Benjamin Young v. State of Alabama

REL: March 24, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter
Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that
corrections may be made before the opinion is published in Southern Reporter.
Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________
CR-21-0393
_________________________
Benjamin Young
v.
State of Alabama
Appeal from Colbert Circuit Court
(CC-16-339.60)
KELLUM, Judge.
Benjamin Young appeals the circuit court's summary dismissal of
his petition for postconviction relief filed pursuant to Rule 32, Ala. R.
Crim. P., attacking his capital-murder conviction and sentence of death.
CR-21-0393
In February 2018, Young was convicted of murdering Ki-Jana
Freeman by shooting Freeman while he was in a vehicle, an offense
defined as capital by § 13A-5-40(a)(17), Ala. Code 1975, and assault in
the first degree for shooting Tyler Blythe, a violation of § 13A-6-20(a),
Ala. Code 1975. 1 The jury recommended by a vote of 11 to 1 that Young
be sentenced to death. The circuit court sentenced Young to death for the
capital-murder conviction and to 20 years' imprisonment for the assault
conviction. This Court affirmed Young's convictions and sentences. See
Young v. State, [Ms. CR-17-0595, August 6, 2021] ___ So. 3d ___ (Ala.
Crim. App. 2021). The Alabama Supreme Court denied certiorari review.
See Ex parte Young, (No. 1210291, October 21, 2022).
In July 2020, Young filed a Rule 32 petition attacking his capital-
murder conviction and sentence of death. (C. 7-107.) The State filed its
response and moved to dismiss the petition. (C. 120-221.) Young
responded to the State's motion. (C. 222.) In January 2022, the
postconviction court issued a 124-page order summarily dismissing
1Blythe was shot 13 times but survived his injuries. He testified at
Young's trial.
2
CR-21-0393
Young's petition. (R. 640-763.) Young then filed a timely notice of appeal
to this Court. (C. 780.)
Section 13A-5-53.1, Ala. Code 1975
The postconviction petition in this case was filed in compliance with
§ 13A-5-53.1, Ala. Code 1975, and while Young's direct appeal from his
capital-murder conviction was pending in the Alabama appellate courts.
That statute specifically provides that Rule 32.2(c), Ala. R. Crim. P.,
which governs the limitation period in which to file a postconviction
petition, does not apply to death-penalty cases or to any defendant
sentenced to death after August 1, 2017. See § 13A-5-53.1(j), Ala. Code
1975. Pursuant to § 13A-5-53.1(c), Ala. Code 1975, a defendant
sentenced to death shall have 365 days from the date the appellant's first
brief was filed on direct appeal to file a timely postconviction petition.
Also, the circuit court, for good cause, may grant one 90-day extension in
which to file that postconviction petition. See § 13A-5-53.1(d), Ala. Code
1975.
3
CR-21-0393
Based on this Court's records,2 Young's first brief on direct appeal
was filed on April 10, 2019. Young sought and was granted a 90-day
extension to file his postconviction petition. Young's petition was due to
be filed by July 8, 2020, and was timely filed on July 7, 2020. See § 13A-
5-53.1, Ala. Code 1975. See Ex parte Marshall, 323 So. 3d 1188 (Ala.
2020); Stanley v. State, 335 So. 3d 1 (Ala. Crim. App. 2020).
Facts
In August 2021, this Court affirmed Young's capital-murder
conviction and his sentence of death. In our opinion, we summarized the
facts surrounding Young's convictions:
"On March 1, 2016, Young attended a meeting of a gang
called the 'Almighty Imperial Gangsters' held by Thomas
Hubbard, the leader of the gang, in Hubbard's bedroom at his
mother's house on Midland Avenue in Muscle Shoals. Other
members at the meeting were Peter Capote, Dewayne Austin
Hammonds, Riley Hamm III, De'Vontae Bates, and Michael
Blackburn. Two days earlier the Hubbards's house had been
burglarized while Hubbard was attending his grandmother's
funeral. Several items were stolen from the house, including
a television, an Xbox game console, a PlayStation game
console, and some cash. Hubbard reported the burglary to the
Muscle Shoals Police Department. Officer Raymond Schultz
of the Muscle Shoals Police Department, who responded to the
burglary call, testified at trial that Hubbard was upset and
angry about the burglary. (R. 463.)
2This Court may take judicial notice of its own records. See Hull v.
State, 607 So. 2d 369, 371 n. 1 (Ala. Crim. App. 1992).
4
CR-21-0393
"Hubbard told everyone in the meeting on March 1 that
he wanted to find and kill the person who burglarized his
house. Hubbard asked the gang for help. Bates testified that
in the meeting they developed a plan to find out who broke
into Hubbard's house and then 'lure him to a place' and kill
him. (R. 749.)
"Hammonds, who owned the Xbox game console stolen
from Hubbard's house, testified that he told Hubbard at the
meeting that [Ki-Jana] Freeman might have taken the Xbox.
Hammonds knew Freeman from working with him in the
past, and he had seen a Facebook post by Freeman
advertising an Xbox for sale. The gang developed a plan for
Hammonds to meet with Freeman to see if the Xbox Freeman
was offering to sell was Hammonds's Xbox. Although the plan
changed throughout the meeting, the gist of the plan was that
Hammonds (either alone or with Hamm) would meet with
Freeman and, if the Xbox was the one stolen from Hubbard's
house, Hammonds would signal to or call Young and Capote,
who would take Freeman somewhere to interrogate and kill
him. Hammonds testified that Young, Capote, and Hubbard
planned to use Hubbard's SKS rifle and a pistol to kill
Freeman. (R. 815.) Bates testified that besides the SKS rifle,
Hubbard owned a .22-caliber revolver and a .45-caliber
handgun. The State introduced an undated photograph
showing Hubbard standing in his bedroom holding an SKS
rifle.
"Hammonds testified that he sent a message to Freeman
on Facebook Messenger about the Xbox. Hammonds and
Freeman communicated throughout the day about
Hammonds purchasing the Xbox from Freeman. Hammonds's
Facebook Messenger exchange with Freeman was introduced
at trial.
"A little before 9:00 p.m., Young and his girlfriend,
Meagan, along with Capote and his girlfriend, Bridgette, left
Hubbard's house to buy ammunition for the SKS rifle.
5
CR-21-0393
Meagan testified that Young drove Meagan's car to the
Gander Mountain outdoor retail store in Florence. Young
asked Meagan to buy the ammunition, and he told her what
kind of ammunition to buy. The State introduced surveillance
footage from Gander Mountain showing Meagan's car pulling
into the Gander Mountain parking lot. Surveillance footage
from inside the store showed Meagan buying the ammunition
at 9:01 p.m., and a receipt from the store showed that Meagan
bought a box of 7.62X39-millimeter ammunition. The
surveillance footage showed Meagan returning to the car and
the car leaving the parking lot. Meagan testified that after she
bought the ammunition Young drove them back to Hubbard's
house.
"Around the time Young, Capote, Meagan, and
Bridgette got back to Hubbard's house from Gander
Mountain, Hammonds left to go to work at a Wal-Mart in
Florence. At 9:28 p.m., Hammonds sent Freeman a message
asking him to call him, and he gave Freeman his cellular
telephone phone number. Freeman did not call Hammonds
but sent a message asking if Hammonds still wanted the
Xbox. Hammonds testified that he never arranged a meeting
with Freeman and that when he left for work around 9:30
p.m., the plan was for Bates to 'handle it' by setting up
Freeman. (R. 823.) Hammonds said that Young, Capote,
Hubbard, Bates, Hamm, and Blackburn were at Hubbard's
house when he left for work and that the plan was for them to
use 'the white Ram' to 'go kill him.' (R. 826-27.) The State
introduced Hammonds's timecard from Wal-Mart showing
that Hammonds clocked in to work a little before 10:00 p.m.
on March 1 and clocked out a little after 6:00 a.m. the next
morning.
"Around the time Hammonds left for work, Bates sent
Freeman a message on Facebook Messenger asking him if he
had '11 hits' of acid he could purchase. (R. 757-58.) Bates
explained that he volunteered to lure Freeman to the Spring
Creek Apartments by asking Freeman if he could buy some
6
CR-21-0393
acid from him. Bates admitted he knew he was setting up
Freeman so that the others could kill him.
"A little after 10:30 p.m., Young, Capote, Hubbard, and
Hamm left Hubbard's house in a white pickup truck. Young
was driving and Capote was in the front passenger's seat.
