims that counsel's performance was deficient, this

Court has stated:

CR-21-0393

"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. 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).

A postconviction petition may also be summarily dismissed on the

merits of the claims raised in the petition.

" ' "Where a simple reading of the petition for post-conviction

relief shows that, assuming every allegation of the petition to

be true, it is obviously without merit or is precluded, the

circuit court [may] summarily dismiss that petition." ' Bishop

v. State, 608 So. 2d 345, 347-48 (Ala. 1992) (emphasis added)

(quoting Bishop v. State, 592 So. 2d 664, 667 (Ala. Crim. App.

1991) (Bowen, J., dissenting)). See also Hodges v. State, 147

So. 3d 916, 946 (Ala. Crim. App. 2007) (a postconviction claim

is 'due to be summarily dismissed [when] it is meritless on its

face')."

Bryant v. State, 181 So. 3d 1087, 1102 (Ala. Crim. App. 2011).

Last, "[t]his Court may affirm the judgment of the circuit court for

any reason, even if not for the reason stated by the circuit court." Acra

v. State, 105 So. 3d 460, 464 (Ala. Crim. App. 2012).

CR-21-0393

At trial, Young was represented by attorneys Ben Gardner, Jr.,

Nathan Johnson, and Leigh Anne Landis.

Guilt-Phase Issues

Young argues that the postconviction court erred in summarily

dismissing his claims that his counsel was ineffective at the guilt phase

of his capital-murder trial because, he says, counsel failed to adequately

investigate and present evidence that he was not guilty. Young raises

numerous claims regarding this issue -- we review each claim

individually.

Initially, Young argues that, when summarily dismissing his

claims, the postconviction court confused the burden of pleading with the

burden of proof and incorrectly dismissed his claims of ineffective

assistance of counsel.

This Court has discussed the distinction between the burden of

pleading and burden of proof in relation to a postconviction proceeding:

" '[A]t the pleading stage of Rule 32 proceedings, a

Rule 32 petitioner does not have the burden of

proving his claims by a preponderance of the

evidence. Rather, at the pleading stage, a

petitioner must only provide "a clear and specific

statement of the grounds upon which relief is

CR-21-0393

sought." Rule 32.6(b), Ala. R. Crim. P. Once a

petitioner has met his burden of pleading so as to

avoid summary disposition pursuant to Rule

32.7(d), Ala. R. Crim. P., he is then entitled to an

opportunity to present evidence in order to satisfy

his burden of proof.'

"Ford v. State, 831 So. 2d 641, 644 (Ala. Crim. App. 2001). A

claim may not be summarily dismissed because the petitioner

failed to meet his burden of proof at the initial pleading stage,

a stage at which the petitioner has only a burden to plead.

See Smith v. State, 581 So. 2d 1283, 1284 (Ala. Crim. App.

1991) ('When the State does not respond to a petitioner's

allegations, the unrefuted statement of facts must be taken as

true. Chaverst v. State, 517 So. 2d 643, 644 (Ala. Crim. App.

1987). Further, when a petition contains matters which, if

true, would entitle the petitioner to relief, an evidentiary

hearing must be held. Ex parte Boatwright, 471 So. 2d 1257,

1258 (Ala. 1985).')."

Johnson v. State, 835 So. 2d 1077, 1079–80 (Ala. Crim. App. 2001). For

the reasons stated in this opinion, we conclude that the postconviction

court did not confuse the burden of pleading with the burden of proof.

See Bryant v. State, 181 So. 3d 1087, 1102 (Ala. Crim. App. 2011).

Young further argues that the postconviction court erred in

considering his ineffective-assistance-of-counsel claims individually and

not cumulatively as, he says, the law mandates. "When considering

whether the claims of ineffective assistance of counsel were sufficiently

pleaded, the circuit court correctly considered each claim individually."

CR-21-0393

Washington v. State, 95 So. 3d 25, 58 (Ala. Crim. App. 2012). "[T]o satisfy

the pleading requirements of Rule 32, each claim of a petition must

contain a clear and specific statement of the grounds for relief and the

underlying facts that, according to the petitioner, provide the basis for

the grounds for relief. Even ineffective assistance of counsel claims must

be pleaded sufficiently." Taylor v. State, 157 So. 3d 131, 139-40 (Ala.

Crim. App. 2010). Nothing in the postconviction court's order reflects

that it considered the wrong burden of proof or that it violated this

Court's holding in Washington, supra. Thus, this claim is meritless.

The State first asserts that the majority of the issues raised by

Young in his brief to this Court are waived, pursuant to Rule 28(a)(10),

Ala. R. App. P., because Young's brief is substantially the same as the

postconviction petition that Young filed in the Colbert Circuit Court.

The State relies on this Court's decision in Morris v. State, 261 So. 3d

1181 (Ala. Crim. App. 2016), to support this argument. In Morris, we

stated:

"Morris's obligation as the appellant was to present an

argument in support of his position on appeal, and his

argument on appeal is that the circuit court erred when it

dismissed the claims of ineffective assistance of counsel. With

respect to that issue, Morris was required to set out the

reasons supporting his argument that the circuit court erred,

CR-21-0393

with citations to legal authorities supporting that argument,

and citation to parts of the record relied on as support for his

claim of error. Morris's argument that the trial court

improperly dismissed the 19 claims of ineffective assistance of

counsel is unsupported by any of the above. The mere

repetition of the claims alleged in the Rule 32 petition does

not provide any analysis of the circuit court's judgment of

dismissal; obviously there was no judgment of dismissal until

after the petition was filed."

Morris, 261 So. 3d at 1194-95. Young's postconviction petition is 104

pages in length and his brief is 98 pages. While some issues raised in

Young's postconviction petition are very similar to the arguments made

on appeal, they are not identical. Indeed, the State does not make this

argument for every issue that Young raises in his brief to this Court.

Accordingly, we will consider Young's arguments on appeal.

Young first argues that his trial counsel was ineffective for failing

to interview Colton Vickery, "a peer of Austin Hammonds," and for failing

to present Vickery's testimony at Young's trial. (Young's brief at p. 58.)

Young pleaded in his postconviction petition that Vickery told an

investigator that he and De'Vontae Bates planned to kill both Freeman

and Blythe. Young pleaded that Vickery's testimony "would have

suggested to the jury that Hammonds was more involved than he

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portrayed and would have controverted Bates's testimony, thus

undermining the State's case." (C. 131.)

When addressing Young's claim that trial counsel was ineffective

for failing to interview Vickery, the postconviction court made the

following findings:

"Young fails to state a valid claim for relief or present a

material issue of fact or law under Rule 32.7(d) of the

Alabama Rules of Criminal Procedure. Testimony from

Vickery that Bates and Hammonds targeted Blythe and

Freeman would have been cumulative to the testimony

presented at trial. Bates testified that he targeted Freeman

for the theft of Hubbard's Xbox and intended Freeman's

death. Hubbard likewise testified that Freeman was

targeted. '[A] petitioner cannot satisfy the prejudice prong of

the Strickland [v. Washington, 466 U.S. 668 (1984)] test with

evidence that is merely cumulative of evidence already

presented at trial.' Benjamin v. State, 156 So. 3d 424, 453

(Ala. Crim. App. 2013).

"Moreover, Young fails to satisfy the specificity and full

factual pleading requirements of Rules 32.3 and 32.6(b) of the

Alabama Rules of Criminal Procedure. Young fails to

sufficiently plead how failure to interview Vickery and

present his testimony fell below any standard of professional

norm. Young suggests that counsel's actions were

unreasonable as compared to those of Capote's and Hubbard's

counsel, because in their trials, Vickery testified. However,

the Court notes that Capote was convicted and sentenced to

death and Hubbard was convicted and sentenced to life

without the possibility of parole. In light of this fact, Young's

failure to explain how the testimony of Vickery would have

changed the result of his own case is significant.

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"Furthermore, Young fails to plead how counsel's

'failure' was not part of a reasonable trial strategy. Calling

Vickery to testify would have exposed the jury to another

witness connected to gang activity. Distancing Young from

further unnecessary, cumulative gang activity is a reasonable

trial strategy in a case predicated on gang activity. Young

likewise fails to plead how counsel's actions actually

prejudiced him in light of the testimony given by Bates and

Hammonds. Thus, Young fails to plead facts that, if true,

would prove either Strickland [v. Washington, 466 U.S. 668

(1984),] prong. Such 'bare claims' are insufficient to warrant

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

(C. 657-58.)

To sufficiently plead a claim regarding counsel's failure to call a

witness, this Court has stated that

"a Rule 32 petitioner is required to identify the names of the

witnesses, to plead with specificity what admissible testimony

those witnesses would have provided had they been called to

testify, and to allege facts indicating that had the witnesses

testified there is a reasonable probability that the outcome of

the proceeding would have been different."

Mashburn v. State, 148 So. 3d 1094, 1151 (Ala. Crim. App. 2013).

Summary dismissal of this claim was proper because Young failed

to plead how he was prejudiced, i.e., that there was a "reasonable

probability that the outcome of the proceeding would have been different"

had Vickery testified. Mashburn, 148 So. 3d at 1151.

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Also, several witnesses testified that Hammonds targeted Freeman

because he had stolen an Xbox from Hubbards's house and that the gang

planned to lure Freeman to the parking lot of an apartment complex to

kill him.

"The fact that there were other witnesses available who could

have testified ... does not demonstrate that counsel was

ineffective in choosing the theory and strategy that was

presented at the penalty phase.' Barnhill v. State, 971 So. 2d

106, 116 (Fla. 2007). '[C]omplaints of uncalled witnesses are

not favored in federal habeas corpus review because the

presentation of testimonial evidence is a matter of trial

strategy and because allegations of what a witness would

have stated are largely speculative.' Day v. Quarterman, 566

F.3d 527, 538 (5th Cir. 2009). 'Whether to present certain

testimonial evidence is a matter of trial strategy, and

complaints of uncalled witnesses are generally disfavored.'

Sanders v. United States, 314 Fed. App'x 212, 213 (11th Cir.

2008)."

Walker v. State, 194 So. 3d 253, 291 (Ala. Crim. App. 2015).

Indeed, the evidence against Young was compelling. The State

presented evidence indicating that Young's girlfriend purchased

ammunition on the night of the shootings. Several people who lived

nearby testified that a white pickup truck drove into the area right before

the shooting started; one witness said that the driver, who was big and

heavy, got out and walked toward another car. DNA evidence discovered

on a soda can found in the truck matched Young's DNA. Surveillance

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video showed a white truck come into the complex and a heavy set man 3

exit the driver's side of that truck. Finally, two of Young's accomplices

testified that Young was one of the two men shooting at the two victims.

In a one-paragraph argument in this section of Young's brief, Young

argues that his trial counsel was ineffective for failing to obtain

information from Hammonds's cellular telephone that had been turned

over to police during the investigation. Young's pleadings on this claim

merely consist of the following: "Counsel knew that Hammonds had

identified Freeman as a target and initiated the plan to contact and lure

Freeman to the site where he was killed. Counsel knew that this phone

was obtained by the State yet sought no discovery of its contents." (C.

24.)

In finding that this claim had no merit and was insufficiently

pleaded, the postconviction court stated:

"Young fails to state a valid claim for relief or present a

material issue of fact or law under Rule 32.7(d) of the

Alabama Rules of Criminal Procedure. Information obtained

from Hammonds's phone that he targeted and initiated a plan

to lure Freeman to his death would have been cumulative to

the evidence presented at trial. …

3"Young was 6 feet 4 inches tall and weighed 270 pounds," at the

time of the shootings. Young, ___ So. 3d at ___.

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"Moreover, Young fails to satisfy the specificity and full

factual pleading requirements of Rule 32.3 and 32.6(b) of the

Alabama Rules of Criminal Procedure. Young fails to plead

what specific, relevant, and admissible evidence could have

been obtained from Hammonds's phone. "

(C. 659.)

Young failed to plead what evidence was on Hammonds's cellular

telephone that counsel failed to obtain and failed to plead how he was

prejudiced by the failure to obtain that evidence. Young failed to plead

the full facts to comply with the pleading requirements of Rule 32.6(b),

Ala. R. Crim. P. Therefore, summary dismissal was proper, and Young

is due no relief on this claim.

Young next argues that his trial counsel was ineffective for failing

to develop and present a coherent defense theory. He makes several

different arguments in support of this claim.

First, Young argues that his trial counsel failed to offer an adequate

opening statement. Specifically, Young pleaded that defense counsel's

opening statement was incoherent and that in that statement counsel

told the jury that the defendant had not been present at the shootings

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but had no evidence to support that assertion and did not present any

such evidence at trial.

In summarily dismissing this claim, the postconviction court made

the following pertinent findings:

"It is plain from the face of the record that, as [Ben]

Gardner indicated he would do during his opening, counsel

questioned Hammonds and Bates as to their own involvement

in the murder, motives to lie and point the finger at Young,

plea deals, and ability to identify Young from the Spring

Creek Apartments security footage despite the quality of the

video. And as Young acknowledges in his petition, counsel

introduced the idea that Hammonds and Bates could not be

trusted to give accurate, truthful, and unbiased testimony

during opening statements. Notably, trial counsel returned

to that theory in closing arguments. Moreover, this strategy

served to remind the jury that the prosecutor's passionate

opening statement was not evidence, but rather, what

mattered most was the credibility of the witnesses.

