Appendix — Thompson v. Alabama

Supreme Court brief1992

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

MICHAEL EUGENE THOMPSON, Petitioner

STATE OF ALABAMA, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

APPENDIX TO PET TION FOR WRIT OF CERTIORARI

STEPHEN T. WAIMEY*

H. DAVID HENRY

VINCENT J. DAVITT

VIKEN PAKRADOUNI

LeBOEUF, LAMB, LEIBY & MacRAE

725 South Figueroa Street

Citicorp Center, 36th Floor

Los Angeles, California 90017

(213) 955-7300

*Counsel of Record for Petitioner

Michael Eugene Thompson

STEPHEN T. WAIMEY*

H. DAVID HENRY

VINCENT J. DAVITT

VIKEN PAKRADOUNI

LeBOEUF, LAMB, LEIBY & MacRAF

725 South Figueroa Street

-iticorp Center, 36th Floor

Los Angeles, California 9001

>? > Oog&.7IINN

&ivj 4d 4VV

*Counsel of Record for

Michael Eugene Thompson

TNHOERy nm ADDEN T Y

LNUEA TO APPENDIX

i [Thompson v. State, No. 1900927

ea.

Ct. June 21, 1991), Order Denying

Petition for Writ of Certiorarj

fhompson v. State, No. CR ¥=-383, Ala.

Ct. Crim. Apps. January 18, 1991), pit

enying Post-Conviction Xkelief

Thompson v. State, No. CC-85-06

(Blount County Cir. ct. February 1]

1990), Opinion and Order Denying Post

Conviction Relief.

4. Thompson v. State, No. 35-1004

Ct. February 20, 1987) Order Affirm J

)

Judgment of the Court of Crimina]

29. Thompson v. State, 6 Div 99 (Ala t

Crim. Apps. May 13, 1986) Jpinion

Affirming Judgment of Circuit Durt

6. state v. Thompson, No 85-06! Blount

County Cir. ct June 11, 1985) Sentencing

state v. Thompson, No. CC 85-o¢ Blount

County Cir. Ct June i] 198°

Judgment.....

The Fifth, Sixth and Fourteenth

Amendments to the United States

Constitution.

9. Code of Alabama, 1975. S§ 15-12-:

15-12-22....

DOCUMENT NUMBER 1

THE STATE OF ALABAMA ---- JUDICIAL DEPARTMENT’

[IN THE SUPREME COURT OF ALABAMA

ue)

Michael Eugene

—

Caan

PETITION FOR WRIT OF CERTIORARI TO THE

RIMINAL APPEALS

Re: Michael Eugene Thompson v. State

ijCcr ( oO 4 m3 = on Qc , .

CCA S9-S 33 (Blount -C-8 I~ UeU. C2

[he above cause having been duly

Suomitted, IT IS CONSIDERED AND ORDERED that

tne petition for writ of certiorari

ADAMS, J. - Hornsby -J

Steagall and Ingram, JJ, oncur

DOCUMENT NUMBER 2

Ce eatin delim ot ee

Michael Eugene THOMPSON

| Vv. |

STATE.

CR 89-383.

Court of Criminal Appeals of Alabama.

: Jan. 18, 1993: oe

Rehéaring Denied March 1, 1991.

‘certiorari Denied Sane 21, 1991

‘Alabama Supreme Court 1900927.

Stephen T. Waimey of ‘LeBoeuf, ‘Lamb,

Leiby & MacRae, Los Angeles, Cal., for

appellant.

| bon Siegelman, Atty. Gen., and Sandra

J. Stewart, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Michael Eugene Thompson appeals ‘tros

the denial of his petition seeking

post-conviction, relief under Rule 20, Alabama |

Temporary Rules of Criminal Procedure. , The |

petition was denied by the trial court after

a full’ eviden lary Nearing, during which the

appellant was \represented by counsel.

‘The appellant Was convicted of the

capital sainae: We Maisie Gray: Maisie Gray

was working in the Majik Mart store in

Attalla, Alabama, on December 10, 1984. The

appellant robbed and abducted Gray at

gunpoint. He then forced her into a well and

_ Shot ‘into the well several times. The cause

of death was determined to be gunshot wounds.

“This court affirmed the conviction in

Thompson v. State, 503 S$o.2d 871

(Ala. Crim, App. 1986) . This court's opinion

was affirmed in Ex parte Tnompson, 503 So.2d

887 (Ala.1987), cert. denied, Thompson v.

Alabama, 484 U.S. 872, 108 §&.Ct. 204, 98

L.Ed.2da 155 (1987). Thompson then filed this

petition seeking post-conviction relief in

| the Blount County Circuit Court. He raised

eighteen issues in the petition, some of

which contain multiple subparts. After an

evidentiary hearing, the trial court made

jexpress written findings of fact and

Conclusions of law. These findings and

conclusions are herein adopted as Appendix A

to this opinion and approved in this opinion.

3 The appellant asserted severa]~issues

‘in the post-conviction proceeding“which were

fully covered or dealt with, in whole or in

part, in this court's original opinion

reported in Thompson v. State, 503 So.2d 871

(Ala.Crim.App.1986) .'

‘These issues, as they appear in

appellant's brief, include:

"I, PETITIONER WAS DENIED A FAIR

TRIAL AS A RESULT OF THE

INTRODUCTION. INTO EVIDENCE OF

ALLEGED CONFESSIONS THAT, IF

GIVEN AT ALL, WERE GIVEN

INVOLUNTARILY, AND WITHOUT THE

PRESENCE OF COUNSEL, IN

VIOLATION OF THE FIFTH, SIXTH

AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND |

OF THE STATE CONSTITUTION AND

LAWS OF ALABAMA

"A. The alleged confession was

/ not proven to be voluntary,

and thus should not have

been admitted into

evidence.

| a

"B. The alleged confession was

the result of coercive

tactics koninnee to

overbear the will of

Petitioner, and thus was

involuntary and should not

have been admitted into

evidence.

"II. PETITIONER'S CONVICTION WAS

OBTAINED BY THE UNCONSTITUTIONAL

FAILURE OF THE PROSECUTION TO

DISCLOSE TO THE PETITIONER

EVIDENCE FAVORABLE TO THE

PETITIONER

"A.- The prosecution's failure

to produce Shirley

Franklin's criminal record

prevented defense counsel

from impeaching Shirley

Franklin and establishing

her lack of veracity.

"XI. THE COURT IMPROPERLY CONSIDERED

INADMISSIBLE EVIDENCE AT THE

PENALTY STAGE IN VIOLATION OF.

MICHAEL THOMPSON'S RIGHTS

"XII.THE COURT IMPROPERLY FAILED TO

WEIGH THE MITIGATING FACTORS OF

MICHAEL THOMPSON'S CHRONIC

ALCOHOL AND DRUG ABUSE AND

EXTREME MENTAL DISTURBANCE AT

THE PENALTY PHASE

7 oy

"XIV. THE TRIAL COURT'S FAILURE TO

CONSIDER MICHAEL THOMPSON'S LACK

We completely adhere to the views

heretofore expressed in the opinion of this

court on /the original appeal. Several of the

appellant's Claims, either. an whole or in

part, are procedurally barred from review

because | (1) they could have been raised at

trial of on direct appeal but were not’ or

OF SIGNIFICANT PRIOR CRIMINAL

ACTIVITY AS A MITIGATING

CIRCUMSTANCE WAS A VIOLATION OF

ALABAMA LA‘ AND DEPRIVED MICHAEL

THOMPSON OF HIS CONSTITUTIONAL

RIGHTS"

These claims, as they appear in

appellant's brief, include:

eT.

PETITIONER WAS DENIED A FAIR TRIAL AS

A RESULT OF THE INTRODUCTION INTO

EVIDENCE OF ALLEGED CONFESSIONS THAT,

IF GIVEN AT ALL, WERE GIVEN

INVOLUNTARILY, AND WITHOUT PRESENCE

OF COUNSEL, IN VIOLATION OF THE

FIFTH, SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES .

CONSTITUTION AND OF THE STATE

CONSTITUTION AND LAWS OF ALABAMA

"C. The alleged confession was

obtained in violation of

Petitioner's rights under the

Fifth and Sixth Amendments to

the United States Constitution,

and thus should not have been

admitted into evidence. *

AHA nd ened ss

"D. The testimony given by

Petitioner at trial should not

have been admitted because it

was given only as a direct

result of the coercive and

improper tactics used to extract

the prior involuntary

confession, and thus was

‘tainted fruit of the poisonous

tree. ' €

“III.PETITIONER WAS DEPRIVED OF HIS RIGHT

“VI.

TO A FAIR TRIAL BY THE CONFLICT OF

INTEREST RESULTING FROM HIS

COUNSEL'S PRIOR REPRESENTATION OF

THE KILLER OF THE PETITIONER'S

FATHER

THE VICTIM'S DAUGHTER'S PARTICIPATION

IN THE PROSECUTION OF PETITIONER WAS

HIGHLY IMPROPER AND DENIED PETITIONER

A FAIR TRIAL AND DUE PROCESS

"VII.THE PROSECUTOR'S MISCONDUCT AND

ARGUMENTS AT TRIAL AND AT

PETITIONER'S SENTENCING HEARING

BEFORE THE JURY AND BEFORE THE JUDGE

WERE IMPROPER AND VIOLATED RIGHTS

GUARANTEED BY THE FIFTH, SIXTH,

EIGHTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION AND

THE STATE CONSTITUTION AND THE LAWS

OF ALABAMA

"VIII.THE COURT'S FAILURE TO GIVE A JURY

INSTRUCTION ON A LESSER INCLUDED

OFFENSE WHERE THE EVIDENCE WOULD HAVE

SUPPORTED SUCH A VERD DEPRIVED

PETITIONER OF A FUND ALLY FAIR

(2) they were raised at trial but not on

appeal.’ Other of the appellant's claims are

TRIAL IN VIOLATION OF HIS RIGHTS

UNDER THE FIFTH, SIXTH, EIGHTH: AND

FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND LAWS OF

ALABAMA

“IX. THE COURT'S INSTRUCTIONS TO THE JURY

VIOLATED PETITIONER'S CONSTITUTIONAL

RIGHT TO A FAIR TRIAL

"X. THE COURT IMPROPERLY INSTRUCTED THE

JURY THAT IT'S VERDICT AT THE PENALTY

STAGE WAS MERELY ADVISORY, THEREBY

DENYING MICHAEL THOMPSON A FAIR

TRIAL, DUE PROCESS AND OTHER

CONSTITUTIONAL RIGHTS

"XV. THE ALABAMA DEATH PENALTY STATUTE'S

“ESPECIALLY HEINOUS, ATROCIOUS AND

CRUEL" AGGRAVATING CIRCUMSTANCE IS

UNCONSTITUTIONALLY VAGUE ON ITS FACE,

AS INTERPRETED BY ALABAMA COURTS AND

AS APPLIED TO MICHAEL THOMPSON

"XVI.CERTAIN OTHER ASPECTS OF THE ALABAMA

DEATH PENALTY SCHEME, AS INTERPRETED

BY ALABAMA COURTS, VIOLATE THE UNITED

STATES AND ALABAMA CONSTITUTIONS"

* These claims, as they appear in

appellant's brief, include:

"XIII.THE PRE-TRIAL PUBLICITY GENERATED’

PREJUDICED THE COMMUNITY AND THUS THE

JURY AGAINST MICHAEL THOMPSON.

THEREFORE, THE COURT'S REFUSAL TO

CHANGE VENUE, ALLOW INDIVIDUALIZED

VOIR DIRE OR EXCLUDE JURORS WHO HAD

procedurally barred from review because-they

were not raised in his Rule 20 petition.*

BEEN SUBJECTED TO SUCH PUBLICITY WAS

CONSTITUTIONALLY IMPROPER

"A. The pretrial publicity generated

by the alleged crime mandated a

change of venue.

"B. The trial court improperly

refused to allow Michael

Thompson's counsel to conduct

individualized voir dire of the

jury panel regarding their

exposure to pes zudiesss

material.

"C. The trial court's refusal to

dismiss those prospective jurors

who had indicated that they had

been exposed to pretrial

publicity was improper and a

violation of Michael Thompson’s

right to a fair trial.

"XVII.THE TRIAL COURT IMPROPERLY REFUSED

TO ALLOW INDIVIDUAL, SEQUESTERED VOIR

DIRE OF PROSPECTIVE JURORS WITH |

RESPECT TO THEIR BELIEFS ABOUT, THE -

DEATH PENALTY |

"XVIII.THE TRIAL COURT'S EXCUSAL OF

CERTAIN PROSPECTIVE JURORS. WAS

IMPROPER AND VIOLATED MICHAEL

THOMPSON'S RIGHT TO A FAIR TRIAL"

* These claims, as they appear in

appellant's brief, include:

"VY. PETITIONER'S CONVICTION WAS OBTAINED

BY THE UNCONSTITUTIONAL FAILURE OF

ae phe nh in ots

See @.g+, Jackson v, State, 501 So.2d 542

(Ala.Crim.App.1986), cert. denied, 485 U.S.

1010, 107 S.Ct. 3242, 97 L.Ed. 2d 746 (1987);

Boatwright v. State, 494 So.2d 929

(Ala.Crim.App.1986). The appellant

apparently argues that this court should

apply the “plain error” rule in order to

review those claims that are procedurally

barred because the claims are barred because

his counsel was constitutionally ineffective.

THE PROSECUTION TO DISCLOSE TO THE

PETITIONER EVIDENCE FAVORABLE TO THE

PETITIONER

"D. The prosecution's failure to.

disclose Michael Thompson's

refusal to waive his Fifth and.

Sixth Amendment rights creates a

reasonable doubt as to Michael

Thompson's guilt or sentence;

"XI. THE COURT IMPROPERLY CONSIDERED

INADMISSIBLE EVIDENCE AT THE PENALTY

STAGE IN VIOLATION OF MICHAEL

THOMPSON'S RIGHTS [to the extent he

argues that the trial court

considered statements other than in

the pre-sentence report regarding

other crimes committed by the ;

defendant)"

, 4

We need not address is argument, because

counsel was not ineffective.