Hubbard and Hamm were in the backseat. They had with
them two large black garbage bags. Bates testified that he
stayed at Hubbard's house and continued exchanging
messages with Freeman. Bates relayed all the information he
received from Freeman to one of the gang member's
girlfriends, who was at the house with Bates, and the
girlfriend relayed the information to Young, who was in the
truck on the way to the Spring Creek Apartments.
"The State introduced surveillance video from the
Spring Creek Apartments showing a white four-door Dodge
pickup truck pulling into the apartment complex around
10:47 p.m. Several minutes later Freeman sent Bates a
message: 'Boutta pull in. Just passed Fred's.' Bates asked,
'What kinda car u in cause im in the back.' (C. 479.) Freeman
responded at 10:58 p.m., 'Blue Mustang. Pulling in now. The
back on the right road or the left road.' The surveillance video
shows a blue Mustang vehicle pulling into the parking lot of
the Spring Creek Apartments at 10:58 p.m.
"Haley Burgner, Freeman's girlfriend, testified that on
the afternoon of March 1 she and Freeman were
communicating on Facebook Messenger. Freeman told her he
planned to meet "Dewayne" to sell him an Xbox. (R. 508.)
Freeman told Burgner that Tyler Blythe was with him in case
anything 'goes down.' Later Freeman told Burgner that he
was heading to meet 'Vonte' to get some money that Vonte
owed him. At 10:58 p.m., Freeman sent a message to Burgner
that he was 'getting my cash r[ight] n[ow].' The Facebook
Messenger exchange between Freeman and Burgner was
admitted into evidence.
7
CR-21-0393
"Blythe testified that on March 1 he was with Freeman
when Freeman asked him to ride with him to the Spring
Creek Apartments to meet Bates. Blythe testified that
Freeman pulled into the parking lot of the Spring Creek
Apartment complex and parked the car. Blythe asked
Freeman why they were there, and Freeman told Blythe they
were there to sell some acid strips.
"While they were sitting in Freeman's car in the parking
lot, Blythe and Freeman turned around in their seats to look
at a white pickup truck that had backed up in the parking lot.
Blythe testified that they had just turned back around when
Freeman looked in the rearview mirror and said something to
Blythe and then, Blythe said, 'they started shooting.' (R. 556.)
Freeman and Blythe were each shot several times. Blythe did
not know how many shooters there were, but, he said, 'it
seemed like more than one.' (R. 559.) Freeman was
unresponsive at the scene and was pronounced dead a short
time later. Blythe was taken by ambulance from the scene and
airlifted to Huntsville Hospital, where he underwent surgery
and was hospitalized for seven days.
"Jodi Bohn testified that around 11:00 p.m. on March 1
she was looking out of her apartment window at the Spring
Creek Apartments when she saw a white pickup truck back
out of a parking space and stop next to a curb. Bohn saw the
doors of the truck open. The driver and the front-seat
passenger got out of the truck and started walking toward the
back of the truck. Bohn heard gunfire that she thought came
from more than one weapon, so she moved away from the
window. Bohn described the driver of the pickup truck as 'big
and heavy.' (R. 592.) The record shows that Young was 6 feet
4 inches tall and weighed 270 pounds. (C. 72.)
"In March 2016 Dale Springer lived in an apartment at
the Chateau Orleans apartments in Muscle Shoals. Shortly
after midnight on March 2, Springer went outside to smoke a
cigarette. Springer saw a white Dodge pickup truck with a
double cab pull into the parking lot of the Chateau Orleans
8
CR-21-0393
complex 'pretty fast' and back into a parking space. (R. 624.)
Two men got out of the truck. Springer saw a 'light silver' or
'light gold' four-door automobile pull into the parking lot. The
driver of the truck spoke with someone in the car, and the car
left. The two men from the truck walked away, staying in the
dark area of the apartment complex. Later that morning
Springer heard on the radio that police were looking for a
white Dodge pickup truck involved in a shooting, so Springer
called the police. Law-enforcement officers learned that the
white truck had been stolen earlier that year.
"Det. [Wes] Holland testified that, after interviewing
Burgner the morning after the shooting, he began looking for
Hammonds and Bates. He interviewed Bates on March 3 and
Hammonds on March 4. Hammonds viewed the surveillance
video from the Spring Creek Apartments and identified
Young as the driver of the white truck and Capote as the
passenger. Hammonds told Det. Holland that, after the
shooting, Young told him that there were '15 shots that fired
off' and that he 'took care of it.' (R. 830.) At trial both
Hammonds and Bates testified that they had seen the
surveillance video from the Spring Creek Apartments and
that Young was the driver of the white pickup truck.
"During his interview with Det. Holland on March 4,
Hammonds provided Young's and Capote's names and
Hubbard's name and address. Hubbards' house was located
about one block from Chateau Orleans, where two days earlier
law-enforcement had located the white pickup truck. Det.
Holland and Captain Stuart Setliff of the Tuscumbia Police
Department immediately went to Hubbard's house to set up
surveillance. They saw Young leave the house in a silver car.
When other law-enforcement officers tried to stop Young,
Young 'accelerated to a high rate of speed.' (R. 933.) Young
led officers from several law-enforcement agencies on a chase
across state lines into Tennessee, where Young eventually
wrecked the car and was arrested.
9
CR-21-0393
"Det. Holland took a DNA swab from Young, and
Young's DNA matched the DNA on a soda can found in the
white pickup truck. DNA from a cigarette butt found in the
pickup truck matched DNA from a swab taken from Capote.
"Shawn Settles testified that, from August 2015 to May
2016, he was in the Colbert County jail awaiting trial on a
second-degree-robbery charge and a fraudulent-use-of-a-
credit-card charge. In March 2016 Hubbard, who had been
arrested for Freeman's murder, became Settles's cellmate.
Capote, who had also been arrested for Freeman's murder,
was placed in a nearby cell. Settles testified that Hubbard and
Capote communicated with each other and with Settles about
the details of Freeman's murder. Settles helped Hubbard and
Capote pass notes back and forth to each other, and, rather
than destroy the notes for Hubbard as Hubbard thought
Settles was doing, Settles secretly kept the notes. Settles
testified at trial that he had been convicted of second-degree
robbery and fraudulent use of a debit card and that he was
testifying at trial based on an agreement with the State.
"Based on information from Settles, law-enforcement
officers got a search warrant for property in Franklin County,
Alabama. Law-enforcement officers found an SKS rifle and a
black magazine for the SKS buried in two black garbage bags
on the property."
Young, ___ So. 3d at ___ (footnotes omitted).
Two of Young's accomplices have been convicted for their roles in
the murder of Freeman and the assault of Blythe. Peter Capote was
convicted of capital murder and assault in the first degree and was
sentenced to death. This Court affirmed his conviction and death
sentence on direct appeal. See Capote v. State, 323 So. 3d 104 (Ala. Crim.
10
CR-21-0393
App. 2020). Thomas Hubbard was convicted of capital murder and
assault in the first degree and was sentenced to life imprisonment
without the possibility of parole. This Court affirmed his conviction and
sentence on direct appeal. See Hubbard v. State, 324 So. 3d 855 (Ala.
Crim. App. 2019).
As noted above, two of Young's accomplices testified at Young's trial
-- Austin Hammonds and De'Vontae Bates. Hammonds testified that at
the time of Young's trial he had not been charged with any offense related
to the murder and assault. (Trial R. 840-43.) Bates testified that he had
been convicted of conspiracy to commit murder but was awaiting his
sentence for that conviction. In exchange for Bates's truthful testimony
at Young's trial, Bates said, the State would recommend that his sentence
for that conviction be 20 years. (Trial R. 722.)
Standard of Review
Young filed this postconviction petition attacking his capital-
murder conviction and sentence of death. According to Rule 32.3, Ala. R.
Crim. P., Young bears the sole burden of pleading all of his claims in his
petition.
"The petitioner shall have the burden of pleading and
proving by a preponderance of the evidence the facts
11
CR-21-0393
necessary to entitle the petitioner to relief. The state shall
have the burden of pleading any ground of preclusion, but
once a ground of preclusion has been pleaded, the petitioner
shall have the burden of disproving its existence by a
preponderance of the evidence."
According to Rule 32.7(d), Ala. R. Crim. P., a circuit court may
summarily dismiss a petition:
"If the court determines that the petition is not
sufficiently specific, or is precluded, or fails to state a claim,
or that no material issue of fact or law exists which would
entitle the petitioner to relief under this rule and that no
purpose would be served by any further proceedings, the court
may either dismiss the petition or grant leave to file an
amended petition. Leave to amend shall be freely granted.