Consequently, it is clear on the face of the record that trial

counsel presented a reasonable defense theory, challenged the

State's theory, and developed the defenses discussed in

opening statements.

"Moreover, Young fails to satisfy the specificity and full

factual pleading requirements of Rules 32.3 and 32.6(b) of the

Alabama Rules of Criminal Procedure. The State's theory of

the case was that Young was present at, and helped commit,

the murder of Freeman. Trial counsel refuted this theory by

asserting Young's innocence: 'He didn't do it. He wasn't

there.' … Young fails to name any witness that counsel could

have called, what questions counsel could have asked that

witness, and if that witness would have been willing to testify.

…

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"Young likewise fails to plead any other reasonable

strategy counsel should have utilized. Three key pieces of

evidence presented by the State against Young were the

testimony of Hammonds, Bates, and their identification of

Young in the security video. To undercut the State's theory

that Young was there and was one of the shooters, it was a

reasonable strategy on counsel's part to undermine the

testimony and credibility of Hammonds and Bates. Young

does not specify any other coherent defense strategy counsel

could have introduced during opening statements."

(C. 661-64.)

Young asserted bare allegations that counsel was deficient in his

opening statement. In fact, his entire pleadings consist of what Young

maintains counsel did wrong. Young failed to plead what a "coherent

defense" or opening would have consisted of or what counsel should have

stated in opening statement. Also, Young did not plead any facts

indicating that there was an alternative defense involving an alibi.

"[The appellant] made bare and conclusory allegations that

counsel failed to put forth a coherent defense theory and to

challenge the State's case during opening and closing

statements, but he failed to allege in his petition what he

believed counsel should have said during opening and closing

statements."

Stanley v. State, 335 So. 3d 1, 43 (Ala. Crim. App. 2020).

Moreover, opening statements are typically matters of trial

strategy. " '[T]here is no constitutional rule that counsel must employ

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any particular rhetorical technique in the opening statement.' Cirincione

v. State, 119 Md. App. 471, 498, 705 A.2d 96, 108 (1998)." Washington v.

State, 95 So. 3d 26, 65 (Ala. Crim. App. 2012).

In regard to Young's claim that his trial counsel failed to keep a

promise made in opening, this Court has stated:

"[N]umerous courts have held that counsel's failure to keep a

promise made in opening statements rarely constitutes

ineffective assistance of counsel. See Hampton v. Leibach, 290

F. Supp. 2d 905, 928 (N.D. Ill. 2001) ('An attorney's failure to

fulfil promises made in opening statement is not often a

successful basis for an ineffective assistance claim. The

decision to change strategy during trial is often forced upon

defense counsel by the vagaries of the courtroom arena.');

United States ex rel. Johnson v. Johnson, 531 F.2d 169, 177

n. 19 (3d Cir. 1976) ('We do not intimate ... that a lawyer of

normal competence could not promise to produce evidence in

this opening statement and then change his mind during the

course of the trial and not produce the promised evidence.').

See also Fayemi v. Ruskin, 966 F.3d 591, 594 (7th Cir. 2020)

('[T]he Supreme Court has never hinted at a per se rule that

defense lawyers must keep all promises made in opening

statement, even if a mid-trial change in circumstances alters

the defense strategy.')."

State v. Lewis, [Ms. CR-20-0372, May 6. 2022] ___ So. 3d ___, ___ (Ala.

Crim. App. 2022).

Based on the cases cited above, we agree with the postconviction

court that there was no material issue of fact or law that would have

entitled Young to relief on this claim. Summary dismissal was proper.

CR-21-0393

See Rule 32.7(d), Ala. R. Crim. P. For these reasons, Young is due no

relief on this claim.

Young next argues that his trial counsel failed to adequately cross-

examine key State witnesses.

" '[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, 740 N.E.2d 32, 39, 251 Ill.

Dec. 202, 209 (2000)."

A.G. v. State, 989 So. 2d 1167, 1173 (Ala. Crim. App. 2007).

To sufficiently plead a claim that counsel was ineffective in cross-

examination of a witness, or lack of cross-examination, a Rule 32

petitioner must plead what "questions would have resulted" in an

adequate cross-examination and further "plead any facts indicating that

counsel's decision not to cross-examine [the witness] was not sound trial

strategy." A.G. v. State, 989 So. 2d at 1173.

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Young first asserts that his trial counsel was ineffective in its cross-

examination of Hammonds because, he says, counsel failed to cross-

examine Hammonds concerning the inconsistencies in his multiple

statements to police, his plans to lie to authorities, and his plan with

Bates to set up Freeman and Blythe. Young further pleaded that counsel

was ineffective for playing Hammonds's videotaped statement to the jury.

When summarily dismissing this claim, the postconviction court

stated:

"The jury certainly heard Hammonds's admission and was

therefore aware that he had lied to police. Moreover, trial

counsel was able to remind the jury of that fact during closing

arguments. Similarly, counsel made sure that the jury saw

Hammonds's videotaped statement, which showed his

demeanor, his pleas for leniency, and his shifting statements.

"….

"Young next claims that counsel were ineffective for

failing to cross-examine Hammonds about his initial plan

with Bates to lie to authorities. …

"Young fails to satisfy the specificity and full factual

pleading requirements of Rules 32.3 and 32.6(b) of the

Alabama Rules of Criminal Procedure. As for the coverup

effort by Bates and Hammonds, Young fails to plead how such

testimony would have made a difference in his trial, especially

considering that Hammonds had already admitted to lying to

the police, he testified that he had lied at Bates's request, and

CR-21-0393

he testified that he and Bates had spoken about lying to

police. Moreover, Young fails to plead how Hammonds's

answers would have saved Young from conviction when they

did not save Hubbard from conviction of capital murder. …

"….

"Young next claims that counsel was ineffective for

failing to ask Hammonds about his plan with Vickery to set

up Freeman and Blythe.

"As addressed above, Young fails to state a valid claim

for relief or present a material issue of fact or law under Rule

32.7(d) of the Alabama Rules of Criminal Procedure.

Testimony from Vickery that Hammonds targeted Blythe and

Freeman would have been cumulative to the testimony

presented at trial. Bates and Hubbard both testified that

Freeman was targeted and marked for death. Further,

Hammonds testified that he contacted Freeman directly as

part of the plan to set him up. …

"Finally, Young claims that introducing Hammonds's

videotaped statement was ineffective. … Young's claim

focuses entirely on the alleged negative impact of trial

counsel's strategic decision to play the videotape of

Hammonds's statement and entirely fails to account for the

positive ways in which trial counsel made use of it. As

discussed above, trial counsel was able to reference Young's

statement during closing arguments to point out Young's

inconsistencies, pleas for leniency, and his consistent

preoccupation with avoiding arrest. Counsel made use of that

evidence to portray Hammonds as a liar who would say

anything to stay out of prison. Considering how counsel

actually used this evidence, Young fails to explain why trial

counsel's decision to play the video was not a matter of sound

trial strategy. Similarly Young fails to plead facts showing

that the benefits of the videotape were outweighed by the

disadvantages of doing so. Thus, Young has failed to plead

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facts that, if true, would establish either Strickland [v.

Washington, 466 U.S. 668 (1984),] prong."

(C. 666-72.)

Young failed to plead what counsel should have asked on cross-

examination and did not plead any facts that suggested that counsel's

actions were not strategic. A.G. v. State, 989 So. 2d at 1173. Summary

dismissal of this claim was proper.

Moreover, the trial record shows that the State questioned

Hammonds about his first statement to police and that Hammonds

admitted that he had lied to police. (Trial R. 836.) The State also elicited

testimony from Hammonds that Bates had asked him to lie. The cross-

examination by defense counsel shows that counsel chose to concentrate

on the fact that, of the individuals involved in the shooting, Hammonds

was the only one that had not been charged with any offense, and that,

he thus had a great motivation to lie at Young's trial. (Trial R. 841.)

Also, trial counsel's decision to play Hammonds's videotaped

statement to the jury was clearly a strategic decision. The jurors could

see for themselves by viewing the tape and viewing Hammonds's trial

testimony that he had lied to police. Thus, there was also no material

CR-21-0393

issue or fact or law that would entitle Young to relief. See Rule 32.7(d),

Ala. R. Crim. P. Accordingly, Young is due no relief on this claim.

Young next argues that his trial counsel was ineffective for failing

to adequately cross-examine Bates. Specifically, he pleaded that trial

counsel should have cross-examined Bates concerning the terms of his

plea agreement with the State and should have questioned him about his

inconsistent statements to police.

In summarily dismissing this claim, the postconviction court stated:

"Young does not plead how counsel could have

discredited Bates with further questioning. Indeed, Young

does not specify a single question counsel should have asked

to discredit Bates, Bates's response, or how Bates's response

would have further discredited him. Moreover, Young fails to

plead how counsel's alleged failures actually prejudiced him,

especially considering that, since the jury watched the same

video, it could determine the quality of the video and give

Bates's identification of Young its due weight. Thus, Young

has failed to plead facts, that, if true, would establish either

Strickland [v. Washington, 466 U.S. 668 (1984),] prong. …

"Young next claims that counsel failed to question Bates

about the inconsistencies between his first and second

statements to law enforcement. Young claims that if counsel

had questioned Bates about his inconsistent statements to

police, the jury would have learned that Bates and

Hammonds were the only two in the gang that knew Freeman

and Blythe, and that Hammonds and Hubbard had

engineered the shooting.

CR-21-0393

"…This testimony would have been cumulative at best,

as Bates had already testified on direct that none of the people

involved in the shooting, other than himself and Hammonds,

knew Freeman. Bates had already testified on direct that

Hammonds and Hubbard engineered the shooting, and that it

was Bates's job to set Freeman up for the shooting. Bates had

likewise already testified on direct that, during his first

meeting with police, he told officers that he was at the

shooting.

"….

"Young next claims that counsel failed to adequately

cross-examine Bates about his plan with Hammonds to

concoct a story to police, which Young claims would have

made Hammonds look just as culpable and devious.

"…Young's claim hinges on the assumption that Bates

would have given a different answer to defense counsel than

he gave on direct. But Young fails to plead facts showing that

Bates would have given a different response. …

"…Young's specific contention that the jury would have

known that Bates's proffer agreement and plea deal were in

evidence without defense counsel's guidance is meritless, as

the jury had the ability to review all pieces of evidence

presented at trial. Though defense counsel did not publish

the deal and agreement to the jury, counsel did introduce

them into evidence, and, thus, they were available to the jury

during deliberations. Moreover, during closing arguments,

defense counsel pointed out to the jury that Bates had lied to

the police, and the jury heard Bates give this testimony on

direct. Young fails to specify any other particular lie counsel

should have chosen to highlight during closing, or why

counsel's decision to address the lies collectively was

unreasonable. Moreover, Young fails to plead how counsel's

strategy actually prejudiced him. Thus, Young has failed to

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plead facts that, if true, would establish either Strickland

prong."

(C. 672-77.)

Young failed to plead what counsel should have asked Bates on

cross-examination; thus, we agree with the postconviction court that

Young failed to plead the full facts necessary to survive summary

dismissal on this claim. See Rule 32.6(b), Ala. R. Crim. P.

Moreover, the trial record shows that before Bates testified a

lengthy hearing was held outside the presence of the jury. Young's

counsel moved to suppress Bates's testimony. The trial court noted that

it had granted Young's motion to suppress all statements that Bates

made on July 7, 2017. On voir dire and outside the presence of the jury,

Young's counsel then questioned Bates about the specific terms of his

plea agreement with the State, and the facts and introduced that

agreement. (Trial R. 712-17.) When the jury was brought back into the

courtroom, the prosecutor questioned Bates extensively about the terms

of his plea agreement with the State, that he had pleaded guilty to

conspiracy to commit murder, that he was currently incarcerated in

Colbert County jail, and that he had an agreement with the State that in

exchange for his truthful testimony the State would recommend a

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sentence of 20 years. (Trial R. 722-24.) The jury was aware of the terms

of the State's plea agreement with Bates; therefore, any further

discussion on that subject would have been repetitive. The record also

shows that the State questioned Bates about his statement to police and

that Bates testified that he lied to police and that he had asked

Hammonds to lie for him. On cross-examination counsel questioned

Bates concerning his ability to identify Young from the video given the

condition of the videotape.

The trial record shows that the issues Young pleaded were not

presented to the jury were, in fact, presented to the jury. Thus, summary

dismissal of this claim was also proper because it failed to present an

issue of fact or law that would entitle Young to relief. See Rule 32.7(d),

Ala. R. Crim. P. Accordingly, Young is due no relief on this claim.

Young next argues that his trial counsel was ineffective for failing

to adequately cross-examine Megan Bryant about Young's drug use on

the day of Freeman's murder.4 Specifically, he asserts that counsel

4InYoung's postconviction petition, this witness's name is spelled

"Megan"; in the trial transcript her name is spelled "Meagan."

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should have questioned Bryant about the fact that Young took drugs

throughout the day and was intoxicated at the time of the shooting.

Young further asserts that counsel should have questioned Bryant about

her losing custody of her child and whether the State had indicated it was

going to help her regain custody.