In addition the claims that are

srédeduceity barred and the claim of

ineffective assistance of counsel at. both the

trial and appeal stages, the appellant also

claims that the State /|failed to provide him

with exculpatory e Lddnce.

We have carefullly considered the

appellant's assertions\|with reference to his

representation by counsel. We conclude that

he failed to show either\inadequate or

ineffective representation ey counsel at

trial or on original appeal. The appellant

failed to satisfy either prong of the test

set forth in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d-~ 674

(1984). See also Baldwin v. State, 539 So.2d

1103 (Ala.Crim.App. 1988) .

A review of the record leads us to

» conclude that the circuit court's findings of

fact and conclusions of law are correct and

axis fuiks supported by the record. Wa’ Aka

note that the appellant was fully and tairiy

represented not diy at his original trial

and on original appeal but also at the Rule

20 petition hearing and in his appeal of

that. proceeding, which is presently ‘ative

this court.

The appellant also contends that the

State failed to provide him with exculpatory

evidence or evidence ‘that could be used to

impeach the Ste -'s key “witness. |

e 7

The peemreny veeo contends that the State

failed to inform him that Shirley franklin

was granted immunity See prosecution in

exchange for her testimony against him and

that it failed to provide nis with a.

statement made to the police by Shirley

Franklin. This argument has no merit. There

was absolutely no evidence presented at the

hearing that Shirley Franklin was granted |

immunity from prosecution. In-fact, tHe only |

Fa La ee eRe eT eM ee Oe Ke TT wen

i i i

7S é

evidence as to this claim was to the

contrary. Furthermcre, the appellant’ « trial

attorney testified .that, although he was not

‘given a copy of Shirley: Franklin's statement,

he was allowed to listen to and copy a taped.

statement given by Shirley Franklin. There

was, absolutely no testimony presented that

Shirley Weankiio received a promise of

payment or reward for her testimony.

The appellant also contends that the

State withineid exculpatory evidence based on

statements by Jack Lee Roberts, who said he

saw a man in the Majik Mart shortly before

Maisie Gray disappeared. The appellant

contends that the trial court erred by

applying the improper legal standard to

determine the materiality of the alleged

exculpatory evidence. He contends that the

trial court erred in finding that the

evidence is material "only if there is a

reasonable probability that, had the evidence

been disclosed to the defense, the result of

“= ) 2.

this proceeding would have been different."

(C.R. me?) s The appellant, bases this.

" argument on a ‘statement "made by the Alabama

Supreme Court in Ex parte Womack, 541 So.2d

47 (Ala,1988). In that case, the court noted

that Part Itt of vnated states v. Bagley.

U.S. 667, 105 S.Ct. 33735, $7 L. Ed.2d 481

(1985), was not the opinion of the United

States Supreme Court, but of only one

Justice. He further contends that the |

correct test of materiality is whether the

evidence "might have affected the outcome of

the trial." Womack at 64 (quoting, United

States v. Agurs, 427. U.8. 97,. 104, 96 $.Ct.

2392, 2397, 49 L.Ed.2a 342 (1976)).

A review of Bagley reveals, however,

that the majority of the court held that

“evidence is material only if there is a

reasonable probability that, had the evidence

been disclosed to the defense, the result of

the proceeding would have been astterene."

473 U.S. at 682, 685, 105 S.Ct. at 3383,

ee ie ee

3385. One concurring Justice, with whom two

other Justices concurred, stated:

“As the Justice correctly

observes, this standard is

‘sufficiently flexible’. to cover all

ont awn of prosecutorial failure to

disclose (evidence favorable to the

accused. Ibid. Given the

flexibility of the standard and the

inherently fact-bound nature of the

cases to which it will be applied,

however, I see no reason to attempt

to elaborate on the relevance to the

inquiry of the specificity of the’

defense's request for disclosure,

either generally or with respect to

this case. I would simply hold that

the proper standard is one of

reasonable probability...."

Id. at 685, 105 S.Ct. at 3385. Thus, a

majority of the Court upheld the “reasonable

probability” standard. The concurring

Justices aiepiy stated that the Court need

not address the specificity of the defense's

request. This interpretation is further

supported by Pennsylvania v. Ritchie,

U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d

40 (1987), which states:

“Although courts have used

different terminologies to define

‘materiality,’ a majority of this

court has agreed, '(e)vidence is

material only if there is a

reasonable probability that, had ‘the

evidence been disclosed to the

defense, the result of the proceeding

would have been.different. A

“reasonable probability” is a

probability sufficient to undermine

confidence in the outcome.' United

states v. Bagley, supra, 473 U.S., at

682, 105 S.Ct., at 3384 (opinion of

Blackmun, J.), see jd. at 685, 105

S.Ct., at 3385 (opinion of White,

J.)" (Emphasis added.)

We affirm the trial court's

determination that the alleged exculpatory

evidence was no material and find that the

trial court applied the correct legal

standard in reaching its conclusion. See,

e.g., Bradley v. State, 557 So.2d 1339,

1342-43 (Ala.Crim.App.1989) for another

Alabama case applying the same standard to

Brady claims. Furthermore, we note that the

allegedly exculpatory evidence is also not

material under the “night have affected the

outcome" test proposed by she appellant. The

appellant also failed to show “the favorable

character of the suppressed evidence for the,

defense as to his Brady claims. See Bradley.

We have carefully reviewed the allegations

and legal arguments in support of this appeal

i lull

and find no error. For the reasons stated

herein, the judgment ‘of the Blount County

Circuit Court denying the appellant's Rule 20

petition is due to be, and it hereby is,

affirmed.

AFFIRMED.

All the Judges concur.

s-) , Ses te ; wer — ; site aaa q 5

1 TNS PLR oe ee ET ER ROT PAE wh ERR oh Se PR, Bee, LO Oinn et GON VAS tee

APPENDIX A

IN THE CIRCUIT COURT OF BLOUNT COUNTY, ALABAMA

MICHAEL EUGENE THOMPSON, Petitioner,

STATE OF ALABAMA, Respondent,

Case No. CC-85-060.02

Filed Feb. 15, 1990

OPINION AND ORDER

THE APPENDIX TO THE OPINION OF THE COURT OF

CRIMINAL APPEALS IS REPRODUCED HEREIN AS

DOCUMENT NUMBER 3.

Nad

eS Se

oes Yn 2 te

' raised and addressed on appeal from

IN THE CIRCUIT COURT OF BLOUNT COUNTY, ALABAMA

MICHAEL EUGENE THOMPSON, Petitioner,

| | | v. |

STATE OF ALABAMA, Respondent,

Case Ne. CC-85-060.02

FiledFeb. 15, 1990

OPINION AND ORDER

Based on the evidence presented at trial

and the evidentiary hearing on the |

above-styled petition for relief from |

conviction or ‘sentence, the Court enters the

following findings of fact and conclusions of

law:

PROCEDURALLY BARRED CLAIMS

A. Claims Which Were Raised On

Appeal

Four of .the claims contained in the.

“amended petition, in whole or in part, were

Thompson's conviction and death sentence:

Claim I -- "Petitioner's

conviction was obtained by

' the unconstitutional failure

of the prosecution to

‘disclose to the petitioner

evidence favorable to the

petitioner (insofar as it

alleges that the State failed

to disclose Shirley

Franklin's criminal record)."

‘Claim II -=- "Petitioner was

denied a fair trial as a

result of the introduction

into evidence of alleged

confessions that, if given at

all, were given by petitioner

involuntarily, and without

the presence of counsel, in

violation of the Fifth, Sixth

and Fourteenth Amendments to

the United States —

Constitution and of the state

constitution and laws of the

State of Alabama (insofar as

it alleges that petitioner's

confessions were coerced or

otherwise > pariataisoreieleaale

Claim XVI -- "The Court’

improperly considered

inadmissible evidence’

presented at the sentencing

hearing in violation of

petitioner's rights."

Claim XVII -- “Petitioner's

‘death sentence was imposed

without the constitutionally

required consideration of

chronic alcohol and drug

abuse and extreme mental

disturbance as mitigating

circumstances."

See, Thompson v. State, 503 So.2d 871,

875-876, 877-878, 880-882 (Ala.Cr.App.1986),

aff'd, 503 So.2d 887 (Ala.), cert. denied

(484 U.S. 872], 108 S.Ct. 204 (98 L.Ed.2d

ne ea Ae re EO a ET ee

nena Harta Sait eal Select A it

NA It

155} (1987). Claims which were raised on

appeal are barred from further review.

Temporary Rule 20.2(a)(4), Alabama Rules of

Criminal Procedure; Ex Parte Rudolph, 276

Ala. 392, 393, 162 So.2d 486 (1964) ;

Richardson v. State, 419 So.2d 289

(Ala.Cr.App.), cert. denied, No. 81-937

(Ala.1982); Summers v. State, 366 So.2d 336,

340 (Ala.Cr.App.1978), cert. denied, 366

So.2d 346 (Ala.1979).

Eleven of the claims contained in the

amended petition, in whole or in part, could

have been veined at trial, and then, on

appeal, but were not:

Claim II ---"Petitioner was

Genied a fair trial as a

‘result of the introduction

into evidence of alleged

confessions that, if given at

all, were given by petitioner

‘involuntarily, and without

the presence of counsel, in

violation of the Fifth, Sixth

and Fourteenth Amendments to

the United States

Constitution. and of the state

constitution ‘and laws of

Alabama (insofar as it is

“tek

Yv-

based on allegations ,

involving Shirley Franklin]."

Claim III -- "Petitioner was

deprived of a fair trial as a

result of his attorney's

conflict of interest

resulting from his prior

representation of

petitioner's father's

killer."

Claim VI -- "Petitioner was

deprived of an impartial jury

through improper juror

exclusion in violation of the

Sixth, Eighth and Fourteenth

Amendments to the United

States Constitution [insofar

as it pertains to jurors who

were excused without

objection by defense

counsel)."

Claim IX -- "The victim's

daughter's participation in

the prosecution of petitioner

was highly improper and

denied petitioner a fair

trial and due process."

Claim X -- "The prosecutors'

misconduct and arguments at

trial and at petitioner's

sentencing hearing before the

jury and before the judge

were improper and violated

rights guaranteed by the

Fifth, Sixth, Eighth and

Fourteenth Amendments to the

United States Constitution

and the state constitution

E and laws of Alabama." —

Claim XI -- "The Court's

failure to give a jury

| 22

Amendments to the United

instruction on a lesser

included offense where the

evidence would have supported

such a verdict deprived

petitioner of a fundamentally

fair trial in violation of

his rights under the Fifth,

Sixth, Eighth and Fourteenth

States Constitution, and the

state constitution and laws

of Alabama."

Claim XII -- "The Court's

instructions to the jury

violated petitioner's

constitutional right to a

fair trial."

Claim XIII -- "The Court's

instructions to the jury at

the penalty phase to the

effect that the jury's

verdict was merely advisory

deprived petitioner of a

fundamentally fair. trial and

due process, and constituted

a violation of petitioner's

rights under the Fifth,

Sixth, Eighth and Fourteenth

Amendments to the United

States Constitution and the

state constitution. of

Alabama."

Claim XIV -- “Alabama's

application of the

"especially heinous,

atrocious and cruel"

aggravating circumstance is

ungonstitutionally vague and

as applied to petitioner's

case violates due process and

the prohibition against cruel

and unusual punishment."

——s -

Claim XV -- "The Alabama

death penalty statute, §

13A-5-45 et seq., as

implemented by the courts of

Alabama and applied in this

case, is unconstitutional,"

Claim XVIII -- "Petitioner's

death sentence was imposed in

violation of the Eighth and

Fourteenth Amendments to the

United States Constitution

and the state constitution

and laws of Alabama because

it was based upon aggravating

circumstances that merely

duplicated elements of the

crime of capital murder and

because the Alabama statutory:

scheme does not allow for a

meaningful independent review

of the sentencing judge."

Claims which could have been raised at trial,

by objection or motion, and then on direct

appeal but were not are barred from further

review. Temporary Rule 20.2(a)(3) & (5),

Alabama Rules of Criminal Procedure; Ex Parte

Ellison, 410 So.2d 130, 132 (Ala.1982) ;

Jackson v. State, 501 So.2d 542, 544

(Ala.Cr.App,1986), cert. denied, No. 86-269

(Ala.1987); Magwood v, State, 449 So.2d 1267,

1268 (Ala.Cr.App.), cert. denied, No.

83-1143 (Ala.1984).

| Cc. Claims Which Were Raised At

Trial But Not On Appeal

Four of the claims contained in the Ne

amended petition, in whole or in part, were

raised at trial but not on appeal:

Claim V -- "Petitioner's

rights to a fair trial by an

' impartial jury under the

Sixth, Eighth and Fourteenth

Amendments. to the United

States Constitution were

violated by the Court's

failure to grant a change of

venue."

Claim VI -- "Petitioner was

deprived of an impartial jury

through improper juror

exclusion in violation of the

Sixth, Eighth and Fourteenth

Amendments to the United

States Constitution [insofar

as it pertains to jurors who ih

were excused over objection

by defense counsel at

trial)."

we ee -ee s “ wres t

Claim VII -- "Petitioner was

deprived of an impartial jury

. through improper juror

| inclusion in violation of the

Fifth, Sixth and Fourteenth

| Amendments of the United

| States Constitution."

Claim VIII -- "Petitioner's

rights to a fair trial by an

impartial jury were violated

by the Court's restrictions

on the voir dire examinations

of prospective jurors."

siicaiiaeeariaimcuaallll

PS eT) ieee ee eT i. 7 Ae lee wr

While each of these. claims were raised at

trial, none was raised on appeal. See,

Thompson v. State; 503 So,2d 871

(Ala.Cr.App.1986), aff'd, 503 So.2d 887

(Ala.), cert. denied (484 U.S. 872}, 108

S.Ct. 204 (98 L.Ed.2da 155] (1987). Clains

which could have been but were not raised on

appeal are barred from further review.