Otherwise, the court shall direct that the proceedings
continue and set a date for hearing."
Rule 32.6(b), Ala. R. Crim. P., further provides:
"The petition must contain a clear and specific
statement of the grounds upon which relief is sought,
including full disclosure of the factual basis of those grounds.
A bare allegation that a constitutional right has been violated
and mere conclusions of law shall not be sufficient to warrant
any further proceedings."
In regard to the pleading requirements of Rule 32, Ala. R. Crim. P.,
this Court has stated:
" 'Rule 32.6(b) requires that the petition itself disclose
the facts relied upon in seeking relief.' Boyd v. State, 746 So.
2d 364, 406 (Ala. Crim. App. 1999). In other words, it is not
the pleading of a conclusion 'which, if true, entitle[s] the
petitioner to relief.' Lancaster v. State, 638 So. 2d 1370, 1373
12
CR-21-0393
(Ala. Crim. App. 1993). It is the allegation of facts in pleading
which, if true, entitle a petitioner to relief. After facts are
pleaded, which, if true, entitle the petitioner to relief, the
petitioner is then entitled to an opportunity, as provided in
Rule 32.9, Ala. R. Crim. P., to present evidence proving those
alleged facts."
Boyd v. State, 913 So. 2d 1113, 1125 (Ala. Crim. App. 2003).
We have characterized the burden of pleading in regard to a
postconviction petition as a heavy burden. Hyde v. State, 950 So. 2d 344,
356 (Ala. Crim. App. 2006).
"Although postconviction proceedings are civil in
nature, they are governed by the Alabama Rules of Criminal
Procedure. See Rule 32.4, Ala. R. Crim. P. The 'notice
pleading' requirements relative to civil cases do not apply to
Rule 32 proceedings. 'Unlike the general requirements
related to civil cases, the pleading requirements for
postconviction petitions are more stringent....' Daniel v.
State, 86 So. 3d 405, 410-11 (Ala. Crim. App. 2011). Rule
32.6(b), Ala. R. Crim. P., requires that full facts be pleaded in
the petition if the petition is to survive summary dismissal.
See Daniel, supra. Thus, to satisfy the requirements for
pleading as they relate to postconviction petitions,
Washington was required to plead full facts to support each
individual claim."
Washington v. State, 95 So. 3d 26, 59 (Ala. Crim. App. 2012).
" 'An evidentiary hearing on a [Rule 32] petition is
required only if the petition is "meritorious on its
face." Ex parte Boatwright, 471 So. 2d 1257 (Ala.
1985). A petition is "meritorious on its face" only
if it contains a clear and specific statement of the
grounds upon which relief is sought, including full
disclosure of the facts relied upon (as opposed to a
13
CR-21-0393
general statement concerning the nature and
effect of those facts) sufficient to show that the
petitioner is entitled to relief if those facts are true.
Ex parte Boatwright, supra; Ex parte Clisby, 501
So. 2d 483 (Ala .1986).'
"Moore v. State, 502 So. 2d 819, 820 (Ala. 1986)."
Bracknell v. State, 883 So. 2d 724, 727-28 (Ala. Crim. App. 2003).
The majority of the claims raised by Young involve allegations that
his counsel's performance at his capital-murder trial was deficient.
When reviewing a claim of ineffective assistance of counsel, we apply the
standard adopted by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984).
"First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result
unreliable."
Strickland, 466 U.S. at 687.
Regarding claims that counsel's performance was deficient, this
Court has stated:
14
CR-21-0393
"To sufficiently plead an allegation of ineffective
assistance of counsel, a Rule 32 petitioner not only must
'identify the [specific] acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment,' Strickland v. Washington, 466 U.S. 668, 690, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), but also must plead specific
facts indicating that he or she was prejudiced by the acts or
omissions, i.e., facts indicating 'that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.' 466 U.S.
at 694, 104 S.Ct. 2052. A bare allegation that prejudice
occurred without specific facts indicating how the petitioner
was prejudiced is not sufficient."
Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006).
A postconviction petition may also be summarily dismissed on the
merits of the claims raised in the petition.
" ' "Where a simple reading of the petition for post-conviction
relief shows that, assuming every allegation of the petition to
be true, it is obviously without merit or is precluded, the
circuit court [may] summarily dismiss that petition." ' Bishop
v. State, 608 So. 2d 345, 347-48 (Ala. 1992) (emphasis added)
(quoting Bishop v. State, 592 So. 2d 664, 667 (Ala. Crim. App.
1991) (Bowen, J., dissenting)). See also Hodges v. State, 147
So. 3d 916, 946 (Ala. Crim. App. 2007) (a postconviction claim
is 'due to be summarily dismissed [when] it is meritless on its
face')."
Bryant v. State, 181 So. 3d 1087, 1102 (Ala. Crim. App. 2011).
Last, "[t]his Court may affirm the judgment of the circuit court for
any reason, even if not for the reason stated by the circuit court." Acra
v. State, 105 So. 3d 460, 464 (Ala. Crim. App. 2012).
15
CR-21-0393
At trial, Young was represented by attorneys Ben Gardner, Jr.,
Nathan Johnson, and Leigh Anne Landis.
Guilt-Phase Issues
I.
Young argues that the postconviction court erred in summarily
dismissing his claims that his counsel was ineffective at the guilt phase
of his capital-murder trial because, he says, counsel failed to adequately
investigate and present evidence that he was not guilty. Young raises
numerous claims regarding this issue -- we review each claim
individually.
Initially, Young argues that, when summarily dismissing his
claims, the postconviction court confused the burden of pleading with the
burden of proof and incorrectly dismissed his claims of ineffective
assistance of counsel.
This Court has discussed the distinction between the burden of
pleading and burden of proof in relation to a postconviction proceeding:
" '[A]t the pleading stage of Rule 32 proceedings, a
Rule 32 petitioner does not have the burden of
proving his claims by a preponderance of the
evidence. Rather, at the pleading stage, a
petitioner must only provide "a clear and specific
statement of the grounds upon which relief is
16
CR-21-0393
sought." Rule 32.6(b), Ala. R. Crim. P. Once a
petitioner has met his burden of pleading so as to
avoid summary disposition pursuant to Rule
32.7(d), Ala. R. Crim. P., he is then entitled to an
opportunity to present evidence in order to satisfy
his burden of proof.'
"Ford v. State, 831 So. 2d 641, 644 (Ala. Crim. App. 2001). A
claim may not be summarily dismissed because the petitioner
failed to meet his burden of proof at the initial pleading stage,
a stage at which the petitioner has only a burden to plead.
See Smith v. State, 581 So. 2d 1283, 1284 (Ala. Crim. App.
1991) ('When the State does not respond to a petitioner's
allegations, the unrefuted statement of facts must be taken as
true. Chaverst v. State, 517 So. 2d 643, 644 (Ala. Crim. App.
1987). Further, when a petition contains matters which, if
true, would entitle the petitioner to relief, an evidentiary
hearing must be held. Ex parte Boatwright, 471 So. 2d 1257,
1258 (Ala. 1985).')."
Johnson v. State, 835 So. 2d 1077, 1079–80 (Ala. Crim. App. 2001). For
the reasons stated in this opinion, we conclude that the postconviction
court did not confuse the burden of pleading with the burden of proof.
See Bryant v. State, 181 So. 3d 1087, 1102 (Ala. Crim. App. 2011).
Young further argues that the postconviction court erred in
considering his ineffective-assistance-of-counsel claims individually and
not cumulatively as, he says, the law mandates. "When considering
whether the claims of ineffective assistance of counsel were sufficiently
pleaded, the circuit court correctly considered each claim individually."
17
CR-21-0393
Washington v. State, 95 So. 3d 25, 58 (Ala. Crim. App. 2012). "[T]o satisfy
the pleading requirements of Rule 32, each claim of a petition must
contain a clear and specific statement of the grounds for relief and the
underlying facts that, according to the petitioner, provide the basis for
the grounds for relief. Even ineffective assistance of counsel claims must
be pleaded sufficiently." Taylor v. State, 157 So. 3d 131, 139-40 (Ala.
Crim. App. 2010). Nothing in the postconviction court's order reflects
that it considered the wrong burden of proof or that it violated this
Court's holding in Washington, supra. Thus, this claim is meritless.
The State first asserts that the majority of the issues raised by
Young in his brief to this Court are waived, pursuant to Rule 28(a)(10),
Ala. R. App. P., because Young's brief is substantially the same as the
postconviction petition that Young filed in the Colbert Circuit Court.