The postconviction court made the following findings on this claim:

"Young fails to plead how counsel's decision not to

question Bryant on Young's drug use was not a matter of

sound trial strategy. The jury had already heard testimony

that the gang was involved in the drug trade. By refraining

from asking Bryant questions about Young's drug use, the

jury did not hear testimony, offered by Young's own defense

team, that could have tainted their opinion of Young. In the

same vein, had counsel questioned Bryant on her breakup

with Young, Bryant might have testified, as Young

acknowledges, that Young had cheated on her, or, at the very

least appeared to be straying from their relationship. This

information could have painted Young as a dishonest person,

which in turn, could have tainted the jury's opinion of him.

Young fails to plead why no reasonable attorney in counsel's

position would have done the same. …

"Furthermore, Young claims there were indications that

Bryant lost custody of her child, but Young does not provide

any information in support of this contention. Young fails to

plead on what days she lost her child, in what county, and for

what reason Bryant lost custody of her child. Young likewise

fails to plead facts that, if true, would establish that Bryant

could not regain custody of her child without cooperating with

law enforcement and the District Attorney's Office. Thus,

Young fails to plead facts that, if true, would establish either

Strickland [v. Washington, 466 U.S. 668 (1984)] prong."

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(C. 677-80.)

Young failed to plead the full facts in regard to this claim. Young

made a bare assertion that counsel did not question Bryant about

Young's drug use but failed to plead any facts surrounding his supposed

drug use on the day of the shootings. Nor did Young plead any facts

surrounding his assertion that the State was going to assist Bryant with

her child-custody problems.

A review of the trial record shows that defense counsel extensively

cross-examined Bryant about her drug use on the day of the shootings in

a clear effort to discredit her testimony:

"[Defense counsel]: Now, what was it that you were taking?

"[Bryant]: To start, I smoked weed, I took Xanax. In the

evening time, I have a prescription for Remeron, Prednisone,

and Ambien that I would take.

"….

"[Defense counsel]: And just tell us what all you did the rest

of the day. What all drugs did you do that day?

"[Bryant]: I mean, I can't exactly be sure what all drugs I took

that day. I had a very deep addiction and would take anything

that I could get my hands on.

"….

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"[Defense counsel]: That is your testimony that all of the

things that you just testified under oath that you said and did,

heard other folks did, you were high off of drugs when that

happened; is that correct?

"[Bryant]: Yes, sir."

(Trial R. 900-902.)

Counsel's cross-examination of Bryant was both thorough and

extensive. Clearly, counsel chose to focus on the fact that Bryant had

taken many drugs on that day and, thus, that her testimony was suspect.

" ' "[T]he scope of cross-examination is grounded in trial tactics and

strategy, and will rarely constitute ineffective assistance of counsel." ' "

Stanley v. State, 335 So. 3d 1, 37 (Ala. Crim. App. 2020), quoting Bonner

v. State, 308 Ga. App. 827, 828, 709 S.E.2d 358, 360 (2011), quoting in

turn Cooper v. State, 281 Ga. 760, 762, 642 S.E.2d 817, 820 (2007).

For the above reasons, this claim was properly summarily

dismissed, and Young is due no relief.

Young next argues that his trial counsel was ineffective for failing

to adequately cross-examine Shaun Settles because, he says, Settles was

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in possession of critical evidence, a note/letter, indicating that Young was

being used as a scapegoat.5

Settles testified that he was in jail on unrelated charges at the same

time as Capote and Hubbard, that Hubbard was his cell mate, and that

Capote was in a nearby cell. He said that Capote and Hubbard would

pass notes between the two cells and he would hand the notes between

the two men. Settles said that he kept the notes. In one note, Capote

wrote: "Listen gee I killed that nigga but f___ [Young] I'll ask for

immunity if I tell him who killed [Freeman] and tell him [Young] did it."

(C. 36.) Through the contact with Capote and Hubbard and the notes,

Settles led police to the location of the SKS rifle that had been used to

kill Freeman.

In finding that this claim failed to state a material issue of fact or

law that would entitle Young to relief, the postconviction court stated:

"While the letter certainly implicates Capote as one of

Freeman's killers, it does not exonerate Young. Indeed, the

State traveled under an accomplice liability theory for Young,

as it was Capote's SKS bullets that killed Freeman. Just

because Capote admits to killing Freeman in this letter does

not prove that Young was not also there shooting right

alongside Capote.

5InYoung's postconviction petition, this witness's name is spelled

"Shaun"; in the trial transcript his name is spelled "Shawn."

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"…Young claims that if counsel had introduced this

evidence, the jury would have had proof that members of the

conspiracy sought to make Young a scapegoat. On its face,

the letter does not state that Capote would 'frame' Young, nor

is there any indication that Capote would have needed to lie

to place Young at the scene. Young fails to plead, then, how

counsel's failure to introduce the letter, and then cross Settles

on it was not part of a reasonable trial strategy. On direct,

Settles gave limited testimony, briefly explaining that, from

the letters between Capote and Hubbard, he learned the

location of the SKS rifle Capote used to shoot Freeman. This

information was then used by law enforcement to retrieve the

rifle. This testimony is exceedingly narrow, and if anything,

only further implicated Capote, not Young. If counsel had

introduced the letter and crossed Settles on its contents,

counsel could have opened-up Young to damaging testimony

from Settles on cross and on re-direct. Thus, Young fails to

plead facts that, if true, would establish either Strickland [v.

Washington, 466 U.S. 668 (1984),] prong."

(C. 680-82.)

As the postconviction court stated, the note did not establish

Young's innocence. The State maintained throughout the proceedings

that two shooters were involved and that the fatal shot was fired from

the SKS rifle that had been fired by Capote. It is also clear that counsel

was given a copy of this note during discovery. Clearly, counsel made a

strategic decision to not present the note. Accordingly, there was no

material issue of fact or law that would entitle Young to relief under

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Strickland. See Rule 32.7(d), Ala. R. Crim. P. Thus, summary dismissal

of this claim was proper.

Young next argues that his trial counsel was ineffective in its cross-

examination of Investigator Wes Holland because, he says, counsel failed

to adequately question him about the unreliability of the surveillance

video of the parking lot where the shooting occurred.

The postconviction court stated the following:

"Young fails to plead how a reasonable attorney in counsel's

position would have continued to question Investigator [Wes]

Holland about the video's quality despite the already

favorable testimony he gave on re-cross. Indeed, on re-cross,

Investigator Holland testified that he could not tell if the

persons in the video were black or white. Thus, counsel

established the difficulty in making an identification from the

video. Moreover, Young fails to plead how counsel's failure to

further question Investigator Holland actually prejudiced

him. Thus, Young has failed to plead facts that, if true, would

establish either Strickland [v. Washington, 466 U.S. 668

(1984),] prong."

(C. 682-83.)

The trial record shows that the surveillance videotape was played

to the jury. On re-cross, Holland was asked about whether he could tell

from the tape if the driver of the vehicle was black or white. Holland

indicated that he could not. (Trial R. 704.) Clearly, the jury could make

CR-21-0393

its own assessment concerning the reliability of the video as it viewed

that video. There was no material issue of fact or law that would entitle

Young to relief under Strickland. See Rule 32.7(d), Ala. R. Crim. P. Thus,

summary dismissal was proper, and Young is due no relief on this claim.

Young next argues that counsel was ineffective for failing to present

an adequate closing argument. Specifically, he asserts that in closing

argument trial counsel conceded that Young was guilty of capital murder.

The postconviction court found that this issue was not supported by

the record and that Young thus was not entitled to relief. (C. 683.)

Indeed, the trial record shows that during closing argument defense

counsel stated that based on the burden of proof in a civil case the

evidence might point to Young's guilt but that this was a criminal case

and the burden of proof required proof beyond a reasonable doubt. (Trial

R. 1274.) Counsel did not concede Young's guilt in closing argument;

therefore, this claim is not supported by the record. Accordingly, there

was no material issue of fact or law that would entitle Young to relief.

See Rule 32.7(d), Ala. R. Crim. P.

Moreover,

CR-21-0393

" '[c]losing argument is an area where trial strategy is most

evident.' Flemming v. State, 949 S.W.2d 876, 881 (Tex. Ct.

App. 1997). '[S]pecial deference is due to an attorney's closing

argument strategy because it is 'an inherently subjective

task." ' Johnson v. State, 612 So. 2d 1288, 1299 (Ala. Crim.

App. 1992) (quoting Thompson v. Wainwright, 787 F.2d 1447,

1455 (11th Cir. 1986)."

Clark v. State, 196 So. 3d 285, 315 (Ala. Crim. App. 2015). For these

reasons, Young is due no relief on this claim.

Young next argues that his trial counsel was ineffective for not

challenging evidence presented by the State indicating that Young was a

high-ranking gang member involved in the narcotics trade.

The postconviction court stated: "The Court of Criminal Appeals

addressed this issue on direct appeal and found 'no error, much less plain

error, in the circuit court's admission of evidence of Young's gang

affiliation.' Counsel cannot be ineffective for failing to raise a meritless

objection." (C. 684.)

In this Court's opinion on direct appeal, we held that evidence of

Young's gang affiliation and position in the gang was admissible and

relevant to the circumstances surrounding the murder. We stated:

"The evidence at trial showed that Young was a member

of the Almighty Imperial Gangsters. Although Young was a

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top-ranking member of the gang, Hubbard was the leader of

the gang and was above Young in the hierarchy. After

Hubbard's house was burglarized, Hubbard had a 'business

discussion' with the members and told them that he wanted

to find and kill the person who broke into his house. (R. 744.)

He asked the gang for their help. This meeting, which Young

attended, took place in Hubbard's bedroom, where, according

to testimony, Hubbard generally conducted gang-related

business. When Hammonds told Hubbard that Freeman

might be the person who broke into Hubbard's house,

Hubbard and the other members of the gang planned to kill

Freeman. This evidence of Young's gang affiliation -- and

especially his rank in the gang below Hubbard -- was relevant

to show Young's motive for participating in killing Freeman

at Hubbard's behest."

Young, ___ So. 3d at ___. Therefore, the underlying claim that supported

Young's claim of ineffective assistance of counsel had no merit.

" '[B]ecause the underlying claims have no merit, the

fact that [the petitioner's] lawyer did not raise those claims

cannot have resulted in any prejudice to [the petitioner].'

Magwood v. State, 689 So. 2d 959, 974 (Ala. Crim. App. 1996).

See also Commonwealth v. Walker, 613 Pa. 601, 614, 36 A.3d

1, 9 (2011) ('Since all of appellant's underlying claims of trial

counsel's ineffectiveness fail, his claims of appellate counsel's

ineffectiveness are necessarily defeated as well....'); Jackson

v. State, 133 So. 3d 420, 453 (Ala. Crim. App. 2009). Many

other states have applied this same standard. See Walker v.

State, 863 So. 2d 1, 11 (Miss. 2003) ('Because we have held

that the underlying claims are without merit, Walker cannot

show the requisite deficient performance and resulting

prejudice necessary to establish the various claims of

ineffective assistance of counsel.'); People v. Pitsonbarger, 205

Ill. 2d 444, 466, 275 Ill. Dec. 838, 854, 793 N.E.2d 609, 625

(2002) ('Claims of ineffective assistance of counsel at trial and

on direct appeal are evaluated under the standard set forth in

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Strickland [v. Washington,] 466 U.S. at 687, 104 S.Ct. at 2064,

80 L.Ed.2d at 693 [(1984)], which requires the defendant to

demonstrate both deficient performance by counsel and

resulting prejudice. Accordingly, if the underlying claim has

no merit, no prejudice resulted, and petitioner's claims of

ineffective assistance of counsel at trial and on direct appeal

must fail.')."

White v. State, 343 So. 3d 1150, 1174 (Ala. Crim. App. 2019). For these

reasons, Young is due no relief on this claim.

Young next argues that his trial counsel was ineffective for failing

to object to the admission of "unreliable videotape evidence without a

proper foundation." (Young's brief, p. 80.) Specifically, Young pleaded

that counsel should have objected when the videotape made by

surveillance cameras of the parking lot where the shooting occurred was

introduced and admitted into evidence.

The postconviction court found that, on direct appeal, this Court

addressed the underlying issue and found no error, much less plain error;

therefore, there was no material issue or fact or law that would entitle

Young to relief. (C. 690.) In this Court's opinion on direct appeal, we

held that the videotape was admissible under the "silent witness theory"

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because the State had satisfied the requirements of Voudrie v. State, 387

So. 2d 248 (Ala. Crim. App. 1980). See Young, ___ So. 3d at ___. 6

The trial record shows that the State called Mary Sumerel, the

property manager at Spring Creek Apartments, as a witness to establish

the foundation for the admission of the videotape. Sumerel testified that

the apartment complex had video surveillance cameras and that the

cameras were working at the time of the shootings. (Trial R. 530.) She

testified as to when those video cameras were installed, that the video

was stored on a flash drive, and that the video of the shooting had not

been altered in any way while it was in her possession. (Trial R. 534.)