Temporary Rule 20.2(a)(5), Alabama Rules of

Criminal Procedure; Ex Parte Rudolph, supra;

Bass v. State, 417 So.2d 582, 584

- denied, 417 So.2d 588

, 366 So.2d 336,

340 (Ala.Cr.App.1978), cert. denied, 366

So.2d 346 (Ala. 1979).

(Ala.Cr.App.),

(Ala.1982);

EXCULPATORY EVIDENCE

In Claim I of the amended petition,

Thompson alleged that the prosecution

withheld material ‘exculpatory evidence in

four instances:-

ae ee

a promise of immunity from

prosecution for Shirley Franklin;

a3 payment or promise of a

reward to Shirley Franklin or

Gary Franklin;

a a witness who described a person and

automobile he saw at the robbery and

abduction scene which allegedly did

not match Thompson's appearance and

automobile; and

4. the untimely disclosure of

Shirley Franklin's criminal

record at trial.

As noted above, this fourth allegation is

barred from consideration here because it was

raised and addressed on appeal from

Thompson's conviction and death sentence. As

to the remaining three allegations, Thompson

is not entitled to relief because this claim

lacks merit.

A. Legal Standard

In Brady v. Maryland, 373 U.S. 83 [83

S.Ct. 1194, 10 L.Ed.2d 215] (1963), the

Supreme Court required the prosecution to

disclose evidence in its possession which was

both favorable to . defendant and material to

deciding guilt or punishment. United States

Vv. Bagley, 473 U.S. 667, 674 [105 S.Ct. 3375,

3379, 87 L.Ed.2d 481] (1985). In Bagley, the

Court noted that the non-disclosure of

favorable evidence “amounts to a

constitutional violation only if it deprives

the defendant of a fair trial." Id., at 678

(105 S.Ct. at 3381). A new trial must occur

"only if the evidence is material in the

sense that its suppression undermines

confidence in the outcome of the trial." Id.

The Court then announced the standard to

be used in determining whether undisclosed

exculpatory evidence:was material:.

We find the Strickland

formulation of the Agurs test

for materiality sufficiently

flexible to cover the "no

request," “general request”

and “specific request” cases

of prosecutorial failure to

disclose evidence favorable

to the accused: The evidence

is material only if there is

a reasonable probability

that, had the evidence been

. disclosed to the defense, the

result of the proceeding

would have been different. A

"reasonable probability” is a

probability sufficient to

undermine confidence in the

outcome. :

Id., at 682 [£105 S.Ct. at 3383]. As to each

of these three allegations, Thompson has

failed to establish that he is entitled to

relief.

é ae _——

B. Immunity

At the three-day evidentiary hearing in

this case, Thompson presented no evidence to

show that Shirley Franklin was promised or

received immunity from prosecution. Because

Thompson has not proved any immunity

agreement existed, he has not proved that

exculpatory evidence existed to be withheld.

Because Thompson has not proved any immunity

agreement existed, he has not proved a

reasonable probability that, but for the

non-disclosure of such an agreement, he would |

not have been convicted or sentenced to

death. This allegation is without merit.

C. Rewards

The testimony and exhibits at the hearing

established that, after Thompson was

convicted and sentenced to death, M.L.

Carter, the chief investigator for the Etowah

County Sheriff's Office, recommended that

Gary Franklin receive a reward for his

actions. Defendant's Exhibit 16. According

to Chief Carter, Gary Franklin received a one

thousand dollar ($1,000.00) reward from the

Munford Corporation. Chief Carter wrote this

letter because, after Thompson was convicted,

he thought Gary Franklin deserved the reward.

Chief Carter thought Gary Franklin was |

‘entitled to the reward because he had

contacted the police while Shirley Franklin

had not.

Chief Carter never discussed any reward

before this letter with Gary Franklin or

Shirley Franklin and he never heard either of

them mention any reward. Thompson presented

no evidence showing that either shirley

Franklin or Gary Frankiii knew about any

reward before or during Thompson's trial.

Thompson presented no evidence showing that

‘either Shirley Franklin or Gary Franklin were

- peemiiee any reward before or during | ;

Thompson's trial. While, almost a year after

Thompson's trial, Etowah County Sheriff

McDowell wrote a letter recommending that

Shirley Franklin receive a reward,

Defendant's Exhibit 17, this letter does not

show that Shirley Franklin had been promised

or knew of any reward at the time of trial:

From all that the evidence before this Court:

shows, Shirley Franklin was ‘not promised a

reward before or during trial and never

received any reward, even though she

attempted to obtain one almost a year after—

Thompson's trial. |

The| evidence presented by Thompson does

not show that a promise to- pay or payment of

a reward existed at trial such as would have

constituted ampeaching iwidénes to be

disclosed. Further, no reward was ever paid

to a witness against Thompson since the only

reward proved was paid to Gary Franklin.

| Given Chief Carter's testimony, this payment

to Gary Franklin was not a ruse or attempt to

‘disguise a payment to Shirley Franklin but

rather was made to the person who contacted

the police with: information ‘about Mrs. Gray's

murder. Therefore, Thompson has failed to

prove that exculpatory evidence existed at

‘trial to be withheld.

Additionally, there is no reasonable

probability that, had Shirley Franklin been

shown to be aware of or promised a reward and

had such knowledge or promise been used in

cross-examining in oe outcome of

Thompson's trial would have baie different.

Shirley Franklin's account of Thompson's

actions and statements on the night of the

murder were consistent throughout the

investigation and trial. Further, her ,

testimony was fully corroborated by

‘Thompson's confessions.

For these reasons, this allegation too

lacks merit.

D. Jack Lee Roberts i

During their investigation of this crime,

Attalla police detectives interviewed Jack

Lee Roberts, who had been in the store where

Mrs. Gray worked on the night she was

murdered. He gave them a description of a

man he saw there and also an automobile.

Defendant's Exhibit 8. This statement was

given to Thompson's lawyers in response to

ea a Ne

‘$heir discovery motion before trial.

Defendant's Exhibits 24, 26, and 27. Roberts

also assisted in developing a composite

sketch of the person he saw in the store.

Deféndant's Exhibits 4 and 4a. |

, Roberts was later hypnotized. ok tape

recording of Roberts' interview: under

hypnosis, Defendant's Exhibit 5, and an

Attalla police report and mada | Defendant's

Exhibits 2 and 3, respectively, were not

provided to Thompson's trial tavvers:

Based on the testimony at trial and the

hearing on this petition, it is'clear that

the prosecution did not withhold material

exculpatory evidence as Fo Roberts. At the

time of trial, Thompson had given two

versions of the crime, one in which he

robbed, abducted and murdered Mrs. Gray, and

another in which he robbed and abducted Mrs.

Gray but Shirley Franklin killed her. Given

these stories, nothing in any of the Roberts

information was helpful since Thompson

admitted being at the store. Therefore, the

Roberts information was not exculpatory.

Further, the existence of Roberts and his

descriptions of the man and automobile were

not withheld by the prosecution. At the

hearing on this petition, Thompech

established that the primary statement of

Roberts to the Attalla police was in fact

given to his trial lawyers. While additional

information existed in police files, that

additional information does not materially

add to the value At ehniaion as a source of

exculpatory evidence. The prosecution

clearly notified the defense of Roberts'

existence and the nature of his information

when it produced his statement, Defendant's

Exhibit 8. Therefore, the Roberts

information was not .withheld.

Finally, the Roberts information, even

taken as a whole, is clearly not material.

-Given Thompson's admission to his lawyers

that he abducted Mrs. Gray and his trial

testimony to the same effect, there is no

reasonable probability that, but for the

cone Bg cer De

failure to produce the information obtained

from Roberts, Thompson would not have been

convicted and sentenced to death. Until the

hearing on this petition, Thompson nae never

denied being at the store and abducting Mrs.

Gray.

Given Thompson's statements to his lawyers

before the trial and his trial testimony,

there was no reason to believe that Roberts'

information was helpful. In fact, as noted

by B.J. McPherson, the ‘composite sketch

developed by Roberts resembles Thompson.

That sketch, Defendant's Exhibits 4 and 4a,

much more closely resembles Thompson, as

shown in State's Exhibit 2, than it does

Ricky Pope, as shown in State's Exhibit 3,

whom Thompson now claims robbed, abducted,

and murdered Mrs. Gray. Thus, it appears

that Roberts saw Thompson at the store, which

fact hardly exculpates Thompson.

Finally, this evidence is not material

because Thompson's latest version of the

events on the night of the murder is false.

35.

{

The Court has observed Thompson's demeanor

beth at trial and at the hearing on this

petition and he is not a credible witness.

The Court credits Thompson's confessions as

being the most, accurate versions of his

actions. Thompson, who admits telling lies

under oath at his trial, now says that the

real version of what happened is that Ricky

Pope was the guilty party. However, Pope, as

shown by both his photograph and physical

description on State's Exhibit 3, cannot be

and is not the man described by Rokerts.

Therefore, there is no reasonable probability

that, but for the absence of all the

{ngormation from Roberts about what he saw,

the outcome of Thompson's trial would have

been different. This allegation lacks merit.

There is no reason to believe that if

Thompson had had all of the Roberts

information he would have selected a

different story to tell at trial. Further,

even if he ‘hed selected his current story,

there is no reasonable probability of a

| | 36 |

7 PF , ; .

ee ee

different result because that story is false

and would have been proven to be false at

trial.

INEFFECTIVE ASSISTANCE OF COUNSEL

A. Legal Standard

Ineffective assistance of counsel claims

are governed by the United States Supreme

Court's decision in Strickland v. Washington,

466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674)

(1984). After recognizing that the benchmark

for judging any claim of ineffectiveness must

be "whether counsel's conduct so undermined

the proper functioning of the adversarial

process that the trial cannot be relied on as

having produced a just result," the Supreme

Court announced in Strickland that there were

two components to an ineffective assistance

of counsel claim:

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.

Id., at 687 [104 S.Ct. at 2064). The Court

held that the proper standard for attorney

performance is an objective one: “simply

reasonableness under prevailing professional

norms." Id., at 688 (104 S.Ct. at 2065]. The

Supreme Court held that:

Judicial scrutiny of

counsel's performance must be

highly deferential. It is

all too tempting for a

defendant to second-guess

counsel's assistance after

conviction or adverse

sentence, and it is all too

easy for a court, examining

counsel's defense after it

has proved unsuccessful, to

conclude that a particular

act or omission of counsel

was unreasonable. Cf. Engle

Vv. Isaac, 456 U.S. 107,

133-134 (102 S.Ct. 1558,

1574-1575, 71 L.Ed.2da 783)

(1982). A fair assessment of

attorney performance requires

that every effort be made to

eliminate the distorting

effects of hindsight, to

reconstruct the circumstances :

of counsel's challenged

conduct, and to evaluate the

conduct from counsel's

perspective at the time.

Because of the difficulties

inherent in making the

evaluation, a court must —

indulge a strong presumption

that counsel's conduct falls

within the wide range of

reasonable professional

assistance; that is, the

defendant must overcome the

presumption that, under the

circumstances, the challenged

action "might be considered

sound trial strategy." See

Miche]_v. New York (Louisiana |

), Supra, 350 U.S. (91) at ,

101 (76 S.Ct. 158, 164, 100

L.Ed. 83. (1955)). There are

countless ways to provide

effective assistance in any

- Even the best

criminal defense attorneys

would not defend a partigular

client in the same way. See

Goodpastor, The Trial for

Life: Effective Assistance of ;

Counsel in Death Penalty

Cases, 58 N.Y.U.L.Rev. 299,

343 (1983).

Id., at 689-690 [104 S.Ct. at 2065-2066]

(emphasis added). After a petitioner has

identified the specific acts or omissions

which he alleges were not the result of

reasonable professional judgment, the court

must determine whether those acts are

“outside the wide range of professionally

competent assistance.” Id., at 690 [104 S.Ct.

at 2066). In making this determination, "the

court should recognize that counsel is

strongly presumed to have rendered adequate

assistance and made all significant decisions

in the exercise of reasonable professional

judgment." Id. (emphasis added). The Supreme

Court said that courts must also recognize

that strategic choices made after reasonable

investigation are virtually unchallengeable,

and the reasonableness of a counsel's actions

may be determined or substantially influenced

by what the defendant has told him. Id.

Even when a counsel's performance is

outside the wide range of professional

ceasansbibnsaa, the judgment in question is

not to be set aside unless the petitioner

affirmatively proves prejudice. Id., at

691-693 [104 S.Ct. at 2066-2068]. It is not

enough that a defendant "show that the errors

2067).

had some conceivable effect on the outcome of

the proceeding." Id., at 693 (104 S.Ct. at

Instead:

The defendant must show that

there is_ a reasonable

probability that, but for

counsel's unprofessional

errors, the result of the

proceeding would have been

». A reasonable

probability is a probability

sufficient to undermine

confidence in the outcome.

694 (104 S.Ct. at 2068] (emphasis

More specifically, the Supreme Court

When a defendant challenges a

conviction, the question is

whether there is a reasonable

probability that, absent the

errors, the factfinder would

have had a reasonable doubt

respecting guilt. When a

defendant challenges a death

sentence such as the one at

issue in this case, the

question is whether there is

a reasonable probability

that, absent the errors, the

sentencer -- including an

appellate court, to the

extent it independently

reweighs the evidence --

would have concluded that the

balance of aggravating and

mitigating circumstances did

not warrant death.

Id., at 695 [104 S.Ct. at 2068-2069]. In

making a prejudice determination, the

totality of the evidence that was before the

judge must be considered.

Three additional Supreme Court decisions

have a bearing on evaluating Thompson's

ineffective assistance of counsel claims.

The First is Engle v. Isaac, 456 U.S. 107

(102 S.Ct. 1558, 71 L.Ed.2d 783] (1982), in

which the Supreme Court held:

Every trial permits a myriad

of possible claims. Counsel

might have overlooked or

chesen to omit respondent's

due process argument while

pursuing other avenues of

defense. We have long

recognized, however, that the

Id., at 133-134 (102 S.Ct. at 1575] (emphasis

added).