The State relies on this Court's decision in Morris v. State, 261 So. 3d
1181 (Ala. Crim. App. 2016), to support this argument. In Morris, we
stated:
"Morris's obligation as the appellant was to present an
argument in support of his position on appeal, and his
argument on appeal is that the circuit court erred when it
dismissed the claims of ineffective assistance of counsel. With
respect to that issue, Morris was required to set out the
reasons supporting his argument that the circuit court erred,
18
CR-21-0393
with citations to legal authorities supporting that argument,
and citation to parts of the record relied on as support for his
claim of error. Morris's argument that the trial court
improperly dismissed the 19 claims of ineffective assistance of
counsel is unsupported by any of the above. The mere
repetition of the claims alleged in the Rule 32 petition does
not provide any analysis of the circuit court's judgment of
dismissal; obviously there was no judgment of dismissal until
after the petition was filed."
Morris, 261 So. 3d at 1194-95. Young's postconviction petition is 104
pages in length and his brief is 98 pages. While some issues raised in
Young's postconviction petition are very similar to the arguments made
on appeal, they are not identical. Indeed, the State does not make this
argument for every issue that Young raises in his brief to this Court.
Accordingly, we will consider Young's arguments on appeal.
A.
Young first argues that his trial counsel was ineffective for failing
to interview Colton Vickery, "a peer of Austin Hammonds," and for failing
to present Vickery's testimony at Young's trial. (Young's brief at p. 58.)
Young pleaded in his postconviction petition that Vickery told an
investigator that he and De'Vontae Bates planned to kill both Freeman
and Blythe. Young pleaded that Vickery's testimony "would have
suggested to the jury that Hammonds was more involved than he
19
CR-21-0393
portrayed and would have controverted Bates's testimony, thus
undermining the State's case." (C. 131.)
When addressing Young's claim that trial counsel was ineffective
for failing to interview Vickery, the postconviction court made the
following findings:
"Young fails to state a valid claim for relief or present a
material issue of fact or law under Rule 32.7(d) of the
Alabama Rules of Criminal Procedure. Testimony from
Vickery that Bates and Hammonds targeted Blythe and
Freeman would have been cumulative to the testimony
presented at trial. Bates testified that he targeted Freeman
for the theft of Hubbard's Xbox and intended Freeman's
death. Hubbard likewise testified that Freeman was
targeted. '[A] petitioner cannot satisfy the prejudice prong of
the Strickland [v. Washington, 466 U.S. 668 (1984)] test with
evidence that is merely cumulative of evidence already
presented at trial.' Benjamin v. State, 156 So. 3d 424, 453
(Ala. Crim. App. 2013).
"Moreover, Young fails to satisfy the specificity and full
factual pleading requirements of Rules 32.3 and 32.6(b) of the
Alabama Rules of Criminal Procedure. Young fails to
sufficiently plead how failure to interview Vickery and
present his testimony fell below any standard of professional
norm. Young suggests that counsel's actions were
unreasonable as compared to those of Capote's and Hubbard's
counsel, because in their trials, Vickery testified. However,
the Court notes that Capote was convicted and sentenced to
death and Hubbard was convicted and sentenced to life
without the possibility of parole. In light of this fact, Young's
failure to explain how the testimony of Vickery would have
changed the result of his own case is significant.
20
CR-21-0393
"Furthermore, Young fails to plead how counsel's
'failure' was not part of a reasonable trial strategy. Calling
Vickery to testify would have exposed the jury to another
witness connected to gang activity. Distancing Young from
further unnecessary, cumulative gang activity is a reasonable
trial strategy in a case predicated on gang activity. Young
likewise fails to plead how counsel's actions actually
prejudiced him in light of the testimony given by Bates and
Hammonds. Thus, Young fails to plead facts that, if true,
would prove either Strickland [v. Washington, 466 U.S. 668(1984),] prong. Such 'bare claims' are insufficient to warrant
further proceedings. Rule 32.6(b), Ala. R. Crim. P."
(C. 657-58.)
To sufficiently plead a claim regarding counsel's failure to call a
witness, this Court has stated that
"a Rule 32 petitioner is required to identify the names of the
witnesses, to plead with specificity what admissible testimony
those witnesses would have provided had they been called to
testify, and to allege facts indicating that had the witnesses
testified there is a reasonable probability that the outcome of
the proceeding would have been different."
Mashburn v. State, 148 So. 3d 1094, 1151 (Ala. Crim. App. 2013).
Summary dismissal of this claim was proper because Young failed
to plead how he was prejudiced, i.e., that there was a "reasonable
probability that the outcome of the proceeding would have been different"
had Vickery testified. Mashburn, 148 So. 3d at 1151.
21
CR-21-0393
Also, several witnesses testified that Hammonds targeted Freeman
because he had stolen an Xbox from Hubbards's house and that the gang
planned to lure Freeman to the parking lot of an apartment complex to
kill him.
"The fact that there were other witnesses available who could
have testified ... does not demonstrate that counsel was
ineffective in choosing the theory and strategy that was
presented at the penalty phase.' Barnhill v. State, 971 So. 2d
106, 116 (Fla. 2007). '[C]omplaints of uncalled witnesses are
not favored in federal habeas corpus review because the
presentation of testimonial evidence is a matter of trial
strategy and because allegations of what a witness would
have stated are largely speculative.' Day v. Quarterman, 566
F.3d 527, 538 (5th Cir. 2009). 'Whether to present certain
testimonial evidence is a matter of trial strategy, and
complaints of uncalled witnesses are generally disfavored.'
Sanders v. United States, 314 Fed. App'x 212, 213 (11th Cir.
2008)."
Walker v. State, 194 So. 3d 253, 291 (Ala. Crim. App. 2015).
Indeed, the evidence against Young was compelling. The State
presented evidence indicating that Young's girlfriend purchased
ammunition on the night of the shootings. Several people who lived
nearby testified that a white pickup truck drove into the area right before
the shooting started; one witness said that the driver, who was big and
heavy, got out and walked toward another car. DNA evidence discovered
on a soda can found in the truck matched Young's DNA. Surveillance
22
CR-21-0393
video showed a white truck come into the complex and a heavy set man 3
exit the driver's side of that truck. Finally, two of Young's accomplices
testified that Young was one of the two men shooting at the two victims.
In a one-paragraph argument in this section of Young's brief, Young
argues that his trial counsel was ineffective for failing to obtain
information from Hammonds's cellular telephone that had been turned
over to police during the investigation. Young's pleadings on this claim
merely consist of the following: "Counsel knew that Hammonds had
identified Freeman as a target and initiated the plan to contact and lure
Freeman to the site where he was killed. Counsel knew that this phone
was obtained by the State yet sought no discovery of its contents." (C.
24.)
In finding that this claim had no merit and was insufficiently
pleaded, the postconviction court stated:
"Young fails to state a valid claim for relief or present a
material issue of fact or law under Rule 32.7(d) of the
Alabama Rules of Criminal Procedure. Information obtained
from Hammonds's phone that he targeted and initiated a plan
to lure Freeman to his death would have been cumulative to
the evidence presented at trial. …
3"Young was 6 feet 4 inches tall and weighed 270 pounds," at the
time of the shootings. Young, ___ So. 3d at ___.
23
CR-21-0393
"Moreover, Young fails to satisfy the specificity and full
factual pleading requirements of Rule 32.3 and 32.6(b) of the
Alabama Rules of Criminal Procedure. Young fails to plead
what specific, relevant, and admissible evidence could have
been obtained from Hammonds's phone. "
(C. 659.)
Young failed to plead what evidence was on Hammonds's cellular
telephone that counsel failed to obtain and failed to plead how he was
prejudiced by the failure to obtain that evidence. Young failed to plead
the full facts to comply with the pleading requirements of Rule 32.6(b),
Ala. R. Crim. P. Therefore, summary dismissal was proper, and Young
is due no relief on this claim.
B.
Young next argues that his trial counsel was ineffective for failing
to develop and present a coherent defense theory. He makes several
different arguments in support of this claim.
1.
First, Young argues that his trial counsel failed to offer an adequate
opening statement. Specifically, Young pleaded that defense counsel's
opening statement was incoherent and that in that statement counsel
told the jury that the defendant had not been present at the shootings
24
CR-21-0393
but had no evidence to support that assertion and did not present any
such evidence at trial.