Sumerel's testimony was sufficient to establish a proper foundation for

the admission of the videotape. This Court in Capote specifically found

that the same video was admissible against a claim that there had not

been a proper foundation for its admittance.7 See Capote v. State, 323

So. 3d at 131. Also, the poor quality of the video did not affect its

6See Ex parte Fuller, 620 So. 2d 675 (Ala. 1993), recognizing the

modified Voudrie test.

7Sumerel's testimony in Capote's trial was very similar to her

testimony at Young's trial.

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admissibility but rather its weight. "The quality of the tape was a factor

for the jury's consideration in determining the weight to be given the

evidence, rather than a factor concerning its admissibility." Davis v.

State, 529 So. 2d 1070, 1072 (Ala. Crim. App. 1988).

Because the underlying claim had no merit, summary dismissal

was proper. See White, supra. For these reasons, Young is due no relief

on this claim.

Young next argues that his trial counsel was ineffective for failing

to adequately challenge the admission of evidence of Young's DNA that

had been discovered on a soda can in the white pickup involved in the

shooting. In summarily dismissing this claim, the postconviction court

stated:

"Young claims that trial counsel should have objected to the

DNA evidence on relevance grounds. However, the presence

of Young's DNA inside the vehicle driven by the shooters was

clearly relevant and admissible because it tended to make it

more likely that Young was present at the murder scene,

creating a definite link between Young and the vehicle used

to commit the crime. While Young makes much of the fact

that the DNA evidence cannot pinpoint the time that he was

present in the truck, that is nearly always the case with DNA

evidence and it would not have been grounds for error. …

"….

CR-21-0393

"Moreover, Young fails to satisfy the specificity and full

factual pleading requirements of Rules 32.3 and 32.6(b) of the

Alabama Rules of Criminal Procedure. Young fails to

specifically plead any arguments, or authority, that trial

counsel could have relied on to further challenge the

admissibility of DNA evidence."

(C. 691-93.)

First, this claim was properly dismissed because Young pleaded no

grounds upon which the DNA evidence should have been challenged by

his trial counsel. Young failed to plead the full facts to support this claim.

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

Moreover, Angela Fletcher, a forensic biologist with the Alabama

Department of Forensic Sciences, testified that she conducted DNA tests

on several items that were discovered in the truck involved in the

shootings. The DNA on the soda can, she said, was consistent with

Young's DNA. Also, DNA from a cigarette butt was consistent with

Capote's DNA. On cross-examination, counsel questioned Fletcher about

transferring DNA by coughing or sneezing, made the point that there was

no way to determine how long the DNA had been present, and indicated

that the soda can that contained the DNA could have been moved from

another location and placed in the truck. (Trial R. 1075.) The record

shows that counsel did question the DNA expert. Thus, this claim also

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presented no issue of fact or law that would entitle Young to relief. Thus,

Young is due no relief on this claim.

Young next argues that his trial counsel was ineffective for failing

to object to various items of evidence that, he says, were inadmissible.

" '[E]ffectiveness of counsel does not lend itself to

measurement by picking through the transcript and counting

the places where objections might be made. Effectiveness of

counsel is not measured by whether counsel objected to every

question and moved to strike every answer.' Brooks v. State,

456 So. 2d 1142, 1145 (Ala. Crim. App. 1984). As we recently

stated in Hooks v. State, 21 So. 3d 772 (Ala. Crim. App. 2008):

" ' " 'Decisions concerning whether or when to make

objections at trial are left to the judgment of

counsel.' State v. Suarez, 867 S.W.2d 583, 587 (Mo.

App. 1993). 'Ineffective assistance of counsel is not

to be determined by a post-trial academic

determination that counsel could have

successfully objected to evidence in a given

number of instances.' Id. 'The failure to object to

objectionable evidence does not establish

ineffective assistance of counsel unless the

evidence resulted in a substantial deprivation of

the accused['s] right to a fair trial.' Id. 'Counsel's

failure to object to particular evidence can

constitute mere "trial error" not arising to

constitutional proportions and thus not cognizable

in a post-conviction motion.' Id." '

"Quoting State v. Radley, 904 S.W.2d 520, 525 (Mo. App.

1995)."

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Bush v. State, 92 So. 3d 121, 161 (Ala. Crim. App. 2009).

First, Young argues that his trial counsel failed to object to a

photograph that was admitted in the guilt phase that showed the victim

and his girlfriend because, he says, the photograph constituted

inadmissible victim-impact evidence.

In finding that Young failed to plead sufficient facts to support this

claim, the postconviction court stated:

"Young does not explain how this picture was improper victim

impact evidence. Young fails to plead why no reasonable

attorney would have failed to object to this picture. Moreover,

Young completely fails to plead how counsel's actions

prejudiced him. Indeed, Young makes a conclusory allegation

that counsel's actions were deficient, but does not explain

how, had counsel objected, the outcome of his trial would have

likely been different. Thus, Young fails to plead facts that, if

true, would establish either Strickland [v. Washington, 466

U.S. 668 (1984),] prong."

(C. 694.)

Moreover, "[v]ictim-impact statements typically 'describe the effect

of the crime on the victim and his family.' " Turner v. State, 924 So. 2d

737, 770 (Ala. Crim. App. 2002).

"As for Brooks's claim that his counsel were ineffective for

failing to object to the picture of Brett in a karate uniform and

a picture of Forest and Brett together, as explained above, 'it

is generally agreed that the photograph of the victim of the

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homicide, taken before the alleged murder, is admissible for

the purpose of identification.' Russell [v. State,] 272 So. 3d

[1134] 1165 [(Ala. Crim. App. 2017)] (citations and quotations

omitted). Thus, Brooks's counsel were not ineffective for

failing to object to the admission of those photographs as

victim-impact evidence."

Brooks v. State, 340 So. 3d 410, 465 (Ala. Crim. App. 2020).

"[A]t least one court has noted the rarity of finding a counsel's

performance ineffective for failing to object to photographs:

" 'A competent lawyer familiar with the most

recent pronouncements of this Court on the subject

and familiar with the trial record would not

perceive that admission of the photographs was an

obvious basis for reversal of the appeal. No case is

cited or found where trial counsel was held

ineffective for failing to object to such photographs

or holding that appellate counsel was ineffective

for not asserting error in the admission of such

photographs." '

Thompson v. State, 310 So. 3d 850, 874 (Ala. Crim. App. 2018), quoting

Hall v. State, 16 S.W.3d 582, 587 (Mo. 2000). There was no material issue

or fact or law that would entitle Young to relief. See Rule 32.7(d), Ala. R.

Crim. P. Accordingly, summary dismissal was proper, and Young is due

no relief on this claim.

Young next argues that his trial counsel was ineffective for failing

to object to a hearsay statement made by a police officer that Young was

CR-21-0393

"possibly armed with a rifle" when he was arrested. (Young's brief at p.

83.)

In summarily dismissing this claim, the postconviction court stated:

"This statement was not hearsay as it was not an out of court

statement offered to prove the truth of the matter asserted.

This statement was not offered to prove that Young was

armed with a rifle, but rather, was offered to inform the jury

of the officer's mindset when in pursuit of Young. … Even if

this statement was hearsay, Young fails to plead that it was

not otherwise admissible. Young fails to plead how, if counsel

had objected, there is a reasonable probability the entire

outcome of his case would have been different. Thus, Young

fails to plead facts that, if true, would establish either

Strickland [v. Washington, 466 U.S. 668 (1984)] prong."

(C. 694-95.)

The trial record shows that Officer Derrick Thomas of the Loretto

Police Department testified that on March 4, 2016, he was in pursuit of

Young. The following occurred:

"[Prosecutor]: Can you tell the ladies and gentlemen of the

jury what information you had about the pursuit or the

subject involved in the pursuit at that point?

"[Officer Thomas]: We were monitoring the pursuit coming

into Lauderdale County. Our radios allow us to monitor the

Lauderdale County Sheriff's Department. From that, we

learned that it was a silver Ford car. When it was apparent

that it was coming into Lawrence County, their dispatch

contacted ours and they relayed to us that Mr. Young was

wanted for a homicide in Tuscumbia and was possibly armed

with a rifle."

CR-21-0393

(Trial R. 960-61.)

Clearly, the above evidence was introduced to show the

circumstances surrounding Young's arrest and was not hearsay.

" ' "Hearsay" is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.' Rule

801(c), Ala. R. Evid. However, ' "[a] statement offered for some

other purpose other than to prove the truth of its factual

assertion is not hearsay." ' Montgomery v. State, 781 So. 2d

1007, 1019 (Ala. Crim. App. 2000) (quoting Thomas v. State,

408 So. 2d 562, 564 (Ala. Crim. App. 1981))."

Capote v. State, 323 So. 3d 104, 127 (Ala. Crim. App. 2020).

Accordingly, any objection that this evidence was hearsay would

have been overruled. "Because the substantive claim underlying the

claim of ineffective assistance of counsel has no merit, counsel could not

be ineffective for failing to raise this issue." Lee v. State, 44 So. 3d 1145,

1173 (Ala. Crim. App. 2009). Summary dismissal was proper, and Young

is due no relief on this claim.

Young next argues that his trial counsel was ineffective for failing

to object to testimony from Officer Steven Benson concerning the

apprehension of Young's codefendants, Capote and Hubbard, at a traffic

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stop. Young's entire argument on this issue in brief consists of the

following statement: "As Mr. Young also pleaded, counsel also failed to

object to irrelevant and inadmissible testimony from Steven Benson

concerning the apprehension of both Capote and Hubbard in a traffic

stop." (Young's brief at pp. 83-84.)

In finding that Young failed to plead sufficient facts to support this

claim, the postconviction court stated:

"Young makes a conclusory claim that this testimony was not

relevant or admissible, but he fails to explain how. Young

fails to plead how this was not part of a reasonable trial

strategy. The testimony presented no harm to Young as it did

not implicate him in any illegal activity. Rather, the

testimony distanced Young from Capote and Hubbard as

Young was not with the pair when they were arrested.

Moreover, Young completely fails to explain how he was

actually prejudiced."

(C. 696.)

Young failed to plead why the testimony concerning the arrest of

two of his codefendants was irrelevant and inadmissible. Nor did he

plead how he was prejudiced by the officer's testimony. Accordingly,

Young failed to meet his burden of pleading the full facts in regard to this

claim and summary dismissal was proper. Rule 32.6(b), Ala. R. Crim. P.

Accordingly, Young is due no relief on this claim.

CR-21-0393

Young further argues that his trial counsel was ineffective for

failing to object to the introduction of 34 autopsy photographs of the

victim because, he says, the photographs were prejudicial.

The postconviction court found that this claim was without merit

because this Court, on direct appeal, addressed the admissibility of the

autopsy photographs and held that the photographs were admissible. (C.

697.) On direct appeal, we stated:

"Although unpleasant to view, the autopsy photographs were

relevant and admissible to show the location and the extent

of the wounds to Freeman's body. The State had the burden

of proving beyond a reasonable doubt that Young intended to

kill Freeman 'by or through the use of a deadly weapon while

the victim is in a vehicle.' § 13A-5-40(17), Ala. Code 1975.

Among other things, the photographs showed the number and

the location of the gunshot wounds to Freeman's body. Thus,

the photographs were relevant to show Young's intent that

Freeman be killed and to show that Freeman was seated in

his vehicle when he was shot. We also note that the

photographs of the injured vital organs showed 'only so much

of the surrounding dissected body area' as was 'reasonably

necessary to furnish visual aid to the jury.' See McKee v.

State, 33 Ala. App. 171, 177, 31 So. 2d 656, 661 (1947). For

these reasons, we find no error, much less plain error, in the

admission of the autopsy photographs."

Young, ___ So. 3d at ___.

CR-21-0393

When addressing the admission of the same photographs in the

trial of one of Young's codefendants, this Court further stated:

"This Court has thoroughly reviewed all the autopsy

photographs. As Capote contends, photographs that depict

distortions of the subject matter, such as massive mutilation

or extreme magnification, are objectionable. See Malone v.

State, 536 So. 2d 123 (Ala. Crim. App. 1988). Nonetheless,

photographs that accurately depict the nature of a victim's

wounds are admissible even if they are gruesome or

cumulative. Acklin v. State, 790 So. 2d 975 (Ala. Crim. App.

2000). The autopsy photographs were relevant and

admissible to show the extent of the wounds to Freeman's

body. Each photograph was identified and explained to the

jury. Although they are certainly unpleasant to view, they are

not unduly gruesome, and this Court concludes that their

prejudicial effect did not substantially outweigh their

probative value. Therefore, this Court finds no error, much

less plain error, in the admission of the autopsy photographs.

Accordingly, Capote is not entitled to any relief on this claim."

Capote v. State, 323 So. 3d at 126-27.

Counsel cannot be ineffective for failing to raise an issue that has

no merit. Lee v. State, 44 So. 3d at 1173.

Moreover,

"At least one court has noted the rarity of finding a counsel's

performance ineffective for failing to object to photographs:

" 'A competent lawyer familiar with the most

recent pronouncements of this Court on the subject

and familiar with the trial record would not

perceive that admission of the photographs was an

obvious basis for reversal of the appeal. No case is

CR-21-0393

cited or found where trial counsel was held

ineffective for failing to object to such photographs

or holding that appellate counsel was ineffective

for not asserting error in the admission of such

photographs.' "

Thompson v. State, 310 So. 3d 850, 874 (Ala. Crim. App. 2018), quoting,

in part Hall v. State, 16 S.W.3d 582, 587 (Mo. 2000). For these reasons,

Young was due no relief on this claim and summary dismissal was

proper.