The second is United States v. Cronic, 466

U.S. 648 [104 S.Ct. 2039, 80 L.Ed.2d 657]

(1984), in which the Supreme Court held:

The right, to the effective assistance

of counsel is thus the right of the accused

to require the prosecution's case to survive

the crucible of meaningful adversarial

testing. When a true adversarial criminal

Id., at 656 (104 S.Ct. at 2045) (footnotes

omitted). The Cronic decision also held

that: "(b)ecause we presume that the lawyer ~~

is competent to provide the guiding hand that

the defendant needs ... the burden rests on

the accused to demonstrate a constitutional

violation." Id., at 658 (104 S.Ct. at 2046]

(footnote omitted) (emphasis added).

The third Supreme Court decision is Smith

v. Murray (477 U.S. 527], 106 S.Ct. 2261

(2661, 91 L.Ed.2d 434) (1986). In that case,

the Court recognized that the process of

winnowing out weaker arguments on appeal and

focusing on those more likely to prevail is

the hallmark of effective appellate advocacy.

Id. (106 S.Ct.) at 2667. The Court

concluded:

It will often be the case

that even the most informed

counsel will fail to .

anticipate a state appellate

court's willingness to

reconsider a prior holding or

will underestimate the

likelihood that a federal

habeas court will repudiate

an established state rule.

But, as Strickland v.

Washington made clear, "(a)

fair assessment of attorney

performance requires that

every effort be made to

eliminate the distorting

effects of hindsight, to

reconstruct the circumstances

of counsel's challenged

conduct, and to evaluate the

conduct from counsel's

perspective at the time.” 466

U.S., at 689, 104 S.Ct., at

2065. Viewed in light of

Virginia law at the time Mr.

Pugh submitted his opening

brief to the Supreme Court of

Virginia, the decision not to

pursue his objection to the

admission of Dr. Piles'

testimony fell well within

the “wide range of

professionally competent

assistance" required under

the Sixth Amendment to the

Federal Constitution. Id.

(466 U.S.], at 690, 104

S.Ct., at 2066.

Id.

B. Thompson's Trial and Appellate

Counse)

Thompson was represented at his 1985

capital murder trial and on appeal through

the Alabama Supreme Court by B.J. McPherson

and John Dobson. Both were appointed to

represent Thompson by this Court. Both

McPherson and Dobson are and Jere at the time

of Thompson's trial experienced and competent

trial attorneys.

B.J. McPherson is and was at the Cine of

Thompson's 1985 capital murder trial in

private practice in Blount County, Alabama,

and had been since he was admitted to

practice in 1969. At the time of Thompson's

trial, 25 to 30 percent of his practice was

criminal defense work; he had tried 150 to

200 felony cases; including ten or eleven

murder cases.

John Dobson is currently a District Court

Judge for the 30th Judicial Circuit which

includes Blount County, Alabama. At the time

of Thompson's trial, he was an attorney in

private practice in Blount County and had

been since 1976. His practice was 20 to 25

percent criminal defense work and he had been

involved in and tried felony cases, although

he had not been involved in any capital

murder trials.

Prior to the trial of this case, ~

Thompson's attorneys met with him for more

than 20 hours. During some weeks they met

with him daily, especially close to trial. |

Thompson's attorneys also undertook a great |

deal of investigation and research into the

legal issues in this case. Based on | -

conversations with Thompson, the fact that —

Thompson had confessed, and on the results of

the psychiatric examinations, Thompson's

trial counsel developed a trial strategy that.

involved a theory of lesser culpability and

-putting the State to its burden of proof.

This Court had the opportunity to observe

both trial counsel when they testified at the

evidentiary hearing in this case and finds

that both Jonn Dobson and B.J. McPherson were

credible witnesses.

Cc. Specific Claims

In his Rule 20 petition, Thompson raised

twenty-four claims of ineffective assistance

of counsel. At the evidentiary hearing held

on May 23, 24, and 25, 1989, Thompson called

fourteen witnesses including both of

Thompson's trial attorneys, John Dobson and

_B.J. McPherson. He also introduced 30

exhibits. The State called two witnesses and

re-called John Dobson. The State also

intwedueed 3 exhibits. Having considered all

the evidence, the Court makes the following

findings:

1. Allegations that trial counsel

failed to adequately communicate

with and advise Thompson

In paragraph 19(a), Thompson alleged that

Dobson and McPherson failed to adequately

communicate with him before, during, and

after trial. This allegation is contradicted

by the evidence at the Rule 20 evidentiary

hearing.

Prior to trial, McPherson and Dobson met

with Thompson extensively. In those meetings

with Thompson, his trial attorneys discussed

trial strategy and his defense with hin.

Trial procedures were also discussed with

Thompson. State's Exhibit 1, which is a

transcript of a conversation between Thompson

and his attorneys prior to Thompson's trial,

which was taped by trial counsel, reveals

that defense decisions were discussed with

Thompson. For example, trial counsel

discussed with Thompson whether he wanted his

statement of the events surrounding the —

crime; as given to his attorneys, turned over

to the sheriff's office. It also reveals

that trial counsel explained to Thompson the

possible consequences of turning over that

statement, which incriminated Shirley

Franklin.

The transcript reveals that Thompson's

version of the events on the night of the

crime were discussed with him in detail; a

étticnineted given by a witness who was on the

scene prior to the victim being reported

missing was discussed with him; and, the

various motions to be filed were discussed \

with him. State's Exhibit 1 also reveals

that a possible insanity or diminished

48 al

capacity defense was discussed with Thompson

and the procedures required to establish such

a defense were explained and discussed with

Thompson.

In addition, McPherson and Dobson

testified that they met and discussed the ,

trial and Thompson's defense during trial,

each morning before trial began, and each

evening after proceedings were adjourned.

This Court finds that the testimony of John

Dobson and B.J. McPherson that they

communicated with Thompson regarding his

defense and trial procedures is credible, and

that Thompson's testimony to the contrary is

not credible. The evidence reveals that

trial counsel were very conscientious in

their communication with Thompson and in

advising him of trial procedures. Thompson

has failed to establish that his trial

counsel's performance was deficient in their

communication with Thompgon.

Thompson has also failed to establish that

he was prejudiced by any failure of his trial

counsel to communicate with him. Thompson

- ao a ae

presented no evidence that his trial counsel

failed to communicate anything to him that

would have made a difference in the. outcome

of his trial. Thompson did not prove a

| reasonable probability that, but for trial

counsel's failure to communicate some

information to him, the outcome of his trial

would have been different. Strickland v.

Washington, 466 U.S. at 694 (104 S.Ct. at

2068).

Thompson also has not shown that his trial

counsel failed to competently advise him or

gave him erroneous advice as to the charges.

pending against him; the defense veite:

the effect of having Thompson testify during

the guilt phase of the trial; the effect of

not having Thompson testify before the jury

during the penalty phase of the trial; the

effect of not having Thompson's mother

testify before the judge immediately prior to

sentencing; or the effect of failing to

adequately prepare for the penalty phase of

the trial. These claims are contained in

paragraph 19(c).

Thompson presented no evidence that his

trial counsel failed to advise, or

erroneously advised, Thompson that he was

charged with the capital murder of Maisie

Carlene Gray, and of the possible

consequences of that charge. He has

therefore failed to demonstrate that trial

counsel's performance was deficient as to

this claim. —

Trial counsel thoroughly advised and

discussed defense strategy with Thompson,

including a possible insanity defense as is

reflected in State's Exhibit 1. The trial

attorneys also explained the difficulty in

defending the version of the crime he gave

them, considering the fact that he had given

a different version in his confessions.

Thompson has not demonstrated that his trial

counsel's performance was deficient as to

this claim.

lee «or tel

Trial counsel were also very-diligent in

explaining to Thompson the effect of his

testifying during the guilt phase of the

trial. Again, this is reflected in State's

Exhibit 1. Trial counsel explained the

problems and possible consequences of

Thompson telling a different story in court

than he told in his confession. After

explaining to Thompson that he had the right

to testify or not to testify, trial counsel

advised Thompson to take the stand and

testify at the guilt stage of the trial.

This advice was reasonable in light of

Thompson's wanting the jury to disregard his

confession to law enforcement officers;

believe that he gave them that story in order

to protect his girlfriend, Shirley Franklin;

and that it really was Shirley Franklin who

actually shot and killed Mrs. Gray. ,Thompson

has failed to demonstrate that his trial

counsel's performance was deficient as to

this claim.

This Court finds that trial counsel did

advise Thompson as to the importance of his

testifying before the jury during the penalty

phage of the trial and the possible effects

of his not testifying. Trial counsel advised

Thompson to testify at the penalty phase but

he refused, telling his,trial counsel he

"wasn't going to get on the stand and beg

those bastards for anything." The trial

record also reflects that Thompson was

advised of his right to testify and that he

did not want to. Thompson's assertions to

the contrary are not credible. Thompson has

failed to demonstrate that his trial

counsel's performance was deficient as to

this claim.

Thompson presented no evidence on his

Claim that his trial counsel failed to

competently advise him or gave him erroneous

advice regarding the effect of not having his

mother testify before this Court immediately

prior to sentencing. There is no evidence

therefore that his counsel's performance was

deficient as to this claim. Furthermore,

there was no prejudice from the failure of

the mother to testify immediately prior -to

sentencing. This Court is the same court

that heard evidence at both the guilt and

penalty stages in the 1985 trial of this

case. Thompson's mother, Joyce Parker,

testified at the penalty phase of this case

as to Thompson's drug and alcohol problems

and asked the jury for mercy. This Court

heard that testimony and had Mrs. Parker also

testified after the jury's recommendation and

prior to sentencing before this Court, the

sentence imposed would have been the same.

Therefore, there is no prejudice from any

failure on trial counsel's part to advise

Thompson of the effects of his mother taking

the stand immediately prior to sentencing.

Thompson presented no evidence that his

trial counsel failed to advise, or

erroneously advised, Thompson of the efféct

of failing to adequately prepare for the

penalty phase of the. trial. He has therefore

not shown his trial counsel's performance was

deficient. Further, trial counsel did in

fact adequately prepare for the penalty

phase, see pp. 1233-1235, below. Therefore,

there is no prejudice from trial counsel's

failure to advise Thompson of the effects of

failing to adequately prepare for the penalty

phase of the trial. |

This Court finds that Thompson's trial

attorneys competently and correctly advised

him as to the claims in paragraph 19(c) on

which testimony was presented. As to all of

his allegations in paragraph 19(c), Thompson

has not only failed to establish that his

trial counsel's performance was deficient, he

has also failed to establish any prejudice.

In order to succeed on an ineffective

assistance of counsel claim, a defendant must

establish both deficient performance and

prejudice. Thompson has not shown that but

for his counsel's performance as to the

Claims in paragraph 19(c), the result of the

trial would have been different. This claim

of ineffective assistance of trial counsel is

without merit.

2. Allegations that trial counsel

failed to investigate and

prepare

In paragraph 19(a) Thompson alleges that

trial counsel did not Adequately investigate

his case. This allegation is contradicted by

the evidence submitted at the Rule 20

hearing.

Upon being appointed to represent Thompson

in this case, trial counsel learned that

Thompson had given a confession implicating

himself as the sole perpetrator of this

crime. Subsequent to that, trial counsel

_ were told two or three different stories by

Thompson as to what occurred on the night

Maisie Gray was kidnapped, robbed, and

murdered. However, he always maintained that

he was involved in the robbery and

kidnapping, although he told his attorneys he

did not murder Maisie Gray.

Trial counsel repeatedly stressed to

Thompson the importance of telling them the

truth about what occurred on the night Maisie

Gray was murdered. State's Exhibit 1 clearly

establishes this fact. Thompson maintained

that he did rob and kidnap Maisie Gray, but

that Shirley Franklin actually murdered

Maisie Gray. It was on this basis that trial

counsel conducted their investigation and

developed their strategy.

Trial counsel testified, and this Court

finds that testimony credible, that.in..

preparing for this case, trial counse} |

interviewed law enforcement personnel

involved in the investigation of this case;

members of Thompson's family; Thompson

himself; and, every person that Thompson

named as being a possible witness for him in

this case. Trial counsel testified, and

Defendant's Exhibit 20 and 21 reflect, that

they visited the scene of the crime and

searched for witnesses in the community.

Trial counsel did not find anyone in the

community to testify on Thompson's behalf,

except for two of his friends, Jackie Pope

and Connie Pope, and his mother, Joyce

Parker. Trial counsel spoke with Thompson's

mother about Thompson's childhood and any

traumas he may have experienced. The

contrary testimony of Thompson's mother,

Joyce Parker, is not credible because, based

on her testimony and demeanor, she was biased

and not a credible witness. In their many

hours of discussion with Thompson, trial

counsel also asked Thompson about his

childhood, educational background, drug and

alcohol problem, and religious background.

Thompson's testimony to the contrary is not

credible. |

In addition, trial counsel filed many

pretrial motions, including a motion to

produce. Their motion to produce was granted

and they reviewed material in the District

Attorhey's file. The trial attorneys also

researched the legal and factual issues they

anticipated would arise before and during

trial.

Trial counsel filed the motions for

psychiatric examination because this was a

_ Capital case and because they felt it would

help them establish a diminished capacity

defense. Trial counsel's motion for

psychiatric examination and motion for

independent psychiatric examination were both

granted and Thompson was evaluated at Taylor

Hardin Secure Medical Facility by a lunacy

commission and by a private psychiatrist

hired by trial counsel, Dr. R.A. Sleszynski.

In general, trial counsel's performance in

investigating Thompson's case was thorough

‘and Thompson has not demonstrated that trial

counsel's performance was “outside the wide

range of professionally competent

assistance." 466 U.S., at 690 [104 S.Ct., at

2066). He has not shown his trial counsel's

performance was deficient with respect to his

two specific allegations of inadequate

investigation either.