In summarily dismissing this claim, the postconviction court made
the following pertinent findings:
"It is plain from the face of the record that, as [Ben]
Gardner indicated he would do during his opening, counsel
questioned Hammonds and Bates as to their own involvement
in the murder, motives to lie and point the finger at Young,
plea deals, and ability to identify Young from the Spring
Creek Apartments security footage despite the quality of the
video. And as Young acknowledges in his petition, counsel
introduced the idea that Hammonds and Bates could not be
trusted to give accurate, truthful, and unbiased testimony
during opening statements. Notably, trial counsel returned
to that theory in closing arguments. Moreover, this strategy
served to remind the jury that the prosecutor's passionate
opening statement was not evidence, but rather, what
mattered most was the credibility of the witnesses.
Consequently, it is clear on the face of the record that trial
counsel presented a reasonable defense theory, challenged the
State's theory, and developed the defenses discussed in
opening statements.
"Moreover, Young fails to satisfy the specificity and full
factual pleading requirements of Rules 32.3 and 32.6(b) of the
Alabama Rules of Criminal Procedure. The State's theory of
the case was that Young was present at, and helped commit,
the murder of Freeman. Trial counsel refuted this theory by
asserting Young's innocence: 'He didn't do it. He wasn't
there.' … Young fails to name any witness that counsel could
have called, what questions counsel could have asked that
witness, and if that witness would have been willing to testify.
…
25
CR-21-0393
"Young likewise fails to plead any other reasonable
strategy counsel should have utilized. Three key pieces of
evidence presented by the State against Young were the
testimony of Hammonds, Bates, and their identification of
Young in the security video. To undercut the State's theory
that Young was there and was one of the shooters, it was a
reasonable strategy on counsel's part to undermine the
testimony and credibility of Hammonds and Bates. Young
does not specify any other coherent defense strategy counsel
could have introduced during opening statements."
(C. 661-64.)
Young asserted bare allegations that counsel was deficient in his
opening statement. In fact, his entire pleadings consist of what Young
maintains counsel did wrong. Young failed to plead what a "coherent
defense" or opening would have consisted of or what counsel should have
stated in opening statement. Also, Young did not plead any facts
indicating that there was an alternative defense involving an alibi.
"[The appellant] made bare and conclusory allegations that
counsel failed to put forth a coherent defense theory and to
challenge the State's case during opening and closing
statements, but he failed to allege in his petition what he
believed counsel should have said during opening and closing
statements."
Stanley v. State, 335 So. 3d 1, 43 (Ala. Crim. App. 2020).
Moreover, opening statements are typically matters of trial
strategy. " '[T]here is no constitutional rule that counsel must employ
26
CR-21-0393
any particular rhetorical technique in the opening statement.' Cirincione
v. State, 119 Md. App. 471, 498, 705 A.2d 96, 108 (1998)." Washington v.
State, 95 So. 3d 26, 65 (Ala. Crim. App. 2012).
In regard to Young's claim that his trial counsel failed to keep a
promise made in opening, this Court has stated:
"[N]umerous courts have held that counsel's failure to keep a
promise made in opening statements rarely constitutes
ineffective assistance of counsel. See Hampton v. Leibach, 290
F. Supp. 2d 905, 928 (N.D. Ill. 2001) ('An attorney's failure to
fulfil promises made in opening statement is not often a
successful basis for an ineffective assistance claim. The
decision to change strategy during trial is often forced upon
defense counsel by the vagaries of the courtroom arena.');
United States ex rel. Johnson v. Johnson, 531 F.2d 169, 177
n. 19 (3d Cir. 1976) ('We do not intimate ... that a lawyer of
normal competence could not promise to produce evidence in
this opening statement and then change his mind during the
course of the trial and not produce the promised evidence.').
See also Fayemi v. Ruskin, 966 F.3d 591, 594 (7th Cir. 2020)
('[T]he Supreme Court has never hinted at a per se rule that
defense lawyers must keep all promises made in opening
statement, even if a mid-trial change in circumstances alters
the defense strategy.')."
State v. Lewis, [Ms. CR-20-0372, May 6. 2022] ___ So. 3d ___, ___ (Ala.
Crim. App. 2022).
Based on the cases cited above, we agree with the postconviction
court that there was no material issue of fact or law that would have
entitled Young to relief on this claim. Summary dismissal was proper.
27
CR-21-0393
See Rule 32.7(d), Ala. R. Crim. P. For these reasons, Young is due no
relief on this claim.
2.
Young next argues that his trial counsel failed to adequately cross-
examine key State witnesses.
" '[D]ecisions regarding whether and how to conduct cross-
examinations and what evidence to introduce are matters of
trial strategy and tactics.' Rose v. State, 258 Ga. App. 232,
236, 573 S.E.2d 465, 469 (2002). ' " '[D]ecisions whether to
engage in cross-examination, and if so to what extent and in
what manner, are ... strategic in nature.' " ' Hunt v. State, 940
So. 2d 1041, 1065 (Ala. Crim. App. 2005), quoting Rosario–
Dominguez v. United States, 353 F. Supp. 2d 500, 515
(S.D.N.Y. 2005), quoting in turn, United States v. Nersesian,
824 F.2d 1294, 1321 (2d Cir. 1987). 'The decision whether to
cross-examine a witness is [a] matter of trial strategy.' People
v. Leeper, 317 Ill. App. 3d 475, 483, 740 N.E.2d 32, 39, 251 Ill.
Dec. 202, 209 (2000)."
A.G. v. State, 989 So. 2d 1167, 1173 (Ala. Crim. App. 2007).
To sufficiently plead a claim that counsel was ineffective in cross-
examination of a witness, or lack of cross-examination, a Rule 32
petitioner must plead what "questions would have resulted" in an
adequate cross-examination and further "plead any facts indicating that
counsel's decision not to cross-examine [the witness] was not sound trial
strategy." A.G. v. State, 989 So. 2d at 1173.
28
CR-21-0393
a.
Young first asserts that his trial counsel was ineffective in its cross-
examination of Hammonds because, he says, counsel failed to cross-
examine Hammonds concerning the inconsistencies in his multiple
statements to police, his plans to lie to authorities, and his plan with
Bates to set up Freeman and Blythe. Young further pleaded that counsel
was ineffective for playing Hammonds's videotaped statement to the jury.
When summarily dismissing this claim, the postconviction court
stated:
"The jury certainly heard Hammonds's admission and was
therefore aware that he had lied to police. Moreover, trial
counsel was able to remind the jury of that fact during closing
arguments. Similarly, counsel made sure that the jury saw
Hammonds's videotaped statement, which showed his
demeanor, his pleas for leniency, and his shifting statements.
"….
"Young next claims that counsel were ineffective for
failing to cross-examine Hammonds about his initial plan
with Bates to lie to authorities. …
"Young fails to satisfy the specificity and full factual
pleading requirements of Rules 32.3 and 32.6(b) of the
Alabama Rules of Criminal Procedure. As for the coverup
effort by Bates and Hammonds, Young fails to plead how such
testimony would have made a difference in his trial, especially
considering that Hammonds had already admitted to lying to
the police, he testified that he had lied at Bates's request, and
29
CR-21-0393
he testified that he and Bates had spoken about lying to
police. Moreover, Young fails to plead how Hammonds's
answers would have saved Young from conviction when they
did not save Hubbard from conviction of capital murder. …
"….
"Young next claims that counsel was ineffective for
failing to ask Hammonds about his plan with Vickery to set
up Freeman and Blythe.
"As addressed above, Young fails to state a valid claim
for relief or present a material issue of fact or law under Rule
32.7(d) of the Alabama Rules of Criminal Procedure.
Testimony from Vickery that Hammonds targeted Blythe and
Freeman would have been cumulative to the testimony
presented at trial. Bates and Hubbard both testified that
Freeman was targeted and marked for death. Further,
Hammonds testified that he contacted Freeman directly as
part of the plan to set him up. …
"Finally, Young claims that introducing Hammonds's
videotaped statement was ineffective. … Young's claim
focuses entirely on the alleged negative impact of trial
counsel's strategic decision to play the videotape of
Hammonds's statement and entirely fails to account for the
positive ways in which trial counsel made use of it. As
discussed above, trial counsel was able to reference Young's
statement during closing arguments to point out Young's
inconsistencies, pleas for leniency, and his consistent
preoccupation with avoiding arrest. Counsel made use of that
evidence to portray Hammonds as a liar who would say
anything to stay out of prison. Considering how counsel
actually used this evidence, Young fails to explain why trial
counsel's decision to play the video was not a matter of sound
trial strategy. Similarly Young fails to plead facts showing
that the benefits of the videotape were outweighed by the
disadvantages of doing so. Thus, Young has failed to plead
30
CR-21-0393
facts that, if true, would establish either Strickland [v.