Young next argues that his trial counsel was ineffective for failing

to conduct any meaningful voir dire relevant to the unique issues

presented by a death-penalty case.

In finding that Young failed to plead the full facts concerning this

claim, the postconviction court stated:

"Young claims that counsel asked 'basic' questions, but he

fails to plead what questions counsel asked that were

problematic. Young likewise fails to specifically plead what

questions counsel should have asked. Finally, Young

completely fails to plead how counsel's alleged failure actually

prejudiced him, considering the State's own questions

concerning the death penalty and the juror's answers. Thus,

Young fails to plead facts that, if true, would establish either

Strickland [v. Washington, 466 U.S. 668 (1984),] prong."

(C. 697-98.)

CR-21-0393

As the postconviction court stated, Young failed to plead what

questions counsel should have asked during voir dire that would have

constituted more than "basic" questions. Also, Young failed to plead how

he was prejudiced by counsel's actions during voir dire. Therefore, the

full facts concerning this claim were not pleaded. Rule 32.6(b), Ala. R.

Crim. P.

Moreover, the trial record shows that the prospective jurors were

death-qualified by the circuit court. In fact, this claim was raised on

direct appeal and this Court upheld the death-qualifications questions

posed to the prospective jurors. Young, ___ So. 3d at ___. In regard to

voir dire examination, this Court has stated:

" 'Generally, "[a]n attorney's actions during voir

dire are considered to be matters of trial strategy,"

which "cannot be the basis" of an ineffective

assistance claim "unless counsel's decision is ... so

ill chosen that it permeates the entire trial with

obvious unfairness." '

"Neill v. Gibson, 263 F.3d 1184, 1193 (10th Cir.2001) (quoting

Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997)).

'Counsel, like the trial court, is granted "particular deference"

when conducting voir dire.' Keith v. Mitchell, 455 F.3d 662,

676 (6th Cir. 2006)."

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Washington v. State, 95 So. 3d 26, 64 (Ala. Crim. App. 2012). For these

reasons, summary dismissal of this claim was proper, and Young is due

no relief on this claim.

Young argues that two of his trial attorneys suffered from a conflict

of interest because, he says, his attorney Ben Gardner represented Shaun

Settles's girlfriend, Robyn Green, on an unrelated charge and another of

his attorneys, Nathan Johnson, had previously represented Settles.

Young also pleaded that his attorneys shared information with

Hubbard's investigator.

This portion of Young's petition is confusing and sparse. Young

pleaded that Shaun Settles testified in exchange for a lenient sentence in

an unrelated case and for a more lenient sentence for Green in that same

unrelated case. He further pleaded that Gardner had represented

Settles's girlfriend and that at one point Johnson had represented

Settles. Green did not testify at Young's trial.

In summarily dismissing this claim, the postconviction court stated:

"Young fails to satisfy the specificity and full factual

pleading requirements of Rule 32.3 and 32.6(b) of the

Alabama Rules of Criminal Procedure. To establish a conflict-

of-interest claim, a petition 'must establish that an actual

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conflict of interest adversely affected his lawyer's

performance …. Thus, the mere possibility of a conflict is not

enough to upset a conviction; the [petitioner] must identify an

actual conflict that impeded his lawyer's representation.' …

Young has failed to do this. It is not enough to establish an

actual conflict by simply stating that counsel also represented

someone else who was tangentially connected to this case.

Young likewise fails to plead how this 'conflict' impeded his

representation, especially considering counsel's vigorous

cross-examination of Settles. As for Young's claim that

counsel shared information with Hubbard's investigator,

Young fails to plead what information was shared and how

such action, if true, prejudiced him. Indeed, Young does not

plead how the information given to the investigator was used

against him at trial and impacted its outcome. Rather, Young

makes only a conclusory allegation that counsel erred. Thus,

Young's claim as pleaded is insufficient to overcome

Strickland's strong presumption of effective assistance."

(C. 699.)

Young failed to plead the full circumstances surrounding his

attorneys' prior representations. Indeed, no facts concerning those

representations were pleaded in Young's petition. Nor did Young plead

what counsel supposedly shared with Hubbard's investigator.

"Conclusions unsupported by specific facts will not satisfy the

requirements of Rule 32.3 and Rule 32.6(b). The full factual basis must

be included in the petition itself." Hyde v. State, 950 So. 2d at 356.

Moreover, the trial record shows that before Settles testified,

Young's counsel objected and argued that Settles's testimony should be

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excluded because the State attorneys who signed the agreement with

Settles would be called to testify. The trial record further shows that

neither Gardner nor Johnson represented Settles when he signed the

plea agreement. The plea agreement that was entered into evidence

shows that at the time that the plea agreement was signed, Settles's

attorneys were Jeff Austin and Pride Tompkins. (Trial C. 43-49.)

For these reasons, summary dismissal of this claim was proper.

Accordingly, Young is due no relief on this claim.

Young next argues that his trial counsel was ineffective for failing

to object to the State's lack of corroboration of his accomplices' testimony.

The postconviction court noted that this Court, on direct appeal,

addressed the underlying claim and then found that, even if Young had

objected, there was sufficient evidence to corroborate the testimony of his

accomplices. On direct appeal, this Court held that the testimony of

Hammonds and Bates was corroborated. We stated:

"Even without Hammonds's and Bates's testimony of

Young's involvement in the murder of Freeman and the

shooting of Blythe, the State presented sufficient evidence

tending to connect Young with those offenses.

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"The State presented evidence that two days before

Freeman was murdered Hubbard reported a burglary at his

house on Midland Avenue in Muscle Shoals. The responding

officer said that Hubbard was angry about the burglary, and

Young's girlfriend, Meagan, testified that she and others had

to calm down Hubbard. (R. 896.) Meagan testified that two

days later she was at Hubbard's house when Young and

several others went into Hubbard's bedroom. When Young

came out of the bedroom 10-15 minutes later, he went with

Meagan, Capote, and Capote's girlfriend to the Gander

Mountain store in Florence. Young asked Meagan to buy some

ammunition and he told her what kind of ammunition to buy.

Meagan bought a box of 7.62x39mm ammunition from Gander

Mountain at 9:01 p.m. on March 1. After Meagan bought the

ammunition, Young drove everyone back to Hubbard's house.

"Surveillance footage from the Spring Creek

Apartments in Tuscumbia shows a white Dodge four-door

pickup truck arriving at the apartment complex around 10:47

p.m. on March 1. A blue Mustang arrived about 10-11 minutes

later. The time stamps from the surveillance footage showing

Freeman's blue Mustang arriving at the Spring Creek

Apartments corresponded with the time stamps from

Burgner's Facebook Messenger exchange with Freeman in

which Freeman told her that he was 'getting my cash r[ight]

n[ow]' that 'Vonte' owed him.

"[Jodi] Bohn, who lived at the Spring Creek Apartments,

testified that she looked out of her apartment window and saw

two men get out of a white Dodge pickup truck. The man who

got out of the driver's side was 'big and heavy.' The record

shows that Young is 6 feet 4 inches tall and weighed 270

pounds.

"Law-enforcement officers found several shell casings at

the scene. The State produced evidence that the shell casings

found at the scene were 7.62x39mm -- the same type of

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ammunition Young directed Meagan to buy from Gander

Mountain two hours before Freeman was murdered.

"Shortly after midnight, [Dale] Springer [a resident of

the Chateau Orleans apartments] saw a white Dodge pickup

truck park at the Chateau Orleans apartment complex in

Muscle Shoals near Hubbard's house. He saw a silver or gold

four-door car pull up. The driver of the pickup truck talked

with the driver of the car before the car sped away. The two

men who had gotten out of the pickup truck walked away and

left the truck parked at the Chateau Orleans apartment

complex.

"Meagan testified that when she woke up at Hubbard's

house on March 2, Young 'thought it was best' that they leave

Hubbard's house that day. Meagan testified that Young had

in the past driven a white Dodge pickup truck. DNA from a

grape soda can found in the white Dodge pickup truck parked

at the Chateau Orleans apartment complex matched DNA

from a cheek swab taken from Young.

"Three days after Freeman was murdered law-

enforcement officers were watching Hubbard's house when

they saw Young leave Hubbard's house driving a silver car.

When law-enforcement officers tried to stop Young, Young led

several law-enforcement agencies on a chase through

northern Alabama and into Tennessee.

"Based on information Settles provided them, law-

enforcement officers later found an SKS rifle matching the

description of one that Hubbard owned. Forensic scientists

tested the rifle and found that the 7.62x39mm-shell casings

found at the scene, as well as the projectiles recovered from

Freeman's body during the autopsy, were fired from the SKS

rifle.

"The State's evidence, independent of Bates's and

Hammonds's testimony, tended to connect Young to the

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commission of the offenses for which the jury convicted him.

Thus, the State produced sufficient evidence corroborating

Bates's and Hammonds's accomplice testimony."

Young, ___ So. 3d at ___.

Because this Court addressed the underlying claim and concluded

that there was sufficient evidence to corroborate Young's accomplices'

testimony, there was no material issue of fact or law that would entitle

Young to relief. See Rule 32.7(d), Ala. R. Crim. P. Therefore, summary

dismissal was proper. For these reasons, Young is due no relief on this

claim.

Young next argues that his counsel was ineffective for failing to

object to his conviction for shooting into a vehicle when that offense was

part of the capital offense of shooting into an occupied vehicle. The

postconviction court found that this claim was without merit based on

the record. (C. 703.)

The trial record shows that Young was convicted of murder made

capital because it was committed by shooting into an occupied vehicle, of

assault in the first degree, and shooting or discharging-a-firearm into an

occupied vehicle. (Trial C. 344.) However, before sentencing, the State

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moved that the discharging a firearm conviction be set aside because, it

argued, that crime was encompassed in the capital-murder conviction.

(Trial C. 346-47.) The circuit court granted the State's motion. (Trial

C. 348.) Thus, Young could not establish any prejudice in regard to this

claim because the conviction was vacated. This issue presented no

material issue of fact or law that would entitle Young to relief. See Rule

32.7(d), Ala. R. Crim. P. Therefore, Young is due no relief on this claim.

Young next argues that his trial counsel was ineffective for failing

to pursue remedies when a juror indicated his fear of participating as a

juror on Young's case. The pleadings on this claim consist of one

paragraph. (C. 55.)

The postconviction court made the following findings:

"Though trial counsel moved for a mistrial, Young claims that

if trial counsel had made an effort to gather more information

from juror B.M., counsel could have presented a more

'coherent basis' for the motion being granted.

"….

"Young fails to plead what questions counsel should

have asked, what answers juror B.M. would have given, and

how those answers would have supported a motion for

mistrial. … Without the above information, Young cannot

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show that a mistrial was necessary to prevent 'manifest

injustice.'

"… Regardless of counsel's strategy, however, Young

fails to plead how such decision actually prejudiced him. Thus,

Young fails to plead facts that, if true, would overcome

Strickland's strong presumptions. Such 'bare claims' are

insufficient to warrant further proceedings. Rule 32.6(b), Ala.

R. Crim. P."

(C. 703-706.)

The trial record shows that on the morning of the last day of trial,

a matter was brought to the circuit court's attention. The following

occurred:

"THE COURT: Let the record reflect that Juror [B.M.] and

Bailiff Ernest Bechard, both just came in the courtroom.

"It is my understanding -- the Court's understanding that you

noticed some suspicious activity in your neighborhood last

night which made you uneasy and concerned you that there

may be some relation to this case. You appropriately

contacted the sheriff's department, which is absolutely what

you should have done. And it is also the Court's

understanding that the sheriff's office took your call seriously

and investigated and dealt with your concern and your call.

And at this time, I have asked the Sheriff to come in here and

explain to you what was done in response to the conduct.

"….

"[Sheriff Williamson]: I didn't want to talk to you last night

because I didn't want to be unethical or get in the way of these

folks that have worked hard on this case. So what I wanted

to talk to you about was, we checked this guy out, and you did

CR-21-0393

good by getting us a tag number. And what we think that --

we don't think it has anything to do with this case. We think

that it has to do with the break-ins that are going on out there

right now. So I just wanted you to feel at ease so that you

could do your job today."

(Trial R. 1349-51.) The circuit court then asked juror B.M. if the sheriff's

comments had put his mind at ease. B.M. indicated that they did. (Trial

R. 1351-52.) There is no indication that this juror was in fear because

he was serving on Young's jury. This claim was not supported by the

record and was properly summarily dismissed. See Rule 32.7(d), Ala. R.

Crim. P. Accordingly, Young is due no relief on this claim.

Young next argues that his trial counsel was ineffective for failing

to pursue "adequate remedies" when a juror slept through portions of the

trial. The sparse pleadings on this claim consist of one paragraph. (C.

55.)

In summarily dismissing this claim, the postconviction court made

the following findings:

"Young fails to satisfy the specificity and full factual

pleading requirements of Rules 32.3 and 32.6(b) of the

Alabama Rules of Criminal Procedure. Young fails to plead

why remedial measures were needed. Moreover, Young fails

to plead what remedial measures counsel should have taken

and on what grounds those requested remedial measures

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would have been granted. Furthermore, Young fails to plead

why a mistrial was necessary to prevent 'manifest injustice.'