In paragraph 19(b), Thompson claims that

his trial counsel were ineffective because

they failed to contact an eyewitness to the

robbery of the victim. Thompson failed to

name who the eyewitness to the robbery of

Maisie Gray was and presented no testimony

that there was in fact an eyewitness to the

robbery of Maisie Gray. However, it appears

from the test imony at the evidentiary hearing

that Thompson is claiming that his trial

counsel were ineffective for failing to

contact a witness named Jack Lee Roberts.

Roberts is the same individual who is the

basis of Thompson's Brady claim discussed [in

"“Exculpatory Evidence," part D.], above.

Trial counsel testified at the evidentiary

hearing that they were aware that Roberts had

given a description of an individual that he

saw in the Majik Market shortly before Maisie

Gray was discovered missing which description

arguably did not fit the description of

Thompson. However, based on their

conversations with Thompson, trial counsel

did not investigate this information further.

Thompson had consistently maintained that he

» 60

committed the robbery and kidnapping of —

Maisie Gray and it was reasonable for trial

counsel not to contact Roberts in light of

that fact. “Trial counsel's reliance on what

Thompson told them in guiding their

investigation was reasonable. As was noted

in Strickland v. Washington, 466 U.S. at 690

(104 S.Ct. at 2066), the reasonableness of a

counsel's actions say be determined or

substantially influenced by what the

defendant has told him.

Further, Thompson cannot establish

prejudice with respect to this specific

allegation of inadequate investigation.

Roberts did not reveal to the police that he

actually saw the robbery, kidnapping or

murder of Maisie Gray. There is no evidence

that, had this information been more

thoroughly investigated, any more information

would -have been discovered. Thompson has

failed to demonstrate that, but for counsel's

performance in not contacting Roberts, the

outcome of the trial would have been

different. |

In paragraph 19(f), Thompson trial

counsel failed to investigate orivica2 state

witnesses. In his amended petition, Thompson

does not name what "critical state witnesses"

were not adequately investigated. At the.

evidentiary hearing, the only critical state

witness sitigneie to by Thompson was Shirley

Franklin. This Court finds that an adequate

investigation was made of Shirley Franklin.

Prior to the trial of this case, trial

» counsel received a tape recorded statement by

Shirley Franklin given to the Etowah County

authorities during the investigation of this

case. In the transcript of that statement,

Defendant's Exhibit 12, Shirley Franklin

implicated Thompson as the perpetrator of the

robbery/kidnapping/murder of Maisie Gray.

Trial counsel were told by Thompson that

Shirley Franklin had a prior felony

conviction and trial counsel continually, but

unsuccessfully, tried to obtain some

} .

: : ‘

a ;

confirmation of that fact. They finally had

Shirley Franklin brought in and questioned

and she admitted in a tape recorded interview

that she had a witeke armed robbery conviction

and several escapes.

The Saturday before trial, Dobson received

an NCIC report indicating that Shirley

Franklin had a criminal record and, on the

morning trial began, asked this Court to

ica Lanai the case, which it refused to do.

Trial counsel also objected to Shirley

Franklin's testimony during the trial of this

case because they had not been provided

information on her prior criminal record.

Trial counsel also investigated Shirley

Franklin's community reputation. They in

fact discovered one witness who agreed to

testify that Shirley Franklin had held a gun

to his head while robbing him. That witness

later refused to testify, however. .

Trial counsel's investigation of the State's

witness Shirley Franklin was not outside the,

wide range of professionally competent

assistance. It was in fact thorough,

complete investigation. Trial counsel did

everything they could to obtain impeachment

evidence on Shirley Franklin. That they were

unsuccessful does not mean their performance

was deficient.

Even if trial counsel's performance

was deficient, Thompson cannot ote any

prejudice. Shirley Franklin testified at the

1985 trial that she had been convicted of

armed rabbery, as an accessory, in Indiana

and had received a ten year sentence (TR

415-418) She also testified that she had been

convicted of escape in Indiana. (T.R.

419-20) Thompson's present counsel did not

present any additional evidence at the

evidentiary hearing, and there is no

wot

additional evidence in this case, indicating

that Shirley Franklin had been convicted of

any other offenses. Therefore, Thompson has

not demonstrated ony prejudice from failing

to further invasbioare tsmemeiiinidt evidence

on Shirley Franklin. There is no evidence

that, but for trial counsel's performance,

the outcome of Thompson's trial would have

been different. :

3. Allegation that trial counsel

failed to seek order compelling /

‘compliance with motion to }

produce

In paragraph 19(r), Thompson alleges his

trial. counsel were ineffective because they

failed to seek an order from this Court

compelling the State to comply with this

Court's February 5, 1985 order regarding -

peldudeion of documents, or produced

documents so late that defense counsel were

able to make little use of them at trial.

This allegation is without merit.

Prior to trial, on January 31, 1985, trial

counsel filed a._motion to produce. (T.R. 77)

That motion was granted, for the most part,

on February 5, 1985. (T.R. 77) Trial counsel

received twenty-five documents on February .

25, 1985, as is reflected in Defendant's

Exhibit 24.

This Court finds that with respect to

efforts by trial counsel to obtain Shirley

}

Franklin's criminal record, trial counsel did

all that was required, and that their

performance was not deficient. Insofar as

Thompson claims that trial counsel should

have requested an order compelling compliance

with this Court's discovery order in any

other respects, Thompson has not demonstrated

that the State failed to produce any other

documents subject to that discovery order.

Trial counsel's performance cannot be found

to be deficient for failing to request an

order compelling compliance with an order

that counsel reasonably thought had been

complied with. d

Thompson has not shown any prejudice from

trial counsel's failure to request an order

compelling compliance with the discovery —

order either. Shirley Franklin admitted her

prior criminal convictions at trial and,

Thompson has not demonstrated that there were

any additional convictions to be prodded.

Thompson has also failed to show that the

prosecution failed to comply with the Court's

' 66

discovery order in any other respect.

Thompson has failed to show any prejudice

with regard to this Claim because he has not

demonstrated that the absence of a motion to

compel compliance with the discovery order

had any effect at all on| his trial. ;

4. Allegation that trial counsel

failed, to adequately seek a

change of venue

In paragraph 19(d) of his amended

petition, in that part of the petition

labeled "Grounds for Petition," Thompson

alleges his trial counsel were ineffective

because they failed to adequately seek a

change of venue. This allegation is without

merit. :

Trial counsel filed a motion for change of

venue (T.R. 63) and were heard on that motion

on September 25, 1985. This Court took that

motion under advisement and reserved ruling

until after jury voir dire. (T.R. 64) After

jury voir dire, trial counsel renewed the

motion for change of venue, predicated on the

responses of potential jurors to questions

posed during voir dire. (T-R. 157) This

Court denied that motion again based on the

fact that all jurors indicated that they

could put aside anything they had read,

heard, or seen about the case and decide the

case based on the evidence presented in

Court. ‘(T.R. 155-56) At the evidentiary

hearing in this case, Thompson introduced 37

articles from several different news sources

in support of this claim... The articles were

from the Gadsden Times, The Birmingham News,

Birmingham Post-Herald, and the Southern

Democrat. No evidence was presented

regarding circulation figures in Blount

County or how often each paper issued. This

Court finds that the 37 articles are

fact-based and are not sensational or

inflammatory. ~

Trial counsel's performance was not .

deficient with respect to requesting a change

of venue. Trial counsel did in fact request

a change of venue prior to trial and |

subsequent to jury voir dire. Trial counsel

Properly sought to base their motion on voir

dire responses. Trial counsel's pertecsadca

Was not deficient.

Further, Thompson has failed to establish

Prejudice. Before he can establish that he

was entitled to a change of venue, "the

defendant in a criminal case has the burden

of showing there was such prejudice

prevailing in the community where his trial

was set that a fair and impartial trial could

not be had." McLaren v. State, 353 So.2d 24,

31 (Ala.Cr.App.), cert. denied, 353 So.2d 35

(Ala.1977). Because Thompson has failed to

show that a fair and impartial jury could not

be had in his case in Blount County, he has

failed to establish that he was prejudiced by

his trial counsel's failure in connection

with the motion for change of venue.

All that petitioner presented at the

evidentiary hearing in support of his

contention that trial counsel should have

obtained a change of venue were some

newspaper articles. As the Alabama Court of

Criminal Appeals has held:

Newspaper articles alone

would not necessitate a

change of venue unless it was

shown that the articles so

affected the general

citizenry through the

insertion of such

sensational, accusational or

denunciatory statements, that

a fair and impartial trial

was impossible. Patton v.

State, 246 Ala. 639, 21 So.2d

844 [(1945}.

McLaren v. State, 353 So.2d, at 31. The fact

that a case generates even widespread

publicity does not warrant a change of venue.

E.g., Waldrop v. State, 459 So.2d 953, 955

(Ala.Cr.App.1983), aff'd, 459 So.2d 959

(Ala.1984); Sparks v. State, 450 So.2d 188,

191 (Ala.Cr.App.), cert. denied, No. 83-687

(Ala.1984). Newspaper stories that are not

inflammatory or sensational do not warrant a

change of venue. Primm v. State, 473 So.2d

1149, 1155 (Ala.Cr.App.), cert. denied, No.

84-906 (Ala.1985); McLaren v. State, ° 3

So.2d 24, 31 (Ala.Cr.App.), cert. denied, 353

So.2d 35 (Ala.1977). Thompson's evidence

. | | ia ‘ |

failed to establish that he was entitled to a

change of venue and, therefore, he has failed

to establish a reasonable probability that,

but for the absence of a properly supported

motion for a change of venue, the outcome of

his trial would have been different. Because

he cannot show that he was prejudiced, this

claim is without merit.

§. Allegation that trial counsel

failed to adequately voir dire

Jury

In paragraph 19(e) of his amended petition

in that part of the petition labeled "grounds

of Petition," Thompson alleges his trial

counsel were ineffective because they failed

to adequately examine jurors who would

automatically sentence to death one convicted

of a capital offense and because they failed

to voir dire potential jurors in any way to

effectively discern if they would be biased

or should otherwise be struck for cause.

Thompson presented no evidence at the

ottdéikiary hearing as to this claim and this

allegation is without merit.

Trial counsel adequately questioned

potential jurors as to their feelings on the

death penalty and as to any bias they might

have had against Thompson. Furthermore,

Thompson has not shown any prejudice as he

has not demonstrated that questioning could

have been conducted which would have resulted

in a different outcome at trial’

6. Allegation that trial counsel

failed to object to cause

challenges by the State

In paragraph 19(i) of his amended petition

in that part of the petition labeled "Grounds

of Petition", Thompson alleges his trial

counsel were ineffective because they failed

to object to the prosecutor's improper and

arbitrary exercise of cause challenges

against some venire members. Thompson

offered no testimony as to this claim at the

evidentiary hearing and this allegation is

without merit.

Only three potential jurors were

challenged for cause during jury voir dire in

this case. (T.R. 85-87, 97-100, 167) All

three challenges were made by Thompson's

trial counsel. Because the State did not

challenge any individuals for cause, trial

counsel's performance was not deficient for

failing to object to any cause challenges by

the State. Thompson also cannot demonstrate

that but for trial counsel's performance, the

outcome of his trial would have been

different and has therefore failed to prove

prejudice.

Ve Allegations that trial counsel

failed to present an adequate

defense strategy at the guiit

phase

In paragraphs 19(g), (t), and (x) of his

amended petition in that part of the petition

labeled "Grounds Of Petition", Thompson

alleges that his trial counsel were

ineffective because they failed to adequately

prepare, investigate, pursue, and present a

defense strategy at the guilt phase of his

trial. This allegation is without merit.

In support of this claim, Thompson

presented expert testimony by Richard Jaffe,

a criminal defense attorney practicing in

Birmingham, hired by Thompson's present

attorneys. It was Jaffe's opinion that trial

counsel did not have a reasonable trial

strategy and therefore rendered ineffective

assistance. ‘affe was uncertain about the

standard used to determine ineffective

assistance claims under Strickland, and

indicated that his opinions were not based

solely on Strickland. Jaffe also testified

that it is necessary to rely on information

from your client in formulating a defense

strategy and that he relies on such

information in developing trial strategies.

He also admitted that it is difficult to

develop a defense strategy when there is a

confession that is inconsistent with what

your client has told you has occurred.

Finally, Jaffe testified that it is not

unusual for attorneys to disagree about how

to conduct a defense and that just because

the attorneys disagree doesn't mean that one

strategy is right and the other is wrong.

As was discussed [in "Ineffective

Assistance of Counsel," C. 1.], ‘above, trial

counsel developed their trial strategy based

on the fact that Thompson continually

maintained that he robbed and kidnapped

Maisie Gray but that Shirley Franklin

actually shot and killed Maisie Gray. Trial

counsel's strategy at the guilt stage was to

present evidence of Thompson's limited

participation in the crime, to implicate

Shirley Franklin as the murderer; and to

present evidence of Thompson's diminished

capacity due to his ézeonei and drug use to

negate the necessary intent. Trial counsel

considered a possible insanity defense but

based on their contact with Thompson and the

report from Taylor Hardin Secure Medical

Facility and the report from Dr. Sleszynski,

a private psychiatrist hired by trial

counsel, they rejected this defense. Trial

counsel also attempted to have Thompson's

statements to law enforcement authorities

suppressed. Trial counsel's defense strategy

3 | 75

iid fi . ; : i , —

was a reasonable strategy based on the facts

presented to them. | i

Thompson has not shown that trial

counsel's defense strategy at the guilt stage

was deficient. In fact, it was a sound,

reasoned strategy. Trial sasmeinailit made the

type of sound strategic decision after

reasonable: investigation that the Supreme

Court has found to be "virtually

unchallengeable."” Strickland, 466 U.S. at 690

(104 S.Ct. at 2066). Thompson also has not

demonstrated prejudice as this Court finds

that the evidence presented in this-case . .-

established Thompson's guilt beyond a

reasonable doubt.