Washington, 466 U.S. 668 (1984),] prong."
(C. 666-72.)
Young failed to plead what counsel should have asked on cross-
examination and did not plead any facts that suggested that counsel's
actions were not strategic. A.G. v. State, 989 So. 2d at 1173. Summary
dismissal of this claim was proper.
Moreover, the trial record shows that the State questioned
Hammonds about his first statement to police and that Hammonds
admitted that he had lied to police. (Trial R. 836.) The State also elicited
testimony from Hammonds that Bates had asked him to lie. The cross-
examination by defense counsel shows that counsel chose to concentrate
on the fact that, of the individuals involved in the shooting, Hammonds
was the only one that had not been charged with any offense, and that,
he thus had a great motivation to lie at Young's trial. (Trial R. 841.)
Also, trial counsel's decision to play Hammonds's videotaped
statement to the jury was clearly a strategic decision. The jurors could
see for themselves by viewing the tape and viewing Hammonds's trial
testimony that he had lied to police. Thus, there was also no material
31
CR-21-0393
issue or fact or law that would entitle Young to relief. See Rule 32.7(d),
Ala. R. Crim. P. Accordingly, Young is due no relief on this claim.
b.
Young next argues that his trial counsel was ineffective for failing
to adequately cross-examine Bates. Specifically, he pleaded that trial
counsel should have cross-examined Bates concerning the terms of his
plea agreement with the State and should have questioned him about his
inconsistent statements to police.
In summarily dismissing this claim, the postconviction court stated:
"Young does not plead how counsel could have
discredited Bates with further questioning. Indeed, Young
does not specify a single question counsel should have asked
to discredit Bates, Bates's response, or how Bates's response
would have further discredited him. Moreover, Young fails to
plead how counsel's alleged failures actually prejudiced him,
especially considering that, since the jury watched the same
video, it could determine the quality of the video and give
Bates's identification of Young its due weight. Thus, Young
has failed to plead facts, that, if true, would establish either
Strickland [v. Washington, 466 U.S. 668 (1984),] prong. …
"Young next claims that counsel failed to question Bates
about the inconsistencies between his first and second
statements to law enforcement. Young claims that if counsel
had questioned Bates about his inconsistent statements to
police, the jury would have learned that Bates and
Hammonds were the only two in the gang that knew Freeman
and Blythe, and that Hammonds and Hubbard had
engineered the shooting.
32
CR-21-0393
"…This testimony would have been cumulative at best,
as Bates had already testified on direct that none of the people
involved in the shooting, other than himself and Hammonds,
knew Freeman. Bates had already testified on direct that
Hammonds and Hubbard engineered the shooting, and that it
was Bates's job to set Freeman up for the shooting. Bates had
likewise already testified on direct that, during his first
meeting with police, he told officers that he was at the
shooting.
"….
"Young next claims that counsel failed to adequately
cross-examine Bates about his plan with Hammonds to
concoct a story to police, which Young claims would have
made Hammonds look just as culpable and devious.
"…Young's claim hinges on the assumption that Bates
would have given a different answer to defense counsel than
he gave on direct. But Young fails to plead facts showing that
Bates would have given a different response. …
"…Young's specific contention that the jury would have
known that Bates's proffer agreement and plea deal were in
evidence without defense counsel's guidance is meritless, as
the jury had the ability to review all pieces of evidence
presented at trial. Though defense counsel did not publish
the deal and agreement to the jury, counsel did introduce
them into evidence, and, thus, they were available to the jury
during deliberations. Moreover, during closing arguments,
defense counsel pointed out to the jury that Bates had lied to
the police, and the jury heard Bates give this testimony on
direct. Young fails to specify any other particular lie counsel
should have chosen to highlight during closing, or why
counsel's decision to address the lies collectively was
unreasonable. Moreover, Young fails to plead how counsel's
strategy actually prejudiced him. Thus, Young has failed to
33
CR-21-0393
plead facts that, if true, would establish either Strickland
prong."
(C. 672-77.)
Young failed to plead what counsel should have asked Bates on
cross-examination; thus, we agree with the postconviction court that
Young failed to plead the full facts necessary to survive summary
dismissal on this claim. See Rule 32.6(b), Ala. R. Crim. P.
Moreover, the trial record shows that before Bates testified a
lengthy hearing was held outside the presence of the jury. Young's
counsel moved to suppress Bates's testimony. The trial court noted that
it had granted Young's motion to suppress all statements that Bates
made on July 7, 2017. On voir dire and outside the presence of the jury,
Young's counsel then questioned Bates about the specific terms of his
plea agreement with the State, and the facts and introduced that
agreement. (Trial R. 712-17.) When the jury was brought back into the
courtroom, the prosecutor questioned Bates extensively about the terms
of his plea agreement with the State, that he had pleaded guilty to
conspiracy to commit murder, that he was currently incarcerated in
Colbert County jail, and that he had an agreement with the State that in
exchange for his truthful testimony the State would recommend a
34
CR-21-0393
sentence of 20 years. (Trial R. 722-24.) The jury was aware of the terms
of the State's plea agreement with Bates; therefore, any further
discussion on that subject would have been repetitive. The record also
shows that the State questioned Bates about his statement to police and
that Bates testified that he lied to police and that he had asked
Hammonds to lie for him. On cross-examination counsel questioned
Bates concerning his ability to identify Young from the video given the
condition of the videotape.
The trial record shows that the issues Young pleaded were not
presented to the jury were, in fact, presented to the jury. Thus, summary
dismissal of this claim was also proper because it failed to present an
issue of fact or law that would entitle Young to relief. See Rule 32.7(d),
Ala. R. Crim. P. Accordingly, Young is due no relief on this claim.
c.
Young next argues that his trial counsel was ineffective for failing
to adequately cross-examine Megan Bryant about Young's drug use on
the day of Freeman's murder.4 Specifically, he asserts that counsel
4InYoung's postconviction petition, this witness's name is spelled
"Megan"; in the trial transcript her name is spelled "Meagan."
35
CR-21-0393
should have questioned Bryant about the fact that Young took drugs
throughout the day and was intoxicated at the time of the shooting.
Young further asserts that counsel should have questioned Bryant about
her losing custody of her child and whether the State had indicated it was
going to help her regain custody.
The postconviction court made the following findings on this claim:
"Young fails to plead how counsel's decision not to
question Bryant on Young's drug use was not a matter of
sound trial strategy. The jury had already heard testimony
that the gang was involved in the drug trade. By refraining
from asking Bryant questions about Young's drug use, the
jury did not hear testimony, offered by Young's own defense
team, that could have tainted their opinion of Young. In the
same vein, had counsel questioned Bryant on her breakup
with Young, Bryant might have testified, as Young
acknowledges, that Young had cheated on her, or, at the very
least appeared to be straying from their relationship. This
information could have painted Young as a dishonest person,
which in turn, could have tainted the jury's opinion of him.
Young fails to plead why no reasonable attorney in counsel's
position would have done the same. …
"Furthermore, Young claims there were indications that
Bryant lost custody of her child, but Young does not provide
any information in support of this contention. Young fails to
plead on what days she lost her child, in what county, and for
what reason Bryant lost custody of her child. Young likewise
fails to plead facts that, if true, would establish that Bryant
could not regain custody of her child without cooperating with
law enforcement and the District Attorney's Office. Thus,
Young fails to plead facts that, if true, would establish either
Strickland [v. Washington, 466 U.S. 668 (1984)] prong."
36
CR-21-0393
(C. 677-80.)
Young failed to plead the full facts in regard to this claim. Young
made a bare assertion that counsel did not question Bryant about
Young's drug use but failed to plead any facts surrounding his supposed
drug use on the day of the shootings. Nor did Young plead any facts
surrounding his assertion that the State was going to assist Bryant with
her child-custody problems.
A review of the trial record shows that defense counsel extensively
cross-examined Bryant about her drug use on the day of the shootings in
a clear effort to discredit her testimony:
"[Defense counsel]: Now, what was it that you were taking?
"[Bryant]: To start, I smoked weed, I took Xanax. In the
evening time, I have a prescription for Remeron, Prednisone,
and Ambien that I would take.
"….
"[Defense counsel]: And just tell us what all you did the rest
of the day. What all drugs did you do that day?
"[Bryant]: I mean, I can't exactly be sure what all drugs I took
that day. I had a very deep addiction and would take anything
that I could get my hands on.