… Young's claim amounts to 'counsel should have done

something' -- but Young does not plead what counsel should

have done. Finally, Young fails to plead how there is a

reasonable possibility that, but-for counsel's failure, the

outcome of his trial would have been different. Such 'bare

claims' are insufficient to warrant further proceedings. Rule

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

(C. 707.)

The record of Young's trial shows that the following occurred:

"[Defense counsel]: For the record, there's been a juror this

morning, he's the gentlemen to your right on the front row.

His eyes have been closed more than open. I wanted to note

that for the record.

"THE COURT: Well, I just want to know, would you like to

take any action or make any motion?

"[Defense counsel]: Not at this time, but after the break after

lunch, we may be doing so."

(Trial R. 1050-51.)

First, Young pleaded that trial counsel should have moved for

"remedial action." However, he failed to plead what he considered

"remedial action." Nor did Young plead the identity of this juror. The

full facts were not pleaded regarding this claim; thus, summary dismissal

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

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Moreover, at least one court has held that not moving to replace a

sleeping juror may be considered a sound strategic decision. The Utah

Court of Appeals in State v. Marquina, 437 P. 3d 628, 638 (Utah App.

2018), stated:

"[W]e must presume Marquina's defense counsel's conduct fell

'within the wide range of reasonable professional assistance.'

[State v.] Calvert, 2017 UT App 212, ¶ 22, 407 P.3d 1098

[(2017)] (quotation simplified). Jury selection and retention

are 'more art than science,' [State v.] Litherland, 2000 UT 76,

¶ 21, 12 P.3d 92 [(2000)], and Marquina's counsel was able to

observe the jurors, including the alternate, over the course of

three days. Everything from the jurors' demeanors to their

reactions to testimony may have played a role in counsel's

decision not to insist on replacing the sleepy juror. He may

have simply preferred the jury he had. Even if this choice

seems 'counterintuitive,' counsel may have reasonably

thought that a sleepy juror would 'overcompensate' and would

be reluctant to convict. See id. ¶ 22 (quotation simplified).

Moreover, counsel's choices are viewed objectively; '[t]he first

prong of the Strickland standard ... requires that a defendant

rebut the strong presumption that under the circumstances,

the challenged action might be considered sound trial

strategy.' Id. ¶ 19 (emphasis added) (quotation simplified). …

Because Marquina has not demonstrated his counsel was

objectively deficient, he has not established ineffective

assistance of counsel."

State v. Marquina, 437 P.3d 628, 638 (Utah App. 2018). For the foregoing

reasons, this claim was properly summarily dismissed. Therefore, Young

is due no relief on this claim.

CR-21-0393

II.

Young next argues that the State violated Brady v. Maryland, 373

U.S. 83 (1963), by failing to disclose exculpatory evidence. Specifically,

he argues that the State failed to disclose the contents of Hammonds's

cellular-telephone records and failed to disclose the plea agreement that

it had with Robyn Green, Shaun Settles's girlfriend.

The postconviction court found that this claim was procedurally

barred because it could have been raised at trial or on appeal but was

not. Rule 32.2(a)(3) and Rule 32.2(a)(5), Ala. R. Crim. P. 8 The court also

found that this claim was not sufficiently pleaded because Young failed

to plead what the contents of Hammonds's cellular telephone would show

and/or whether those contents were favorable to Young's case. He also

failed to plead how the plea agreement with Green was suppressed, given

that Young also pleaded that one of his attorneys, Ben Gardner, signed

Green's plea agreement. (C. 757-59.)

8This Court has frequently held that a Brady claim may be

procedurally barred in a postconviction proceeding. See Madison v.

State, 999 So. 2d 561 (Ala. Crim. App. 2006); Hyde v. State, 950 So. 2d

344 (Ala. Crim. App. 2006); Duncan v. State, 925 So. 2d 245 (Ala. Crim.

App. 2005); Barbour v. State, 903 So. 2d 858 (Ala. Crim. App. 2004).

CR-21-0393

In the postconviction petition, Young pleaded, in part:

"Hammond's phone and contents were critical to impeaching

Hammonds at trial. Hammonds likely used this phone to

coordinate the setup of Freeman and to contact De'Vontae

Bates to concoct a fake story about their involvement in the

case."

(C. 100.) (emphasis added). Young's entire pleadings on this claim are

based on speculation. " 'Speculation is not sufficient to satisfy a Rule 32

petitioner's burden of pleading.' " Peraita v. State, [Ms. CR-17-1025,

August 6, 2021] ___ So. 3d ___, ___ (Ala. Crim. App. 2021), quoting

Mashburn v. State, 148 So. 3d 1094, 1125 (Ala. Crim. App. 2013).

Moreover, "to sufficiently plead a Brady [v. Maryland, 373 U.S. 83

(1963)]; Giglio [v. United States, 405 U.S. 150 (1982)] claim, a petitioner

must allege facts that, if true, would establish that the prosecution

suppressed evidence that was favorable to the defendant and material."

Reynolds v. State, 236 So. 3d 189, 201 (Ala. Crim. App. 2015). Young did

not plead how Green's plea agreement was suppressed. As the

postconviction court stated: "Young affirmatively acknowledges in his

petition that trial counsel [Gardner] was aware of the plea agreement

and had actually signed it. Considering these facts, it is clear on the face

of the petition itself that no Brady suppression occurred." (C. 759.)

CR-21-0393

Thus, summary dismissal of this claim was proper, and Young is due no

relief on this claim.

III.

Young next argues that he was deprived of his right to a fair trial

when juror W.F. failed to disclose during voir dire examination that he

knew Investigator Wes Holland and Officer Stuart Setliff. He further

argues that counsel was ineffective for failing to object when juror B.M.

had contact with the Colbert County Sheriff's Office.

The postconviction court made the following findings on this claim:

"Young claims that W.F. knew Investigator [Wes]

Holland and Officer [Stuart] Setliff but fails to plead how the

three knew each other. Young fails to plead, for instance, if

the three were friends or if the three had casually met. Young

likewise fails to plead that W.F. purposefully withheld this

information. Indeed, if W.F. had met the men briefly a few

years ago, he may not have remembered meeting them.

Moreover, Young claims that a new trial is warranted where

the defendant 'might have been prejudiced,' but Young fails to

plead how he might have been prejudiced. … It is not enough

to plead that W.F. knew these officers -- Young must also

plead how that fact, if true, might have actually prejudiced

him. For these reasons, this claim is summarily dismissed.

"Young next claims that he was deprived of an impartial

jury because of juror B.M.'s contact with the Colbert County

Sheriff's Office.

"This claim fails to satisfy the specificity and full factual

pleading requirements of Rules 32.3and 32.6(b) and it fails to

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state a valid claim for relief or present a material issue of fact

or law under Rule 32.7(d) of the Alabama Rules of Criminal

Procedure. After the guilt-phase verdict, juror B.M. contacted

the Sheriff's Office about suspicious activity on his street that

he was concerned was linked to Young's case. In a colloquy

with the trial court, Sheriff Williamson said:

" 'I didn't want to talk to you last night because I

didn't want to be unethical or get in the way of

these folks that have worked hard on this case. So

what I wanted to talk to you about was, we checked

this guy out, and you did good by getting us a tag

number. And … we don't think it has anything to

do with this case. We think that it has to do with

the break-ins that's going on out there right now.

So I just wanted you to feel at ease that you could

do your job today.'

"(R. 1351.) When the Court asked juror B.M. if 'the Sheriff's

explanation put [his] mind at ease,' B.M. responded, 'correct.'

"Young claims that the trial court improperly disallowed

B.M. from saying anything further, and did not identify the

deputies involved, the license plate number, and Sheriff

Williamson's role. The trial court did not forbid B.M. from

saying anything further, but rather, cautioned juror B.M. on

his words. Young also claims that the trial court's statement

was improper ex parte communication that was not fully or

adequately disclosed to counsel. The claim is meritless on its

face, as the attorneys were in the courtroom for this

discussion. "

(C. 760-62.)

While Young pleaded the name of the juror who, he says, failed to

disclose that he knew two officers, he pleaded no other facts as to how

CR-21-0393

W.F. supposedly knew the two police officers. Young failed to plead the

full facts to support this claim. Rule 32.6(b), Ala. R. Crim. P.

Moreover, as noted above, juror B.M. had no improper contact with

law enforcement. B.M. telephoned the police when there was a

disturbance in his neighborhood late one night during the trial. There is

absolutely nothing that suggests that that disturbance was related to

Young's case. This claim presented no material issue of fact or law that

would support relief. See Rule 32.7(d), Ala. R. Crim. P. Therefore, Young

is due no relief on this claim.

Penalty-Phase Issues

IV.

Young next argues that he was deprived of the effective assistance

of counsel at the penalty phase of his capital-murder trial.

To properly evaluate the claims pleaded by Young, we must

consider the mitigation evidence that his counsel did present during the

penalty-phase hearing. " 'Although petitioner's claim is that his trial

counsel should have done something more, we first look at what the

lawyer did in fact.' " Ray v. State, 80 So. 3d 965, 979 (Ala. Crim. App.

CR-21-0393

2011), quoting Chandler v. United States, 218 F. 3d 1305, 1320 (11th Cir.

2000).

At the penalty phase, defense counsel presented the testimony of

Young's maternal aunt, Treena Sidebottom, and Dr. Carol Walker, a

psychologist who evaluated Young and who had done extensive research

into Young's background and upbringing.

Sidebottom testified at trial that her sister, Debra Louise Syesta, 9

was Young's mother, that her sister ran away when she was 16 years old

because of the abuse in their household, that when Debra was pregnant

with Young she was in jail, that when she gave birth to Young her father

brought Debra and Young back to Florence, that Debra was an addict,

and that Debra was frequently in trouble with law enforcement and was

in and out of jail, and that Debra tried to commit suicide several times

and that in one instance Young found her on the bathroom floor

unresponsive and called for help. (Trial R. 1416.) When asked to

described Young's home life, Sidebottom testified:

"[B]efore Johnny Vandiver was in the picture, [Debra] was in

government assistance and her home was always clean.

[Young] was thriving and doing okay. They were struggling.

9In Young's postconviction proceedings his mother's name is spelled

"Debra"; in the trial transcript her name is spelled "Deborah."

CR-21-0393

They didn't have a whole lot of money, but when I would go

over there things -- things appeared to be okay.

"But when Johnny Vandiver came into the picture,

that's when they got kicked out of the Section 8 or government

assistance, and that's when I started noticing -- they moved

from government assistance and Section 8 house, and then

they moved into another house. And they moved in, and it

was just dirty. And I asked [Debra] if I could help her clean,

and she said no. But basically they just moved in the house

and it was already dirty. But I tried to talk to her about it,

but she didn't want to talk about it. So that's when I started

noticing the house wasn't -- the house was not clean, that

[Young] was sometimes not clean, that [Young] sometimes

didn't have what he needed.

"Sometimes they would ask -- Debbie would ask for

money, although we weren't real sure where the money would

go to. She said they were turning the utilities off, or they

didn't have money to eat or whatever. So what I tried to do in

the alternative was take [Young] out of the house and try to

help him and clean his clothes and let him spend some time

with me sometimes. And I would try to take [Debra] to the

grocery store and let her buy food so that she wouldn't use

that money to buy things. They -- Debbie and Johnny would

do drugs and alcohol, and that's where their money was going.

"….

"My earliest recollection of when [Young] was probably

about three or four years old, and for some reason they had a

Chucky doll -- the Chucky doll like from the movie. And

[Young] was scared to death of that doll, and Johnny would

just terrorize him just relentlessly with that doll. And I got

on to him, and I couldn't understand why someone would

make a child so scared and be so hurtful. I didn't understand.

And not long after that I found out that he was a sex offender

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and that he had done time in prison for sexual -- sexual abuse

of a child."

(Trial R. 1428-32.) She further testified that she had seen Vandiver

verbally abuse Young. (Trial R. 1432.)

Dr. Walker testified that she interviewed Young for over 16 hours

and that she had conducted extensive research into his background and

upbringing by talking to many of his relatives and obtaining many of his

records. She testified that she looked at Young's juvenile-court-

adjudication records and that included partial records of Department of

Human Resources services. She also evaluated jail-incident records from

the Colbert County jail and performed cognitive testing on Young and did

a neurological assessment and an academic assessment on him. She then

reviewed documentation of his stepfather, Johnny Vandiver's status as a

registered sex offender. (Trial R. 1452-53.) She said that she

interviewed Treena Sidebottom, Young's maternal aunt, for 11 hours;

Matt and Nicole Syesta, Young's maternal aunt and uncle, for 2 hours;

Alice Syesta, Young's maternal grandmother, for 2 hours; and Carolyn

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Parrot, William Young's sister, 10 for one hour. (Trial R. 1455.) Dr.