Thompson claims in paragraph 19(g) that

trial counsel were specifically ineffective

in their defense stratesy because they failed

to, prepare Thompson to testify. This Court

finds as a fact that trial counsel adeouately

discussed and prepared Thompson for trial and

advised him of the \defense strategy to be

followed in his case. Trial counsel even

went over the specific questions Thompson

would be asked by them at trial. Therefore,

trial. counsel's performance was not deficient

as to this specific claim. Further, ices

has not demonstrated that, but for counsel's

performance, the outcome of the trial would

have been different. Thompson presented no

evidence at the evidentiary hearing 4

establishing that he was unprepared to

testify or as to how a lack of preparation

affected his trial.

' Thompson claims in paragraph 19(t) that

trial counsel was ineffective because it was

admitted in opening statement that Thompson

had kidnapped and robbed Maisie Gray .and was

present during her murder. Thompson

presented testimony from Richard Jaffe

regarding this specific allegation. It was

Jaffe's opinion that trial counsel was

ineffective for conceding guilt in onenine

statements. This Court resects that opinion

and finds that it was a reasonable strategic

decision to admit Thompson's limited guilt in

/ 77

opening statements in order to diminish the

impact of the evidence presented during the

trial, especially in light»of trial counsel's

defense strategy to admit limited

participation and argue that Thompson was

fiess culpable than Shirley Franklin.

Thompson has also not shown that trial

counsel's decision to admit guilt in the

vehinaate and kidnapping, but to deny

participation in the murder prejudiced his

defense. In light of the fact that there was

evidence presented at trial that Thompson did

participate in the robbery/%idnapping/murder

of Maisie Gray in®the form of his confession,

the testimony of Shirley Franklin, and

Thompson's own testimony, he has failed to

demonstrate any prejudice from his counsel's

opening argument admitting participation in

the crime.

8. Allegation that trial counsel

failed to adequately :

cross-examine a critical State's

witness ~

/ In paragraph 19(f) of his amended petition

in that part of the petition labeled "Grounds

( 78

Of Petition", Thompson alleges that his trial

counsel were ineffective because they failed

to adequately cross-examine critical State

witnesses whose testimony had to be

challenged to protect Thompson's interests

and rights. Thompson did not indicate which

State witnesses were not adequately

cross-examined. However, this Court finds

that trial counsel's cross-examinations of

the State's witnesses were adequate and,

especially with respect to Shirley Franklin

and law enforcement officers, were thorough.

Because Thompson has not demonstrated what

additional cross-examination should have been

done or what cross-examination was improper,

he has failed to establish that his lawyers'

performance was deficient or that he was

prejudiced by his lawyers' performance.

9. Allegation that trial counsel

failed to object to the

introduction of improper

evidence

In paragraphs 19(}) and (0) of his amended

petition in that part of the petition labeled

"Grounds Of Petition", Thompson alleges his

| niente

trial counsel were ineffective because they

failed to’object to the introduction of

improper evidence at the guilt phase, penalty

phase and sentencing hearing before the trial

court. Thompson presented no evidence with

respect to this claim at the evidentiary —

hearing and this allegation is without merit.

Thompson has not shown that any evidence

admitted by this Court at any phase of

Thompson's trial was improper or

inadmissible. He has not shown any deficient

performance by trial counsel with respect to

this claim and he hae hoe shown that, but for

counsel's performance, the outcome uP his

trial would have been different.

10. Allegation that trial counsel

failed to object to the victim's

daughter's presence at the

prosecution's table and other

improper references to the worth

of the victim >

In paragraph 19(e) of his amended petition

in that part of the petition labeled "Grounds

Of Petition”, Thompson alleges that his trial

counsel were ineffective because they failed

to object to the victim's daughter's presence

at the prosecution table and because they

failed to object to other improper references

to the worth of the victim. Thompson ;

presented no evidence on this claim at the

evidentiary hearing and this allegation is

without merit.

Trial counsel were not ineffective for

failing to object to the victim's daughter's

presence at the prosecution table because

trial counsel were correct in their

assessment that it was not objectionable for

a member of the victim's family to sit at the

prosecution table during the trial. See,

Code of Alabama 1975, § 15-14-56. Thompson

has not demonstrated deficient performance by

trial ccunsel or that, but for the victim's

daughter's presence at the prosecution table, .

the outcome of his trial would have been

different and has, therefore, not established

the necessary prejudice. =

Thompson's trial lawyers were also not

ineffective in failing to object to

references to the victim's family. Thompson

was tried in 1985, two years before the

United States Supreme Court's decision in

Booth v. Maryland (482 U.S. 496) 107 S.Ct.

2529 (96 L.Ed.2d 440) (1987) and’ four years

before that Court's decision in South

Carolina v. Gathers; 57 U.S.L.W. 4629 [490

U.S. 805, 309 S.Ct. 2207, 104 L.Ed.2d 876)

(June 12, 1989). Thompson's trial lawyers —

were not obliged to object based on possible

future developments in the law in order to

render effectivd assistance. Knight ¥. |

Dugger, 863 F.2d \705, 733 (11th Cir.1988);

Elledge v. Dugger, 823 F.2d 1439,/1443 (11th

Cir.), modified on other ground, 833 F.2d 250

(ith Cir.1987), cert. denied (485 U.8; .

1014], 108 Ss. ct. 1487. [99 L.Ed. <d bi cac

(1988) ; Thompson v. Wainwright, (787 F.2a

1447, 1459 n= 6 (11th. Cir. -1986), cert. denied

- (481 U.S. 1042), 107 $.ct: 1986 (95 u.Ed.2d

825) (1987); Funchess v. Wainwright, 722

[772] F.2d 683, 691 (11th Cir.1985), cert.

denied; 475 U.S. 1031 [106 S.Ct. 1242, 89

L.Ed.2d 349] (1986).

Thompson has also not demonstrated that

the prosecutor in this case made "other

improper references to the victim".

Therefore, he has not shown that there is a

reasonable probability of a different outcome

in this case had there been objections to

specific improper references.

ll. Allegation that trial counsel

distanced themselves from

Thompson throughout the trial

In paragraph 19(p) and (n) of his amended

petition in that part of the petition labeled

"Grounds Of Petition", Thompson alleges that ”

his trial counsel were ineffective because

they improperly distanced themselves from

Thompson throughout. the trial as demonstrated

by references to their appointment as trial

counsel and by a reference in closing

argument to the heinousness of the crime.

This allegation is without merit.

Trial counsel told the jury that they were

appdinted before asking the jury vais dire

questions and during opening statements. It

simply is not deficient performance to advise

‘

a jury that trial counsel was appointed to

represent a defendant. Even if it were

deficient performance, Thompson has not

demonstrated that it affected the outcome of

his trial and has, therefore, not met the

prejudice requirement of Strickland.

In closing, McPherson told the jury:

And in conclusion, Mr. Dobson

and I are not condoning the

acts of Michael Thompson in

robbing Maisie Gray, in

kidnapping her, and I want to

say here and now to her

family, that our sympathy

goes out to them. And they

have our sympathy. And this

has been one of the most

difficult tasks that I have

had to do since standing in

front of this bar for 17 .

years. But every defendant,

no matter who he is, no

matter how horrible, how

heinous, how atrocious the

crime he is charged with, he.

is entitled to the very best

of the law and the

Constitution of the United y

States.

(T.R. 799) Thompson alleges this argument by

his trial counsel demonstrated a desire by

counsel to distance themselves from him.

Thompson's expert, Richard Jaffe, testified

that in his opinion this argument was

ineffective. This argument is consistent

with trial counsel's defense strategy to

admit guilt as to the robbery and kidnapping

but to argue lesser culpability because of no

participation in the murder. Further, even

if this argument does dutonstrate deficient

performance by trial counsel, Thompson has

not demonstrated that this brief comment

undermines eentidence in the outcome of

Thompson's trial. No iN hiss has been

demonstrated by Thompson.

12. Allegation that trial counsel

failed to have victim's body

examined for blood or semen

specimens !

In paragraph 19(g) of the amended petition

in the part of the petition labeled "Grounds

Of Petition”, Thompson alleges that his trial

counsel were ineffective because they failed

to seek to have the victim's body examined

for blood or semen specimens which could have

exculpated Thompson. Thompson presented no >

‘evidence in support of this claim at the

evidentiary hearing and this allegation is

without merit.

The victim's nude body was found submerged

in water in an old well after over 20 days of

exposure to the elements. Trial counsel had

obtained copies of the autopsy report on the

victim. Thompson's trial counsel did not

seek examination of the victim's body due to

the fact that they felt that little

information could ,be obtained from the victim

because of this exposure. Based on the

information they had, they did not think it

was necessary to have the body examined for

blood and semen specimens.

Trial counsel also had a strategic reason

for not seeking to have the victim's body

ecnaioue for blood or semen specimens.

According to what Thompson told his trial

counsel, the only male who was present at the

well at the time Maisie Gray was pushed into

it was Thompson. Trial counsel felt that an

examination of the body for semen specimens

. may have revealed that Thompson raped the

victim, as well as having kidnapped and

robbed her. Trial counsel made a reasonable

strategic decision to forgo having the

victim's body examined for pina and semen

specimens. Further, Thompson has again

failed to establish any prejudice from the

failure of trial counsel to have the victim's

body examined and this claim must fail.

13. Allegation that trial counsel

failed to prepare, investigate,

- and-present a penalty phase

strategy

In paragraphs’ 19(k) and (n) of his amended

petition, in that part of the petition

labeled "Grounds Of Petition,” Thompson

alleges his trial counsel were ineffective

because they failed to prepare, investigate,

and present a penalty phase defense strategy

and effectively make a case for saving

Thompson's life and this allegation is

without merit.

Thompson presented the testimony of

Richard Jaffe in. support of this claim. It

was Jaffe's opinion that trial counse] should

have made additional use of Thompson's

addiction and substance abuse, and evidence

of his violent background at the penalty

‘87

phase of his trial. Jaffe testified that

trial counsel were ineffective for failing to

offer-a meaningful mitigation defense. In

his opinion, trial counsel should have

pursued further, through investigation, the

report of the private psychiatrist nived by

them; should have called neighbors and

friends of Thompson's to testify on his

behalf; and should have looked at Thompson's

school and medical records for possible

mitigation. This Court rejects Jaffe's

opinion that trial counsel failed to present

a meaningful penalty phase defense and

credits the testimony of Thompson's trial

counsel on this issue.

Trial counsel knew before trial that there

Was a guilt phase and a penalty phase to a

dapite murder trial and they prepared for

both phases prior to trial. The defenses to

both phases were similar. As at the guilt

phase, trial counsel presented evidence of

Thompson's diminished capacity at the penalty

phase through the testimony of his mother

mes /

regarding his drug and alcohol abuse. Trial

counsel also presented testimony regarding

the effects of Thompson's father's death on

him, in an attempt to garner sympathy for

Thompson.

J In addition, trial counsel spoke with

family members, friends, people in the

community, and anyone Thompson told them to

talk to in an attempt to discover any

possible mitigation. This investigation was

unsuccessful. They also questioned Thompson

about his religioys affiliation and he denied

any. Finally, trial counsel also made a

motion for psychiatric examination and motion

for independent psychiatric examination, both

of which motions were granted by this Court.

Trial oounaei considered these reports and

spoke with Dr. Sleszynski, the private

psychiatrist hired by them. Based on the

reports and their discussions with Dr.

Sieaayauki, they thade a strategic decision

not to present this evidence. This was a

- /

reasonable strategic decision, as is

discussed more fully (in part 16], below.

Thompson has failed to demonstrate that

trial counsel's performance was deficient.

They investigated possible mitigating

circumstances prior to trial, and based on

what they found from this investigation,

developed their penalty phase defense

strategy. Because of the problems in

discovering any witnesses who would come

tommentd to testify on Thompson's behalf, and

because Thompson adamantly refused to testify

before the jury at the sentence phase, trial

counsel presented the only witness in

mitigation that they had, Joyce Parker,

Thompson's mother. This was not deficient

performance by trial counsel.

Thompson has also failed to establish

prejudice. At the evidentiary hearing,

Thompson presented several witnesses to

demonstrate that trial counsel's

investigation was inadequate and as a result

his case was prejudiced. Thompson took the

stand and testified about his drug and

alcohol problems; about his traumatic

upbringing in a violent household; about his

religious experiences; about head injuries he

received as a child; about the effects of his

father's death on him; and about other

evéumette experiences growing up. Thompson

testified that he did not tell his trial

counsel about these experiences because they

did not ask him about it., He also testified

that he was not given the opportunity to

testify at the penalty phase of his trial.

This last contention of Thompson’ sit. %

directly contradicted by Thompson's testimony

at his 1985 trial. (T.R. 847-49) It is also

contradicted by trial counsel's testimony at

the evidentiary hearing. This Court finds

that trial counsel asked Thompson about his

background in an attempt to discover evidence

to present in mitigation and he failed to

reveal to them the information regarding his

background that he testified to at the

evidentiary hearing. The Court finds that

the absence of this evidence at trial is

attributable to Thompson's refusal to testify

and not any deficiency in his counsel's

performance.

This Court also finds that had Thompson

presented this testimony to the jury, there

is no reasonable probability that the outcome

of his trial would have been different,

because of the overwhelming evidence against

Thompson and because there is no reasonable

probability that the jury would have

recommended anything but a sentence of death.

Further, this Court finds that had this

Court or the jury heard the testimony of

Laura Thompson, Alfred Lett, and Jerrv

Fleming at trial, there is no reasonable

probability that the outcome of the trial

would have been different. Laura Thompson's

testimony was not helpful to Thompson's claim

to have extensively abused drugs and alcohol

in that she entrusted her infant child to his

care, including riding in a car driven by

him. Alfred Lett's testimony was not helpful

’

to Thompson's claim to have used drugs and

alcohol extensively in that he described

Thompson as a good worker and further had

only limited contact with Thompson. Reverend

Fleming had no contact with Thompson for many

months preceding the crime. Additionally,

all of these witnesses displayed a strong

bias toward Thompson which undercuts their

credibility. This testimony is far from

compelling and does not create a reasonable

probability that, had it been presented,

Thompson would not have been sentenced to

death.