"….
37
CR-21-0393
"[Defense counsel]: That is your testimony that all of the
things that you just testified under oath that you said and did,
heard other folks did, you were high off of drugs when that
happened; is that correct?
"[Bryant]: Yes, sir."
(Trial R. 900-902.)
Counsel's cross-examination of Bryant was both thorough and
extensive. Clearly, counsel chose to focus on the fact that Bryant had
taken many drugs on that day and, thus, that her testimony was suspect.
" ' "[T]he scope of cross-examination is grounded in trial tactics and
strategy, and will rarely constitute ineffective assistance of counsel." ' "
Stanley v. State, 335 So. 3d 1, 37 (Ala. Crim. App. 2020), quoting Bonner
v. State, 308 Ga. App. 827, 828, 709 S.E.2d 358, 360 (2011), quoting in
turn Cooper v. State, 281 Ga. 760, 762, 642 S.E.2d 817, 820 (2007).
For the above reasons, this claim was properly summarily
dismissed, and Young is due no relief.
d.
Young next argues that his trial counsel was ineffective for failing
to adequately cross-examine Shaun Settles because, he says, Settles was
38
CR-21-0393
in possession of critical evidence, a note/letter, indicating that Young was
being used as a scapegoat.5
Settles testified that he was in jail on unrelated charges at the same
time as Capote and Hubbard, that Hubbard was his cell mate, and that
Capote was in a nearby cell. He said that Capote and Hubbard would
pass notes between the two cells and he would hand the notes between
the two men. Settles said that he kept the notes. In one note, Capote
wrote: "Listen gee I killed that nigga but f___ [Young] I'll ask for
immunity if I tell him who killed [Freeman] and tell him [Young] did it."
(C. 36.) Through the contact with Capote and Hubbard and the notes,
Settles led police to the location of the SKS rifle that had been used to
kill Freeman.
In finding that this claim failed to state a material issue of fact or
law that would entitle Young to relief, the postconviction court stated:
"While the letter certainly implicates Capote as one of
Freeman's killers, it does not exonerate Young. Indeed, the
State traveled under an accomplice liability theory for Young,
as it was Capote's SKS bullets that killed Freeman. Just
because Capote admits to killing Freeman in this letter does
not prove that Young was not also there shooting right
alongside Capote.
5InYoung's postconviction petition, this witness's name is spelled
"Shaun"; in the trial transcript his name is spelled "Shawn."
39
CR-21-0393
"…Young claims that if counsel had introduced this
evidence, the jury would have had proof that members of the
conspiracy sought to make Young a scapegoat. On its face,
the letter does not state that Capote would 'frame' Young, nor
is there any indication that Capote would have needed to lie
to place Young at the scene. Young fails to plead, then, how
counsel's failure to introduce the letter, and then cross Settles
on it was not part of a reasonable trial strategy. On direct,
Settles gave limited testimony, briefly explaining that, from
the letters between Capote and Hubbard, he learned the
location of the SKS rifle Capote used to shoot Freeman. This
information was then used by law enforcement to retrieve the
rifle. This testimony is exceedingly narrow, and if anything,
only further implicated Capote, not Young. If counsel had
introduced the letter and crossed Settles on its contents,
counsel could have opened-up Young to damaging testimony
from Settles on cross and on re-direct. Thus, Young fails to
plead facts that, if true, would establish either Strickland [v.
Washington, 466 U.S. 668 (1984),] prong."
(C. 680-82.)
As the postconviction court stated, the note did not establish
Young's innocence. The State maintained throughout the proceedings
that two shooters were involved and that the fatal shot was fired from
the SKS rifle that had been fired by Capote. It is also clear that counsel
was given a copy of this note during discovery. Clearly, counsel made a
strategic decision to not present the note. Accordingly, there was no
material issue of fact or law that would entitle Young to relief under
40
CR-21-0393
Strickland. See Rule 32.7(d), Ala. R. Crim. P. Thus, summary dismissal
of this claim was proper.
e.
Young next argues that his trial counsel was ineffective in its cross-
examination of Investigator Wes Holland because, he says, counsel failed
to adequately question him about the unreliability of the surveillance
video of the parking lot where the shooting occurred.
The postconviction court stated the following:
"Young fails to plead how a reasonable attorney in counsel's
position would have continued to question Investigator [Wes]
Holland about the video's quality despite the already
favorable testimony he gave on re-cross. Indeed, on re-cross,
Investigator Holland testified that he could not tell if the
persons in the video were black or white. Thus, counsel
established the difficulty in making an identification from the
video. Moreover, Young fails to plead how counsel's failure to
further question Investigator Holland actually prejudiced
him. Thus, Young has failed to plead facts that, if true, would
establish either Strickland [v. Washington, 466 U.S. 668(1984),] prong."
(C. 682-83.)
The trial record shows that the surveillance videotape was played
to the jury. On re-cross, Holland was asked about whether he could tell
from the tape if the driver of the vehicle was black or white. Holland
indicated that he could not. (Trial R. 704.) Clearly, the jury could make
41
CR-21-0393
its own assessment concerning the reliability of the video as it viewed
that video. There was no material issue of fact or law that would entitle
Young to relief under Strickland. See Rule 32.7(d), Ala. R. Crim. P. Thus,
summary dismissal was proper, and Young is due no relief on this claim.
3.
Young next argues that counsel was ineffective for failing to present
an adequate closing argument. Specifically, he asserts that in closing
argument trial counsel conceded that Young was guilty of capital murder.
The postconviction court found that this issue was not supported by
the record and that Young thus was not entitled to relief. (C. 683.)
Indeed, the trial record shows that during closing argument defense
counsel stated that based on the burden of proof in a civil case the
evidence might point to Young's guilt but that this was a criminal case
and the burden of proof required proof beyond a reasonable doubt. (Trial
R. 1274.) Counsel did not concede Young's guilt in closing argument;
therefore, this claim is not supported by the record. Accordingly, there
was no material issue of fact or law that would entitle Young to relief.
See Rule 32.7(d), Ala. R. Crim. P.
Moreover,
42
CR-21-0393
" '[c]losing argument is an area where trial strategy is most
evident.' Flemming v. State, 949 S.W.2d 876, 881 (Tex. Ct.
App. 1997). '[S]pecial deference is due to an attorney's closing
argument strategy because it is 'an inherently subjective
task." ' Johnson v. State, 612 So. 2d 1288, 1299 (Ala. Crim.
App. 1992) (quoting Thompson v. Wainwright, 787 F.2d 1447,
1455 (11th Cir. 1986)."
Clark v. State, 196 So. 3d 285, 315 (Ala. Crim. App. 2015). For these
reasons, Young is due no relief on this claim.
C.
Young next argues that his trial counsel was ineffective for not
challenging evidence presented by the State indicating that Young was a
high-ranking gang member involved in the narcotics trade.
The postconviction court stated: "The Court of Criminal Appeals
addressed this issue on direct appeal and found 'no error, much less plain
error, in the circuit court's admission of evidence of Young's gang
affiliation.' Counsel cannot be ineffective for failing to raise a meritless
objection." (C. 684.)
In this Court's opinion on direct appeal, we held that evidence of
Young's gang affiliation and position in the gang was admissible and
relevant to the circumstances surrounding the murder. We stated:
"The evidence at trial showed that Young was a member
of the Almighty Imperial Gangsters. Although Young was a
43
CR-21-0393
top-ranking member of the gang, Hubbard was the leader of
the gang and was above Young in the hierarchy. After
Hubbard's house was burglarized, Hubbard had a 'business
discussion' with the members and told them that he wanted
to find and kill the person who broke into his house. (R. 744.)
He asked the gang for their help. This meeting, which Young
attended, took place in Hubbard's bedroom, where, according
to testimony, Hubbard generally conducted gang-related
business. When Hammonds told Hubbard that Freeman
might be the person who broke into Hubbard's house,
Hubbard and the other members of the gang planned to kill
Freeman. This evidence of Young's gang affiliation -- and
especially his rank in the gang below Hubbard -- was relevant
to show Young's motive for participating in killing Freeman
at Hubbard's behest."
Young, ___ So. 3d at ___. Therefore, the underlying claim that supported
Young's claim of ineffective assistance of counsel had no merit.
" '[B]ecause the underlying claims have no merit, the
fact that [the petitioner's] lawyer did not raise those claims
cannot have resulted in any prejudice to [the petitioner].'
Magwood v. State, 689 So. 2d 959, 974 (Ala. Crim. App. 1996).