Walker further testified: "I wasn't able to speak with some family

members because they refused to talk with me. They didn't want to be

involved." (Trial R. 1456.) Dr. Walker testified:

"[Dr. Walker]: According to what I was told, [Young] was

diagnosed with ADHD, and his behavior was consistent with

that. He was impulsive. He was hyperactive. And Carolyn

Parrot said he didn't seem like he was fearful of anything, and

that's consistent with the impulsivity of ADHD. Everybody

described him as extremely close to his mother, and even

though she was -- she was abandoning him for all practical

purposes, he loved her dearly. And the other thing that I

learned was that he was bullied while he was in school. It's

not something that he likes to talk about, but he was bullied

because of his living situation and also because of his weight."

(Trial R. 1469-70.) Dr. Walker explained that Young's witnessing of the

violence in his home made him "more likely to be violent." (Trial R. 1472.)

"[Defense counsel]: In the course of your interviews, did you

learn about any other ways that [Young's] mother and

stepfather were negative role models for him?

"[Dr. Walker]: They -- his stepfather stole from the neighbors.

When somebody new would move in, he would either go -- he

would go steal from them. They fought with the neighbors.

They used drugs in front of [Young]. And the most egregious

to me was when [Young] was nine years old, his mother

started smoking marijuana with him."

10Young believed that William Young was his father. Dr. Walker

testified that there was "conflicting information" as to who was Young's

biological father. (Trial R. 1458.)

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(Trial R. 1474-75.)

Her investigation, Dr. Walker said, showed that Young had an

aggressive disorder, a conduct disorder, and ADHD. (Trial R. 1478.) Dr.

Walker further testified that Young told her that when he was a teenager

he used: "marijuana, methamphetamine, ice, cocaine, Suboxone, which

is a drug that started out being used to treat addiction. Opiates and

benzodiazepines or benzos, most people know them as Xanax or Valium."

(Trial R. 1484.) Dr. Walker then explained the effect those drugs could

have on a young person. (Trial R. 1484-90.) She further testified:

"According to what his aunt told me, she estimated that

[Young's] family moved 30 times in ten years. So he didn't

have any kind of a neighbor that might have intervened.

There weren't neighbors who got to know the family well

enough because, number one, they didn't like them because

they were thieves. They never got the chance to intervene.

As I mentioned before, they weren't involved in any kind of

church family. During the time that his mother was with the

Jehovah Witnesses, my understanding was that they did not

socialize with nonmembers. So I don't know if [Young] had

any involvement with the group.

"There was a lack of commitment to school, even though

[Young], as I gave y'all his intelligence level, he was plenty

smart to go to school and to be able to do things. But his

mother didn't even wake him up to go to school or prepare him

for the day. And if you let a kid stay up as late as they want

to at night, they are not going to be able to wake up on their

own in the morning, for the most part.

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"The fact that his mother smoked marijuana with him,

I would say that was very aggrievance to me because it's

giving the sanction to drug abuse to a young child by the most

important person in his life. There was no restriction against

any kind of drug use in the home. They lived in poor areas.

He was exposed to delinquency and violence and associated

with irresponsibility and associated with a delinquency

environment.

"He had no father in the home. No contact with any

paternal role model other than [his stepfather] who was a

registered sex offender who abused his mother, was a drug

dealer and drug addict."

(Trial R. 1497-99.)

Indeed, the sentencing court found the evidence so compelling that

the court made the following statement in its sentencing order:

"The Court heard testimony from [Young's] maternal aunt,

[Treena] Sidebottom and Dr. [Carol] Walker outlining the

horrible family life upon which [Young] was exposed and

brought up in. The Court heard testimony of the poverty and

chaos of his home, that both mother (whom he loved very

much) and his stepfather were often engaged in criminal

activity and were both drug abusers, addicts, and dealers,

that [Young] smoked marijuana with his mother when he was

only 9 years old, and he has continued to use illegal drugs

throughout his life. The testimony regarding [Young's] family

life and upbringing was very sad and compelling testimony."

(Trial C. 359.) The sentencing court found that Young's "family

background" was a mitigating circumstance. (Trial C. 360.)

CR-21-0393

First, Young argues that his trial counsel failed to investigate and

present mitigating evidence that would have supported a sentence of life

imprisonment without the possibility of parole. He makes several

different allegations concerning this claim.

The trial record shows that defense counsel moved for expenses to

hire an investigator and that that motion was granted. (Trial C. 39, 66.)

Counsel also moved for expenses to hire a mitigation specialist and filed

a supplemental motion requesting more funds for that expert. (Trial C.

42, 78, and 241.) The circuit court approved expenses in the amount of

$10,000 for that expert. (Trial C. 272.) Counsel also filed an extensive

motion requesting that the State reveal any possible mitigating

circumstances: Young's criminal history, any information that the

offense was committed while Young was under the influence of any

substance, any information regarding Young's culpability in the offense,

any information that Young acted under extreme duress or under the

domination of another, and numerous other possible mitigating evidence.

(Trial C. 100-104.)

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"Trial counsel is not ineffective for delegating the responsibility of

investigating mitigation evidence to subordinates." Marshall v. State,

182 So. 3d 573, 601 (Ala. Crim. App. 2014).

"Moreover, 'counsel's method of presenting mitigation ...

[is] clearly trial strategy.' Hertz v. State, 941 So.2d 1031,

1044 (Fla. 2006). See also People v. Ratliff, 41 Cal. 3d 675,

697, 224 Cal. Rptr. 705, 715 P.2d 665, 678 (1986) ('[T]he

manner of presenting evidence [is] one of trial tactics properly

vested in counsel.'). '[T]he presentation of mitigating evidence

is a matter of trial strategy.' State v. Keith, 79 Ohio St.3d

514, 530, 684 N.E.2d 47, 63 (1997). 'Matters of trial tactics

and trial strategy are rarely interfered with or second-guessed

on appeal.' Arthur v. State, 711 So. 2d 1031, 1089 (Ala. Crim.

App. 1996), aff'd, 711 So. 2d 1097 (Ala. 1997)."

Clark v. State, 196 So. 3d 285, 315-16 (Ala. Crim. App. 2015).

" 'The inquiry of whether trial counsel failed

to investigate and present mitigating evidence

turns upon various factors, including the

reasonableness of counsel's investigation, the

mitigation evidence that was actually presented,

and the mitigation evidence that could have been

presented.' "

McMillan v. State, 258 So. 3d 1154, 1168 (Ala. Crim. App. 2017), quoting

Commonwealth v. Simpson, 620 Pa. 60, 100, 66 A.3d 253, 277 (2013).

With these principles in mind, we review the claims raised by

Young in this section of his brief to this Court.

CR-21-0393

Young first argues that his trial counsel failed to investigate and

present evidence concerning his mother's mental illness, his mother's

suicide attempts, his mother's inability to take care of him, and the

impact of his upbringing and his mother's suicide attempts on Young's

life. Specifically, Young asserts that counsel should have conducted an

adequate investigation and obtained a copy of his mother's medical

records from Riverbend Center for Mental Health ("Riverbend").

In summarily dismissing this claim, the postconviction court made

the following findings:

"Young claims Debra's Riverbend records were

'essential for any meaningful evidentiary presentation related

to Debra Vandiver's mental health and treatment.' Young

also alleges that those records would have proved that Debra's

illnesses were significant and persuasive.

"…. Once again, Young makes a conclusory claim that

these records were essential when Dr. Walker and

[Sidebottom] gave extensive insight into Debra's mental

health issues. Young similarly fails to explain how the

evidence presented at trial about Debra's mental illness was

not significant and pervasive. [Sidebottom] testified that

Debra cut herself, tried to commit suicide multiple times, and

that several of Debra's attempts resulted in hospitalization.

Dr. Walker likewise testified that Debra was likely bipolar

and made several serious suicide attempts. Moreover, Young

fails to explain how documents covering the same facts would

not have been cumulative.

CR-21-0393

"Young claims these records reveal that Debra was

diagnosed with depressive disorder, obesity, borderline

personality disorder, and was told that she needed to

establish a better home life for Young.

"…. Dr. Walker testified that Debra had depressive

disorder and likely had bipolar disorder. Moreover, Dr.

Walker testified, when speaking of obesity, that Debra was

reported to be between 300-500 pounds. Finally, evidence was

presented that Debra did not provide a good home life for

Young. Additional evidence of the same would have been

cumulative.

"Young claims these records reveal Debra's inability to

keep a job, her Social Security disability benefits, and her lack

of an income.

"… Young fails to explain how documentary evidence

that Debra could not hold a job, received government benefits,

and lacked an income was necessary and not cumulative when

testimony was given to the same effect. Indeed, Dr. Walker

testified that Young lived in poor areas. [Sidebottom] also

testified that Young and Debra lived in government housing.

Dr. Walker testified that Debra did not support herself with a

job 'as there was not an emphasis placed on self-support.

They stole.' Moreover, Dr. Walker testified that Debra and

Young lived off government benefits as she received social

security or social security disability benefits. Failure to

present additional evidence of the same would have been

cumulative."

(C. 727-29.)

In relation to Young's mother's suicide attempts, the postconviction

court stated:

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"[Sidebottom], Debra's sister, testified that Debra cut herself

and was once found unresponsive on the floor after an

apparent suicide attempt. According to [Sidebottom], Debra

had to be taken to the hospital. [Sidebottom] likewise

testified that on other occasions, Debra's suicide attempts

resulted in hospitalization. Dr. Carol Walker, Young's hired

clinical psychologist, also described Debra's suicide attempts

as serious. [Sidebottom] and Dr. Walker both testified that

Debra tried to commit suicide 'many times.' Furthermore, Dr.

Walker testified that Debra died of an intentional overdose.

Thus, counsel knew, as did the jury, that Debra had tried to

commit suicide several times, that her attempts were serious,

and that she had likely died of an overdose, and records of

these events would have been merely cumulative.

"Young claims that Debra's records from Riverbend

would have documented that she attempted suicide when

Young was an infant, four years old, and eight years old, the

last of which he witnessed. According to Young, counsel failed

to elicit testimony from [Sidebottom] about Young's

witnessing of Debra's suicide attempt. …

"Regarding Debra's suicide attempt that Young actually

witnessed, Young fails to satisfy the specificity and full factual

pleading requirements of Rule 32.3 and 32.6(b) and to state a

valid claim for relief or present a material issue of fact or law

under Rule 32.7(d) of the Alabama Rules of Criminal

Procedure. Young claims that the jury did not learn how

severe this attempt was, but Young fails to plead how

knowing this information likely would have changed his

sentence. Furthermore, Young claims that he saw this suicide

attempt, but he does not plead how this impacted his

development."

(C. 713-15.)

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As stated above in the synopsis of the evidence presented at the

penalty phase, a great deal of the mitigating evidence that Young asserts

was not presented concerning Young's mother was, in fact, presented at

sentencing through the testimony of Sidebottom and Dr. Walker.

"Counsel cannot be ineffective for not presenting evidence that counsel

did, in fact, present." Clark v. State, 196 So. 3d 285, 318 (Ala. Crim. App.

2015). " '[A] claim of ineffective assistance of counsel for failing to

investigate and present mitigation evidence will not be sustained where

the jury was aware of most aspects of the mitigation evidence that the

defendant argues should have been presented.' " Walker v. State, 194 So.

3d 253, 288 (Ala. Crim. App. 2015), quoting Frances v. State, 143 So. 3d

340, 356 (Fla. 2014).

" 'A trial court may summarily dismiss a post-

conviction petition [on a claim of ineffective

assistance of counsel] when it is clear upon the face

of the petition itself or the exhibits or material

from prior proceedings that there are no facts upon

which the petitioner could prevail. Robertson v.

State, 669 So. 2d 11 (Miss. 1996). See also Taylor

v. State, 782 So.2d 166, 168 (¶4) (Miss. Ct. App.

2000).'

"Fairley v. State, 812 So. 2d 259, 262 (Miss. Ct. App. 2002). 'A

petitioner's failure to "show how, but for the attorneys' errors,

the results of the proceedings would have been different"

justifies a district court's decision to summarily dismiss the

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ineffective assistance of counsel claim.' Everett v. State, 757

N.W.2d 530, 535 (N.D. 2008) (quoting Hughes v. State, 639

N.W.2d 696, 699 (N.D. 2002)). '[F]ailing to introduce

additional mitigation evidence that is only cumulative of that

already presented does not amount to ineffective assistance.'

Jalowiec v. Bradshaw, 657 F.3d 293, 319 (6th Cir. 2011)

(citing Nields v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007)).

" ' "[I]n order to establish prejudice, the new

evidence that a [postconviction] petitioner

presents must differ in a substantial way -- in

strength and subject matter -- from the evidence

actually presented at sentencing." Hill v. Mitchell,

400 F.3d 308, 319 (6th Cir.), cert. denied, 546 U.S.

1039, 126 S.Ct. 744, 163 L.Ed.2d 582 (2005). In

other cases, we have found prejudice because the

new mitigating evidence is "different from and

much stronger than the evidence presented on

direct appeal," "much more extensive, powerful,

and corroborated," and "sufficiently different and

weighty." Goodwin v. Johnson, 632 F.3d 301, 328,

331 (6th Cir. 2011). We have also based our

assessment on "the volume and compelling nature

of th[e new] evidence." Morales v. Mitchell, 507

F.3d 916, 935 (6th Cir. 2007). If the testimony

"would have added nothing of value," then its

absence was not prejudicial. [Bobby v.] Van Hook,

[558 U.S. 4, 12,] 130 S.Ct. [13,] 19 [ (2009)]. In

short, "cumulative mitigation evidence" will not

suffice. Landrum v. Mitchell, 625 F.3d 905, 930

(6th Cir. 2010), petition for cert. filed (Apr. 4, 2011)

(10-9911).'