Joyce Parker's testimony also does not

establish prejudice. Parker testified that

sne was never contacted prior to trial about

testifying on behalf of her son. This

testimony was contradicted by trial counsel.

It is also reflected in Dobson's fee sheet,

Defendant's Exhibit 20, that he spoke with

Thompson's mother prior to trial. This Court

finds that trial counsel's testimony was

credible and that Parker's was not. This

“court also finds that Parker's Rule 20

testimony was merely cumulative with respect

to Thompson's drug and alcohol abuse and the

effects on Thompson of his father's murder.

Parker testified betore the jury at trial as

to that mitigation.

14. Allegation that trial counsel

failed to object to improper

statements of the Blount County

Sheriff during trial

In paragraph 19(u) of his amended petition

in that part of the petition labeled "Grounds

Of Petition," Thompson alleges his trial

counsel were ineffective because they failed

to object to, or seek a mistrial as a result

of, improper statements made by the Blount

County Sheriff at Thompson's trial, in the

presence of the jury, to the effect that a

witness would not “come in and lie" for

Thompson. Thompson testified to this alleged

incident at the evidentiary hearing. This

Court finds as a fact that Thompson was not a

credible witness and that this allegation is

without merit.

Thompson claimed that Blount County

Sheriff J.C. Carr was in the courtroom and

the jury was present when the Sheriff told

him that Rickey Pope, a possible defense

witness, was not coming to testify and said

that Rickey would not come in and lie for

him. Thompson claimed that the judge and

defense and prosecution counsel were in

chambers, out of the courtroom, when this

incident occurred. Thompson claimed that

when the judge and counsel returned to the

courtroom, he told Dobson about this incident

but Dobson did nothing about it.

Trial counsel testified that they had no

recollection of the events that Thompson

described. Dobson testified that he recalled

Thompson telling him about something an

officer said to him but does not recall that

the jury was present. He also testified that

it te not the practice in Blount County, and

this Court finds that it is not the practice

in Blount County, to leave a jury in the

courtroom alone with the defendant. Dobson

Caen

testified, and this Court finds as a fact,

that Thompson also sat at the table farthest

from the jury, so that even if Sheriff Carr

had made the comment Thompson claims that he

did, it was not likely that the jury heard

the comment.

Based on the testimony, and the demeanor

of the witnesses, this Court finds that the

incident described by Thompson did not occur

and that trial counsel's performance was not

deficient in not objecting to a statement and

incident which did not occur.

15. Allegation that trial counsel

failed to object to the trial

court's improper instructions to

the jury

In paragraph 19(m), (w)(iii) and (w) (iv)

of his amended petition in that part of the

petition labeled "Grounds Of Petition,"

Thompson alleged that trial counsel were

ineffective because they did not object to

improper jury instructions. Thompson claims

that this Court improperly instructed the

jury as to: 1) mitigating evidence and

unconstitutionally Limited what could be

\ +

—

Li he Court's

that >OuUrts were burdened by new

procedure about to be

there was nothing wrong

Cimes

past;

aggravating and

Instructions on Mitigation

Thompson first alleges that

improperly instructed the jury

evidence in a way that it

this Court

on mitigating

limited what

mitigation could be considered by the jury

Thompson has not demonstrated what

instructions improperly limited what

mitigation could be considered by the jury

nor has he shown how the instructions were

improper or how they prejudiced his case.

There is no merit to this allegation This

Court specifically instructed the jury that:

The mitigating circumstances

{sic} does not have to be

included in the list I have

read to you in order for it

to be considered by you. [In

addition to the mitigating

circumstances previously

specified, mitigating

circumstances include any

aspect of the defendant's

character or record, and any

of the circumstances of the

offense that the defendant

offers as a basis for a

sentence of life in prison

without narole instead of

death.

This is a correct statement of the law under

Eddings v. Oklahoma, 455 U.S. 104 [102 S.Ct.

869, 71 L.Ed.2d 1} (1982), and Thompson has

failed to demonstrate that he was prejudiced

by trial counsel's failure to object to these

instructions.

‘2. Statement to Jury Regarding

Burden of New Procedures

In paragraph 19(w)(1iii), Thompson claims

his trial counsel were ineffective for

failing to object to this Court's statement

to the jury, prior to instructing them at

sentencing, that in this Court's opinion, the

courts were burdened by new procedures such

as the procedure about to be followed and

that there was nothing wrong with the

procedure used in times past. What this

Court actually said before charging the jury

at the sentence stage was the following:

dee k

rr 5

1/0 seems to me sometimes

wnen I get to studying about

the burden the law places on

the Courts and also on the

jury, especially the jury,

Our system sometimes this

Court feels like it is

getting bogged down to some

extent with procedure,

because the law didn't use to

be that way in times past.

And personally, I didn't find

much wrong with it. Our

framers of our Constitution

didn't find an,ything wrong

ith it back when the

onstitution was adopted.

ut in any event, we have the

procedures that we must

errr

wock

(T.R. 868-69). This Court then proceeded to

ury which charge included an

instruction that "no ... remark or any other

expression that I have made at any time

during this trial, even during the guilt

stage or during this sentence hearing, is

intended to indicate any opinion of what the

—

Oo.

facts are or what the punishment shou

(T.R. 880). This instruction clearly

counteracts any prejudicial effect the quoted

statement may have had. Thompson has not

demonstrated that hls trial counsel were

REE SO LEESON RY Se a

ineffective for failing to object to this

statement.

lll. Weighing of Agqgravating and

Mitigating Circumstances

Instruction

In paragraph 19(w)(iv), Thompson alleges

trial counsel were ineffective because they

failed to object to this Court's jury

instructions regarding the weighing of

aggravating and mitigating circumstances.

Thompson presented no evidence at the

evidentiary hearing as to how these

instructions were improper. He also

presented no evidence that the jury's

recommendation of death was influenced by

these instructions or that they would not

have sentenced Thompson to death absent these

instructions. The Court's instruction was

proper and this allegation is without merit.

16. Allegations that trial counsel

failed to adequately investigate

Thompson's emotional and mental

health problems and limitations

In paragraph 19(h), (s), and (w)(ii) of

his amended petition in that part of the

petition labeled "Grounds Of Petition,"

100

health problems and 1m}

ations; because

fe « + ——_ ~ rr . 2 nN on

failed to seek a prompt hearing on Thomps

an 7. + + _. : art . . -

motion for independent psychiatri

aminat1on; pecause they falled to rocu

an expert to testif t the sentence

the tria and hac: e the\ + } led t v

— Vs + -~ % , 2Cause = ey Leas

= ~ _ - — } + Tbk « ~ - _ = af —~ 7

to the denial of Thompson's motion or a

oS ] | ie So , ‘i Cr lA o ,

>ontinuance so tnat Thompson couid optal

independent psychiatric examination. This

2ailegqation 1S witnout merit.

As was discussed funder "Ineffect

Assistance of Counsel," C. 2. above cr?

counsel conducted an extenslve investiagat

of Thompson's background in an attempt tc

“

discover any possible mitigation. n

addition, they asked for and received bec

lunacy evaluation of Thompson at Taylor

Hardin Secure Medical Facility and a priv

psychiatric examination by an examiner of

their own choosing, Dr. R. A. Sleszynskxkl,

101

_ ‘

RESIS ESE ELE . O

M.D. Based on their investigation and the

results of these reports, trial counsel made

a strategic decision to present evidence of

Thompson's drug and alcohol problems and the

effects of his father's death on Thompson

through lay testimony. Thompson refused to

testify before the jury at sentencing, so his

trial counsel relied on Thompson's guilt

phase testimony and the testimony of his

mother in establishing this mitigating

circumstance.

Trial counsel made a strategic decision

not to use the information contained in Dr.

Sleszynski's report or to have Sleszynski

testify for two reasons. First, they

considered that the information in the report

was open to rebuttal by the Taylor Hardin

report. The Taylor Hardin report established

that Thompson was criminally responsible for

his actions at the time of the crime even

though. at the time of "the alleged offense,

it 1s possible Mr. Thompson was under the

influence of self-administered intoxicants at

102 |

The second re

ise Sleszynski's

jiscussing the r

counsel felt tha

sympathetic to t

on the witness s

their client I

to his lack of s

have harmed the}

by the prosecutil

Trial counsel

using the Sleszy

"wide range of x

assistance," and

demonstrated any

use the report o

his drug and alc

ason trial counsel did _n

report 1s because, afte

eport with Sleszynski, t

t Sleszynskl1 was not

neir client

and his a

tand would be detrimenta

rial counsel feared that

ympathy, Sleszynski coul

r client on cross-examin

's strategic reasons for

nski report were within

easonable professional

Thompson has not

prejudice from failure

r from

ohol probiems further.

103

failure to investigate

Thompson presented two experts with

respect to this issue: Richard Jaffe, a

criminal defense attorney and Dr. Bill

Beidelman, a clinical psychologist. Jaffe

testified that trial counsel were ineffective

for failing to make further use of Thompson's

faddiction] and substance abuse and to have

further argued this mitigation to the jury at

the penalty phase. Trial counsel made a

reasonable strategic decision not to present

further testimony in the form of expert

testimony at the penalty phase of Thompson's

trial. As discussed above, this was a

reasonable strategic decision and as Jaffe

himself acknowledged it is not unusual for

attorneys to disagree about strategy. Jaffe

also acknowledged that trial counsel's

discussions with Sleszynski could have formed

a basis for not using his testimony at trial.

Beidelman was and is a clinical

psychologist licensed to practice in Alabama.

Beidelman was hired by Thompson's present

counsel to interview him. Based on this

104

interview of Thompson; hls psychological

testin Thompson; his review of records

tnis case; and discussion with Thompson's

mother, it was Beidelman's testimony that

Thompson was suffering from alcoholism;

poly-substance abuse; and anti-social

personality disorder in remission. Beidelman

testified that this diagnosis was accurate as

to the time of the crime, as well. These

were the same diagnoses given by Sleszynski

nd one of the members of the Lunacy

Commission that evaluated Thompson.

Thompson's trial attorneys had this

information and Thompson has not shown that

any failure to further investigate this issue

prejudiced this case.

Thompson took the stand at the evidentiary

hearing and testified about many things in

his background, including his alcohol and

drug problems; his violent upbringing;

traumatic experiences in his life; and head

injuries he received as a child. Thompson

discussed these problems with Beidelman and

105

Bejidelman still nad the same diagnoses that

prior examiners of Thompson had. Therefore,

Thompson has not shown any prejudice from his

trial counsel's failure to discover this

information so that they could present it to

an expert to examine.

In paragraph 19(s), Thompson alleges that

trial counsel failed to seek a prompt hearing

on Thompson's motion for an independent

psychiatric examination, and, when the Court

granted the motion 18 days before the trial,

failed to obtain the assistance of an expert

psychiatric witness to testify at the penalty

phase of the trial. Trial counsel made a

motion for psychiatric examination after

discussing the issue with Thompson on January

31, 1985 (CR. 76-76) and this Court granted

that motion on February 5, 1985 (CR. 79-80).

Trial counsel waited for the report from

Taylor Hardin before seeking an independent

examination, which was a reasonable trial

decision. Trial counsel testified and this

Court finds that subsequent to this Court

106

granting their motion for an independent

evaluation trial counsel diligently searched

for and finally obtained an expert to examine

Thompson. For the reasons set out above,

trial counsel chose not to have that expert

testify. Thompson has not shown that trial

counsel's performance was deficient in this

matter or that he was prejudiced by his

lawyers' decision.

In paragraph 19(w)(11i), Thompson alleges

that his trial counsel were ineffective

because they did not object to this Court's

denial of Thompson's motion for a continuance

so that Thompson could obtain an independent

psychiatric examination. Trial counsel moved

for a continuance but their motion was denied

by this Court. "It is well settled that a

continuance in a criminal trial is addressed

to the sound discretion of the court and will

not be disturbed unless clearly abused.

Young v. State, 469 So.2d 683

(Ala.Cr.App.1985); Dawkins v. State, 455

So.2d 220 (Ala.Cr.App.1984); Sparks v. State,

107

450 So.2d 188 (Ala.Cr.App.1985)." Howard v.

State, 506 So.2d 351, 352 (Ala.Cr.App.1986).

Trial counsel's performance was not deficient

because they failed to object further to this

Court's denial of the continuance and

Thompson was not prejudiced since this Court

did not abuse its discretion. Also, there

was no prejudice because Thompson did obtain

an independent psychiatric examination before

Criai.

17. Allegations that trial counsel

failed to object to the

prosecutor's improper and

misleading closing arguments

In paragraph 19(v) of his amended petition

in that part of the petition labeled "Grounds

Of Petition," Thompson alleges trial counsel

were ineffective for failing to object to

certain arguments made [by] the prosecutor in

closing. This allegation is without merit.

Both trial counsel testified that they had

a general policy of not objecting to closing

argument unless it is prejudicial to a client

because objections tend to draw attention to

and emphasize that argument to the jury. It

108

was also McPherson's opinion that objections

during closing arguments can detract from

gaining sympathy for a client from the jury.

These are reasonable strategic reasons for

not objecting to prosecutorial argument.

In order to prevail on a claim of

ineffective assistance of counsel for failure

to object to prosecutorial argument, Thompson

must prove prejudice. The standard for

determining whether prosecutorial argument

entitles a petitioner to relief is whether

there is a reasonable probability that the

statements rendered the proceeding

fundamentally unfair. Thompson alleges ten

instances of improper argument in the

petition.

