# Appendix — Thompson v. Alabama

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2810%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1030

## Text

a | @ipramg Court, US.

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No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

MICHAEL EUGENE THOMPSON, Petitioner
Ve

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]
a

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.....

Oo

The Fifth, Sixth and Fourteenth
Amendments to the United States
Constitution.

9. Code of Alabama, 1975. S§ 15-12-:
15-12-22....

YW

DOCUMENT NUMBER 1

THE STATE OF ALABAMA ---- JUDICIAL DEPARTMENT’

[IN THE SUPREME COURT OF ALABAMA

x
ue)
et
rH
+
D

Michael Eugene

4
—
?
Caan

2

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

7

(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

4

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

9

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)"

10

, 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.

I

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

11

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.
Ir

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.
B

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.

17

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,
v.
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.

18

-

or
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

19

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

20

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-

¢

21

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."

23

——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).

>

24

| 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;

26

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.

28

é ae _——

.
a

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

29

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

30

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.

31

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

se

.
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

33

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

37

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

38

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

39

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:

42

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

44

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

45

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

46

\
\
\

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

47

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

49

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

50

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.

51

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.

52

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

55

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

eo

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

57

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

59

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

62

+
} .
: : ‘
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

63

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

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

80

*

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
81

OE

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.

‘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

86

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

89

- /

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

90

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

91

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

92

’

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

93

“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.

94

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

OE

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

r
i

OF

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

a

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.
O
(D

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}

rt

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

Ls

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

lA

A

_ ‘

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

ct
cT

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

ha

ct

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

mh

testin Thompson; his review of records

Q

oO
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

>
,
P
a
m ‘
M =
AL,i a Y
Z
] ,
roy mon?
arTUuguMms.
~
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
I Li loOw] | . re near ’ ‘
oS mmer , + —> eh, —-? la the
lie at y ] , senda ite é t

120

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bq
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s

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-_ +
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ica

125

at

CA

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

Pi

(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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44 | |
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

ry

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

ct

from the other well. It was later determined

and testified to by officials from the
Department of Forensic Science that the cause

rt
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im waS gunshot wounds.

W)
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considered all of the
relevant testimony relating to aggravating

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

W

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

ry

acts surrounding

ffense, and the

ct

ct

ms

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

+
O

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

4

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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Invinced, et —

lrcumstances

>lircumstances
aggravating

uphold the }

death.

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| from tlime to time,) sald defendant, Michael

ugene Thompson, and hls attorneys, Honorable

1B S 1 MUCLKM.
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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.

(c) If it appears to the trial court
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

ba

ee

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2810%3A2. Public record. Not legal advice.