"Foust v. Houk, 655 F.3d 524, 539 (6th Cir. 2011).

Stallworth v. State, 171 So. 3d 53, 79-80 (Ala. Crim. App. 2013).

CR-21-0393

" ' "[T]he failure to present additional mitigating

evidence that is merely cumulative of that already presented

does not rise to the level of a constitutional violation." Nields

v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007) (quoting

Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir. 2006)).' Eley v.

Bagley, 604 F.3d 958, 968 (6th Cir. 2010). 'This Court has

previously refused to allow the omission of cumulative

testimony to amount to ineffective assistance of counsel.'

United States v. Harris, 408 F.3d 186, 191 (5th Cir. 2005).

'Although as an afterthought this [defendant's father]

provided a more detailed account with regard to the abuse,

this Court has held that even if alternate witnesses could

provide more detailed testimony, trial counsel is not

ineffective for failing to present cumulative evidence.' Darling

v. State, 966 So. 2d 366, 377 (Fla. 2007)."

Daniel v. State, 86 So. 3d 405, 429-30 (Ala. Crim. App. 2011).

This claim was properly summarily dismissed because there was no

material issue of fact or law that would entitle Young to relief. See Rule

32.7(d), Ala. R. Crim. P.

Furthermore, Young was 28 years of age at the time of the

shootings. Many courts have discussed the effectiveness of presenting

testimony concerning a troubled childhood when the defendant was an

adult when the murder was committed.

" '[T]rial counsel's decision not to investigate and

present evidence regarding Francis's family

background does not amount to deficient

assistance. Under certain circumstances, trial

counsel's decision not to investigate family

childhood background may legitimately be the

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product of a reasoned tactical choice. See Stanley

v. Zant, 697 F.2d 955, 970 (11th Cir. 1983), cert.

denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d

372 (1984). Given the particular circumstances of

this case including, among other things, the fact

that Francis was thirty-one years old when he

murdered Titus Waters, evidence of a deprived

and abusive childhood is entitled to little, if any,

mitigating weight. See Francois v. Wainwright,

763 F.2d 1188, 1191 (11th Cir. 1985).

Consequently, trial counsel cannot be faulted for

expending his limited time and resources on other

vital areas.' "

Washington v. State, 95 So. 3d 26, 44-45 (Ala. Crim. App. 2012), quoting

Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990).

This is not a case where counsel failed to conduct any mitigation

investigation or where counsel failed to present any mitigation. The

mitigation that was presented was compelling as stated by the

sentencing judge. For the forgoing reasons, this claim was correctly

summarily dismissed. Accordingly, Young is due no relief on this claim.

Young next argues that his trial counsel was ineffective because of

the "weak testimony" counsel presented concerning Young's having been

diagnosed with ADHD when he was a child.

CR-21-0393

The postconviction court found that there was no material issue of

fact or law that would entitle Young to relief. In dismissing this claim,

the court stated:

"While Dr. Walker testified that there was no evidence in the

records that she received indicating that Young had received

treatment for ADHD, she testified that she had been told by

family members that Young was taking stimulant medication

for his ADHD. Dr. Walker also testified that Young was given

a conditional diagnosis of disruptive disorder, conduct

disorder, and ADHD, as well as received medication for mood

swings, while at Three Springs treatment facility [when he

was a teenager]. Thus, this information was presented to the

jury, and additional evidence of the same, whether it be

through records or the testimony of [Sidebottom], would have

been cumulative."

(C. 730.)

As the record shows, counsel chose to present evidence of Young's

ADHD through the testimony of Sidebottom and Dr. Walker. Dr.

Walker's testimony was based, in part, on records that she had examined

from Three Springs treatment facility. 11 " '[C]ounsel's method of

presenting mitigation … [is] clearly trial strategy.' Hertz v. State, 941

So. 2d 1031, 1044 (Fla. 2006)." Clark v. State, 196 So. 3d 285, 315 (Ala.

Crim. App. 2015).

11Three Springs was a juvenile treatment facility that housed young

juvenile offenders.

CR-21-0393

"A trial strategy decision may only serve as a basis for

ineffective counsel if the decision is unreasonable. Zink [v.

State], 278 S.W.3d [170] at 176 [(Mo. 2009)]. The choice of one

reasonable trial strategy over another is not ineffective

assistance. Id. '[S]trategic choices made after a thorough

investigation of the law and the facts relevant to plausible

opinions are virtually unchallengeable.' Anderson [v. State],

196 S.W.3d [28] at 33 [(Mo. 2006)] (quoting Strickland, 466

U.S. at 690, 104 S.Ct. 2052)."

McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. 2012). "[A] tactical

decision will not form the basis for an ineffective assistance of counsel

claim unless it was 'so patently unreasonable that no competent attorney

would have chosen it.' " Brown v. State, 288 Ga. 902, 909, 708 S.E.2d 294,

301 (2011). For these reasons, this claim was properly summarily

dismissed, and Young is due no relief on this claim.

Young next argues that his counsel was ineffective for failing to

present testimony concerning Johnny Vandiver's violence and cruelty

toward Young. Specifically, Young argues that counsel should have

presented the testimony of Scott Dishon, Julian Smith, and Joseph

Young concerning Vandiver's treatment of Young.

Young pleaded that Dishon would have testified that he was a

childhood friend of Young's from the age of 10 to 12 and that Young's

CR-21-0393

stepfather was a "psycho" who frequently cursed at Young. Smith would

have testified that he frequently witnessed Young's stepfather yelling at

Young and at Young's mother. Joseph Young would have testified that

he went to visit Young when he was 11 years old and left after "Vandiver

was physically violent with" him. (C. 76.) Young did not plead what

Vandiver did to Joseph Young that caused him to leave.

The postconviction court found that this claim was not sufficiently

pleaded because Young failed to plead that the witnesses were willing

and able to testify at Young's trial. (C. 731-32.)

Moreover, the trial record shows that Sidebottom testified that

Vandiver was physically abusive to her sister, that she had witnessed

him restrain her, that she had witnessed him hit her in the face, that she

had witnessed him grab her by the hair, and that she had witnessed him

verbally abuse her. She further testified that she had also witnessed

Vandiver verbally abuse Young. (Trial R. 1432.) She detailed a specific

instance:

"My earliest recollection of when [Young] was probably

about three or four years old, and for some reason they had a

Chucky doll -- the Chucky doll like from the movie. And

[Young] was scared to death of that doll, and Johnny would

just terrorize him just relentlessly with that doll. And I got

on to him, and I couldn't understand why someone would

CR-21-0393

make a child so scared and be so hurtful. I didn't understand.

And not long after that I found out that he was a sex offender

and that he had done time in prison for sexual -- sexual abuse

of a child."

(Trial R. 1431-32.) Thus, evidence was presented that Vandiver was

verbally abusive and cruel to Young.

"[T]his Court has held that even if alternate witnesses could

provide more detailed testimony, trial counsel is not

ineffective for failing to present cumulative evidence. See

Gudinas v. State, 816 So. 2d 1095, 1106 (Fla. 2002); Sweet v.

State, 810 So. 2d 854, 863-64 (Fla. 2002). Therefore, trial

counsel was not ineffective for failing to call Carlton as a

witness during the penalty phase to present evidence which

was generally presented by others."

Darling v. State, 966 So. 2d 366, 377 (Fla. 2007). Accordingly, there

was no material issue of fact or law that would entitle Young to relief on

this issue, thus, summary dismissal was proper. Young is due no relief

on this claim.

Young next argues that his trial counsel was ineffective for failing

to investigate and present physical records of Johnny Vandiver's sexual-

assault conviction.

In dismissing this claim, the postconviction court stated:

"Young fails to satisfy the specificity and full factual pleading

requirements of Rules 32.3 and 32.6(b) and to state a valid

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claim for relief or present a material issue of fact or law under

Rule 32.7(d) of the Alabama Rules of Criminal Procedure.

Young claims that this information was easily and readily

available, but he fails to explain how the records were easily

available. Young likewise fails to plead facts showing that

these records would have been admissible as relevant.

Introducing the facts about another, unrelated case would

likely have received an objection from the State on relevance

grounds. … Young fails to explain how evidence of Johnny's

sexual abuse against his stepdaughter is at all relevant when

Young does not claim that Johnny also sexually abused him.

Moreover, Young fails to plead why the details of Johnny's

sexual assault case were necessary and not cumulative when

the jury heard multiple times that Johnny had sexually

abused his stepdaughter."

(C. 733-34.)

The trial record shows that on numerous occasions during

Sidebottom's and Dr. Walker's testimony they stated that Vandiver had

a prior sexual-abuse conviction. Trial counsel's decision to present this

through testimony instead of physical records was clearly a strategic

decision. Thus, there was no material issue of fact or law that would

entitle Young to relief on this claim. See Rule 32.7(d), Ala. R. Crim. P.

Accordingly, Young is due no relief on this claim.

CR-21-0393

Young next argues that his counsel failed to investigate and present

evidence of abuse and mental illness in Young's extended family

specifically, that Young's maternal uncle had mental problems.

In dismissing this claim, the postconviction court stated:

"Young failed to plead how, and from where, counsel could

have obtained the private records of a private patient of

Young's non-immediate family. Young likewise fails to

explain how these records would have been admissible and

what witness could have properly laid the foundation for these

records when Patrick and Paul[12] did not testify. Moreover

Young fails to explain why records of Patrick's mental health

were necessary and not cumulative when [Sidebottom]

testified to Patrick's mental health issues, including that he

was put in a mental health facility. …

"Regarding the abuse of Paul, Dr. Walker testified that

there were many members of Young's family that refused to

talk to her. Young fails to plead that Matthew was not one of

those people. Young likewise fails to plead that Matthew was

available and willing to testify in this case when Matthew has

been completely absent from Young's life. Furthermore,

Young fails to explain why records of Paul's abuse were

necessary when the jury heard about Alice's mental health

issues and abuse of her family."

(C. 734-36.)

The trial record shows that defense counsel asked Sidebottom if any

of her siblings had mental problems. (Trial R. 1423.) She testified that

12Paul is Sidebottom's oldest brother; Patrick is another brother.

CR-21-0393

her oldest brother, Paul, was abusive and violent and that another

brother, Patrick, had been put in a mental-health facility in Tarrant

County in Fort Worth. Patrick had also tried to commit suicide at that

facility and when he was sent home, he again tried to commit suicide by

overdosing on Xanax. (Trial R. 1425.) Testimony was presented about

Young's extended family's mental health. Thus, summary dismissal of

this claim was proper; therefore, Young was due no relief on this claim.

Young next argues that counsel was ineffective for failing to

investigate and present evidence indicating that Young's grandfather

was supportive of his mother and that Young lost his mother and

grandfather within weeks of each other.

In dismissing this claim, the postconviction court stated:

"Dr. Walker testified that Paul [Young's grandfather] was

supportive of Debra. Young fails to plead how it is not obvious

from this testimony that by supporting Debra, Paul also

supported Young. Young likewise fails to plead who would

have, or could have, testified that Paul encouraged Young to

participate in the family.

"Young claims that [Sidebottom] could have testified

about his relationship with Paul and about the fact that Paul

died within weeks of his mother's suicide and within days of

Young's release from prison. However, Young fails to explain

the significance of this event. Importantly, Young does not

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claim that the timing of Paul's death, or that Paul's death in

general, had a negative impact on his psychological well-

being. Young likewise fails to plead how [Sidebottom] would

have testified that once Young was released from prison, he

had no support from family, when [Sidebottom] herself

testified that she loves Young. Such 'bare claims' are

insufficient to warrant further proceedings."

(C. 735-37.)

Young pleaded that counsel should have presented evidence

indicating that Young's grandfather was supportive of him but failed to

plead the identity of any individual who could have provided such

testimony. Nor did Young plead how the death of Young's mother and

grandfather affected him. The full facts were not pleaded in regard to

this claim. See Rule 32.7(d), Ala. R. Crim. P.

Moreover, the record shows that testimony was presented that

Young's grandfather was supportive of Young's mother. Sidebottom

testified that when Debra had Young, her father moved her and the baby

back into their house in Florence. (Trial R. 1415.) It was clear from

Sidebottom's testimony that her father had been helpful to his children

and that her mother was the one that was abusive. Dr. Walker testified

that "Paul Syesta was supportive of Debbie. …" (Trial R. 1459.) Thus,

summary dismissal was proper, and Young is due no relief on this claim.

CR-21-0393

Young next argues that his trial counsel was ineffective for failing

to present an expert on trauma and its impact on child development.

Young pleaded that Dr. Paul O'Leary, a psychiatrist, was willing to

testify concerning the effect that Young's traumatic childhood had on his

development. (C. 81.)

In finding that this claim was meritless, the postconviction court

made the following findings of fact:

"Young does not explain how Dr. [Carol] Walker, the

defense's expert, was not qualified to testify on such sub

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