Thompson's contention, that the

prosecutor's assertions of opinion concerning

the veracity of the defendant's testimony,

i.e., repeated statements that the defendant

had lied to the jury, were improper, is

without merit. There was evidence that

Thompson had changed his story regarding the

109

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114

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rective 2

At ry nearing

testimony of Richard Jaffe, Thompson el

Jaffe's opinion on actions and omissions

trial counsel which were not raised in the

Rule 20 petition. Jaffe's testimony inc]

references to trial counsel's non-objecti

to advising the jury that their verdict was

advisory, to references to prior robberie

and to the failure to instruct on

felony~-murder among other things. Becau

this testimony did not relate to any

allegation of ineffective assistance of

counsel pleaded by Thompson, it cannot

constitute a basis for relief. Thompson

not entitled to relief on any claim not

pleaded with specificity. Temporary Rule

20.6(b), Alabama Rules cf Criminal Procedurés

115

116

DOCUMENT NUMBER 4

DOCUMENT NUMBER 5

t A

r Alabama

ippei.lant Dita nurdae

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ln any way by refusing to grant the motion

for continuance. It should be noted that a

continuance in a criminal case is addressed

to the sound discretion of the trial court,

the exercise of which will not be disturbed

on appeal unless clearly abused. McConico v.

State, 458 So.2d 743 (Ala.Crim.App.1984) ;

Pritchett v. State, 445 So.2d 984

(Ala.Crim.App.1984); Fletcher v. State, 291

Ala. 67, 277 $06.2@ S82 (1973). There has

been no abuse of discretion shown here. See

Beauregard v. State, 372 So.2d 37

(Ala.Crim.App.1979), cert. denied, 372 So.2d

44 (Ala.1979).

Moreover, Ms. Franklin admitted her

prior criminal record during her testimony,

thus completing her impeachment. See C.

Gamble, McElroy's Alabama Evidence, §

145.01(17) (3rd ed. 1977). The appellant

Simply was not prejudiced by the trial

court's refusal! to grant his motion for a

continuance.

128

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ALSTUr Dea A}

(1967); Davis v. State, 457 So.2d 992

(Ala.Crim.App.1984). "The entry of a

mistrial 1s not lightly to be undertaken. It

should be only a last resort, as in cases of

otherwise ineradicable prejudice. Where

error 1S eradicable a mistrial 1s too drastic

and 1S properly denied. cChillous v. State,

405 So.2d 58 (Ala.Crim.App.1981); Van Antwerp

v. State, 358 So.2d 782 (Ala.Crim.App!),

901 (1967)." Woods v. State, 460 So.2d 291,

296 (Ala.Crim.App.1984).

After a hearing on this matter, held

outside the presence of the jury, the trial

judge immediately instructed the jury to

disregard the testimony, polled the jurors

and determined that they would not be

affected by this testimony. (R. 748). The

actions of the trial judge were prompt in

this cause. The matter objected to was not

SO prejudicial that it could not be erased

from the minds of the jury. In such a case

130

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156

DOCUMENT NUMBER 6

ON lh LE A ND OUI ct RO THEI SCN, a A Rall i eR A SLC in A SLOT yet A le es DE MET. et Se mei, 0 8

161

Cor wnat I've dc ne. put tT 7c’ t Kill that

woman. That's all I've got to say.

SUMMARY OF FACTS

This Court finds that on the night

vecembper 10 1984 Cnat the defendant,

Michael Eugene Thompson wnile armed with

22 caliber pistol did proceed to the Ma

Mart in Attaiia, Alabama in which the victir

Maisie Gray was employed. Maisie Gray being

the only employee present at that time. rhe

defendant at gun point, robbed the Majik Mart

by emptying the cash register. The defendant

then forced the victim Maisie Gray to leave

in his company with the victim driving

automobile. The victim remained in the

company of the defendant for quite some time

possibly several hours. The defendant some

time during the ght, possibly in the early

morning hours of the next morning, carried

the victim to a well in Blount County.

According to the defendant's own statements

he kicked or pushed the victim into the wel]

and accerding to his statement, he proceeded

163

from the other well. It was later determined

and testified to by officials from the

Department of Forensic Science that the cause

pat |

)

im waS gunshot wounds.

{

considered all of the

relevant testimony relating to aggravating

stances as et out in Title 13A-5-49 of

the Code of Alabama and all of the mitigating

Circumstances as set out in Title 13A-5-51 of

the Code of Alabama and has also considered

all matters of mitigation in addition to

those enumerated in 13A-5-51.

AGGRAVATING CIRCUMSTANCES

Even though the State of Alabama in

thelr presentation said that they were

relying on the aggravating circumstances that |

the capital offense was committed for the

purpose of avoiding a lawful arrest, or

perfecting an escape therefrom, (13A-5-49

(5) and also the capital offense was

committed for pecuniary gain (13A-5-49) (6),

the Court finds that these two aggravating

165

rT me ,

LLCUNStLanGces w (

this case. Tne

is Q jen i=)

j j f agqgr

~ at, 1D € a

e capital fife

1e@r sentence

efendant was r

riDltal felony o

threat of We

efendant kKnowln

FFfo cs

rrense

acts surrounding

ffense, and the

not apply to the facts of

“"t also finds that there

would support the

ng Circumstances under

lL, .@; 02 GR 7x (1) That

was committed by a person

prisonment. (2) The

DUSly convicted of another

felony involving the use

-e@ to the person. (3) The

created a great risk of

Ss. (7) The capital

d to disrupt or hinder

of any governmental

nereln nas enumerated the

the commission of the

acts are undisputed that

the defendant, on the night of December 10,

984, robbed the Majik Mart and kidnapped the

Victim Maisie Gray and that the victim was

later murdered.

Therefore, this Court does

find as an aggravating circumstances that the

166

capital offense was committed while the

defendant was engaged or was an accomplice

the commission of, or an attempt to commit,

Or flight after committing, or attempting to

commit, rape, robbery, burglary or

This Court has also in the findina oft

facts enumerated the clrcumstances

Surrounding the death of the victim. Tn.

Court 18S cognizant of the fact that in order

to find an aggravating circumstances as being

especially heinous, atrocious or cruel

compared to other capital offenses that the

Circumstances surrounding the death must be

in the mature of tortuous, consciousless or

pitiless. The victim Maisie Gray some time

after having been Kidnapped, was placed in

the trunk of defendant's automobile and

remained in the trunk of the automobile

possibly for several hours while the

defendant contemplated what to do with the

Victim. The victim was shoved into the well

in the dead of night and if she had not been

167

Shot and was left to remain in the well would

have no doubt died from that fact alone.

However, after shooting into the well, the

lefendant was not able to continue shooting

jue to the fact that nis ammunit1on was gone.

The victim was left in the well, at that time

either dead or wounded, while the defendant

went to his nome for the purpose of acquiring

additional ammunition and upon returning,

shot into the well an additional twelve to

1fteen times and the victim's death was

caused by gun shot wounds inflicted by the

jefendant either at the first or later

occasion or both. Considering all of the

evidence and circumstances surrounding the

victim's death, this Court finds that the

jeath of the victim was conscliousless or a

pitiless nomicide which was unnecessarily

tortuous to the victim. It is therefore the

finding of this Court that the capital

s9ffense was especially heinous, atrocious

>ruel compared to other offenses.

168

MITIGATING CIRCUMSTANCES

This Court has considered all of the

mitigating circumstances as enumerated in

Pitle 13A-5-51 and this Court finds no

evidence that would justify a finding of any

29f the enumerated mitigating circumstances.

[he defendant specifically relied on

the mitigating circumstances that the

jJefendant had no significant history of prior

Criminal activity. [nis Court disagrees.

[The Court realizes that the defendant's

record does not contain a significant history

of felony convictions, however, during the

period of time from August, 1977 to May,

1984, the defendant was convicted of nineteen

misdemeanors and one youthful offender

offense for which he was sentenced to three

years and three years probation. some of the

offenses even though misdemeanors, involved

crimes of moral turpitude. The defendant

also made a voluntary statement to the Jailor

while incarcerated on this offense, that he

had committed other armed robberies.

169

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| from tlime to time,) sald defendant, Michael

ugene Thompson, and hls attorneys, Honorable

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and Honorable John Dobson,

being in open Court at each and every stage

and during all of the proceedings in this

ise, now on this the 10th day of May, 198°

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sald upon neir atnhs do say We, he lr

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find the defendant, Michael Eugene Thompson,

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prepare a pre-sentence ret t be report

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time to give the defendant an opportunity to

refute or offer any evidence concerning all.

This being the date to which this

>aused was passed for sentencing of defendan

Michael Eugene Thompson.

The defendant, Michael Eugene

Thompson, being in open Court, and with nis

attorneys Honorable B. J. McPherson and John

Dobson, and the Court having access to the

report of the State Board of Pardons and

Parole.

Thereupon, the defendant, Michael

Eugene Thompson, and with his attorneys,

Honorable B. J. McPherson and Honorable Jonn

Dobson, being in open Court and belng asked

by the Court if he has anything to say why

the sentence of the law should not be

pronounced upon him, says nothing. It is

therefore considered by the Court, and 1s th

judgment and sentence of the Court, that the

defendant, Michael Eugene Thompson, be

punished by death as punishment of his crime

178

Tne defendant was advised that he S

wad

DOCUMENT NUMBER 8

Fifth Amendment to the Constitution of tne

United States:

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or nava forces, or in the Militia, when

in actual service in time of War or public

danger; nor shall any person be subject for

the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in

any criminal case to bé a witness against

himself, nor be deprived of life, liberty or

property, without due process of law; nor

shall private property be taken for public

use, without just compensation. U.S. Const.

Amend. V

180

Sixth Amendment to the Constitution of the

United States:

In all criminal prosecutions, the

accused shall enjoy the right to a Speedy and

public trial, by an impartial jury of the

State and the district wherein the crime

shall have been committed, and which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses in

his favor; and to have the Assistance of

Counsel for his defense. U.S. Const Amend.

VI.

181

Fourteenth Amendment to the Constitution of

the United States:

All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws. U.S. Const. Amend. XIV, §1.

182

DOCUMENT NUMBER 9

Code of Alabama, 1975, Title 15, Criminal

Procedure, Chapter 12, Defense of Indigents,

Article 2, Appointed Counsel, §15-12-21,

Appointment and compensation of counsel --

Trial court:

(a) If it appears to the trial court

that such defendant is entitled to counsel,

that such defendant does not expressly waive

the right to assistance of counsel and that

such defendant is not able financially or

otherwise to obtain the assistance of

counsel, the court shall appoint counsel to

represent and assist the defendant; and it

shall be the duty of such appointed counsel,

as an officer of the court and as a member of

the bar, to represent and assist said

defendant.

(bob) If it appears to the trial court in

a delinquency case, need of supervision case

or other judicial proceeding in which a

juvenile is a party, that said juvenile is

entitled to counsel and that such juvenile is

not able financially or otherwise to obtain

183

the assistance of counsel or that appointed

counsel is otherwise required by law, the

court shall appoint counsel to

represent and assist the juvenile or act in

the capacity of guardian ad litem for such

juvenile; and it shall be the duty of such

appointed counsel, as an officer of the court

and as a member of the bar, to represent and

assist said juvenile.

that the parents, guardian or custodian of a

juvenile who is a party in a judicial

proceeding, are entitled to counsel and such

parties are unable to afford counsel, upon

request the court shall appoint counsel to

represent and assist such parents, guardian

or custodian; and it shall be the duty of

such appointed counsel, as an officer of the

court and as a member of the bar, to

represent and assist said parties.

(d) Counsel appointed in cases

described in subsections (a), (b) and (c)

above, including such cases tried de novo in

184

circuit court on appeal from a juvenile

proceeding, shall be entitled to receive for

their services a fee to be approved by the

trial court. The amount of such fee shall be

based on the number of hours spent by the

attorney in working on such case and shall be

computed at the rate of $40.00 per hour for

time expended in court and $20.00 per hour

for time reasonably expended out of court in

the preparation of such case. The total fees

to any one attorney in any one case, from the

time of appointment through the trial of the

case, including motions for new trial, shall

not, however, exceed $1,900.00, except as

follows: In cases where the original case

involves a capital offense or a charge which

carries a possible sentence of life without

parole, the limits shall be $1,000.00 for

out-of-court work, plus payment for all

in-court work, said work to be billed at the

aforementioned rates. Counsel shall also be

entitled to be reimbursed for any expenses

reasonably incurred in such defense to be

185

approved in advance by the trial court.

Retrials of a case shall be considered a new

case.

(e€) Within a reasonable time after the

conclusion of the trial or ruling on a motion

for a new trial or after an acquittal or

other judgment disposing of the case, counsel

shall submit to the trial court a bill for

services rendered, not to exceed the amount

provided in subsection (da) of this section,

and such bill, if approved by the trial

court, shall be submitted by the clerk of the

court to the state comptroller for audit and

allowance and, if approved by the

comptroller, shall be forwarded to the state

treasurer for payment.

186

Code of Alabama, 1975, Title 15, Criminal

Procedure, Chapter 12, Defense of Indigents,

Article 2, Appointed Counsel, §15-12-22,

Same -- Appeals.

(a) In all criminal cases wherein a

defendant has been convicted of a serious

offense in which an appeal lies directly to

the supreme court or court of criminal

appeals and the defendant expresses his

desire to appeal such conviction, the court

shali cause to be entered upon its minutes a

recital of notice of appeal, and the court

shall then ascertain and make findings in

reference to the appeal concerning those

items listed in § 15-12-20.

(b) If it appears that the defendant

desires to appeal and is unable financially

or otherwise to obtain the assistance of

counsel on appeal and the defendant expresses

the desire for assistance of counsel, the

trial court shall appoint counsel to

represent and assist the defendant on appeal.

The presiding judge of the court to which the

287

189

certiorari 1s granted to the Alabama supreme

court, counsel shall be entitled to bill

separately for all services rendered after

the granting of the certiorari petition, up

to a separate limit of $1,000.00 over and

above any funds received for services

rendered in the court of criminal appeals.

Such counsel shall also be entitled to be

reimbursed for any expenses reasonably

incurred in preparing and handling such

appeal, to be approved in advance by the

appellate court.

(e) Within a reasonable time after the

disposition of the appeal, counsel shall

Submit to the appellate court a bill for

services rendered, not to exceed the amount

provided in subsection (d) of this section,

and such bill, when approved by the presiding

judge or chief justice of the appellate

court, shall be submitted by the clerk of the

appellate court to the state comptroller for

190

awe

191

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.