See also Commonwealth v. Walker, 613 Pa. 601, 614, 36 A.3d
1, 9 (2011) ('Since all of appellant's underlying claims of trial
counsel's ineffectiveness fail, his claims of appellate counsel's
ineffectiveness are necessarily defeated as well....'); Jackson
v. State, 133 So. 3d 420, 453 (Ala. Crim. App. 2009). Many
other states have applied this same standard. See Walker v.
State, 863 So. 2d 1, 11 (Miss. 2003) ('Because we have held
that the underlying claims are without merit, Walker cannot
show the requisite deficient performance and resulting
prejudice necessary to establish the various claims of
ineffective assistance of counsel.'); People v. Pitsonbarger, 205
Ill. 2d 444, 466, 275 Ill. Dec. 838, 854, 793 N.E.2d 609, 625
(2002) ('Claims of ineffective assistance of counsel at trial and
on direct appeal are evaluated under the standard set forth in
44
CR-21-0393
Strickland [v. Washington,] 466 U.S. at 687, 104 S.Ct. at 2064,
80 L.Ed.2d at 693 [(1984)], which requires the defendant to
demonstrate both deficient performance by counsel and
resulting prejudice. Accordingly, if the underlying claim has
no merit, no prejudice resulted, and petitioner's claims of
ineffective assistance of counsel at trial and on direct appeal
must fail.')."
White v. State, 343 So. 3d 1150, 1174 (Ala. Crim. App. 2019). For these
reasons, Young is due no relief on this claim.
D.
Young next argues that his trial counsel was ineffective for failing
to object to the admission of "unreliable videotape evidence without a
proper foundation." (Young's brief, p. 80.) Specifically, Young pleaded
that counsel should have objected when the videotape made by
surveillance cameras of the parking lot where the shooting occurred was
introduced and admitted into evidence.
The postconviction court found that, on direct appeal, this Court
addressed the underlying issue and found no error, much less plain error;
therefore, there was no material issue or fact or law that would entitle
Young to relief. (C. 690.) In this Court's opinion on direct appeal, we
held that the videotape was admissible under the "silent witness theory"
45
CR-21-0393
because the State had satisfied the requirements of Voudrie v. State, 387
So. 2d 248 (Ala. Crim. App. 1980). See Young, ___ So. 3d at ___. 6
The trial record shows that the State called Mary Sumerel, the
property manager at Spring Creek Apartments, as a witness to establish
the foundation for the admission of the videotape. Sumerel testified that
the apartment complex had video surveillance cameras and that the
cameras were working at the time of the shootings. (Trial R. 530.) She
testified as to when those video cameras were installed, that the video
was stored on a flash drive, and that the video of the shooting had not
been altered in any way while it was in her possession. (Trial R. 534.)
Sumerel's testimony was sufficient to establish a proper foundation for
the admission of the videotape. This Court in Capote specifically found
that the same video was admissible against a claim that there had not
been a proper foundation for its admittance.7 See Capote v. State, 323
So. 3d at 131. Also, the poor quality of the video did not affect its
6See Ex parte Fuller, 620 So. 2d 675 (Ala. 1993), recognizing the
modified Voudrie test.
7Sumerel's testimony in Capote's trial was very similar to her
testimony at Young's trial.
46
CR-21-0393
admissibility but rather its weight. "The quality of the tape was a factor
for the jury's consideration in determining the weight to be given the
evidence, rather than a factor concerning its admissibility." Davis v.
State, 529 So. 2d 1070, 1072 (Ala. Crim. App. 1988).
Because the underlying claim had no merit, summary dismissal
was proper. See White, supra. For these reasons, Young is due no relief
on this claim.
E.
Young next argues that his trial counsel was ineffective for failing
to adequately challenge the admission of evidence of Young's DNA that
had been discovered on a soda can in the white pickup involved in the
shooting. In summarily dismissing this claim, the postconviction court
stated:
"Young claims that trial counsel should have objected to the
DNA evidence on relevance grounds. However, the presence
of Young's DNA inside the vehicle driven by the shooters was
clearly relevant and admissible because it tended to make it
more likely that Young was present at the murder scene,
creating a definite link between Young and the vehicle used
to commit the crime. While Young makes much of the fact
that the DNA evidence cannot pinpoint the time that he was
present in the truck, that is nearly always the case with DNA
evidence and it would not have been grounds for error. …
"….
47
CR-21-0393
"Moreover, Young fails to satisfy the specificity and full
factual pleading requirements of Rules 32.3 and 32.6(b) of the
Alabama Rules of Criminal Procedure. Young fails to
specifically plead any arguments, or authority, that trial
counsel could have relied on to further challenge the
admissibility of DNA evidence."
(C. 691-93.)
First, this claim was properly dismissed because Young pleaded no
grounds upon which the DNA evidence should have been challenged by
his trial counsel. Young failed to plead the full facts to support this claim.
See Rule 32.6(b), Ala. R. Crim. P.
Moreover, Angela Fletcher, a forensic biologist with the Alabama
Department of Forensic Sciences, testified that she conducted DNA tests
on several items that were discovered in the truck involved in the
shootings. The DNA on the soda can, she said, was consistent with
Young's DNA. Also, DNA from a cigarette butt was consistent with
Capote's DNA. On cross-examination, counsel questioned Fletcher about
transferring DNA by coughing or sneezing, made the point that there was
no way to determine how long the DNA had been present, and indicated
that the soda can that contained the DNA could have been moved from
another location and placed in the truck. (Trial R. 1075.) The record
shows that counsel did question the DNA expert. Thus, this claim also
48
CR-21-0393
presented no issue of fact or law that would entitle Young to relief. Thus,
Young is due no relief on this claim.
F.
Young next argues that his trial counsel was ineffective for failing
to object to various items of evidence that, he says, were inadmissible.
" '[E]ffectiveness of counsel does not lend itself to
measurement by picking through the transcript and counting
the places where objections might be made. Effectiveness of
counsel is not measured by whether counsel objected to every
question and moved to strike every answer.' Brooks v. State,
456 So. 2d 1142, 1145 (Ala. Crim. App. 1984). As we recently
stated in Hooks v. State, 21 So. 3d 772 (Ala. Crim. App. 2008):
" ' " 'Decisions concerning whether or when to make
objections at trial are left to the judgment of
counsel.' State v. Suarez, 867 S.W.2d 583, 587 (Mo.
App. 1993). 'Ineffective assistance of counsel is not
to be determined by a post-trial academic
determination that counsel could have
successfully objected to evidence in a given
number of instances.' Id. 'The failure to object to
objectionable evidence does not establish
ineffective assistance of counsel unless the
evidence resulted in a substantial deprivation of
the accused['s] right to a fair trial.' Id. 'Counsel's
failure to object to particular evidence can
constitute mere "trial error" not arising to
constitutional proportions and thus not cognizable
in a post-conviction motion.' Id." '
"Quoting State v. Radley, 904 S.W.2d 520, 525 (Mo. App.
1995)."
49
CR-21-0393
Bush v. State, 92 So. 3d 121, 161 (Ala. Crim. App. 2009).
1.
First, Young argues that his trial counsel failed to object to a
photograph that was admitted in the guilt phase that showed the victim
and his girlfriend because, he says, the photograph constituted
inadmissible victim-impact evidence.
In finding that Young failed to plead sufficient facts to support this
claim, the postconviction court stated:
"Young does not explain how this picture was improper victim
impact evidence. Young fails to plead why no reasonable
attorney would have failed to object to this picture. Moreover,
Young completely fails to plead how counsel's actions
prejudiced him. Indeed, Young makes a conclusory allegation
that counsel's actions were deficient, but does not explain
how, had counsel objected, the outcome of his trial would have
likely been different. Thus, Young fails to plead facts that, if
true, would establish either Strickland [v. Washington, 466
U.S. 668 (1984),] prong."
(C. 694.)
Moreover, "[v]ictim-impact statements typically 'describe the effect
of the crime on the victim and his family.' " Turner v. State, 924 So. 2d
737, 770 (Ala. Crim. App. 2002).
"As for Brooks's claim that his counsel were ineffective for
failing to object to the picture of Brett in a karate uniform and
a picture of Forest and Brett together, as explained above, 'it
is generally agreed that the photograph of the victim of the
50
CR-21-0393
homicide, taken before the alleged murder, is admissible for
the purpose of identification.' Russell [v. State,] 272 So. 3d
[1134] 1165 [(Ala. Crim. App. 2017)] (citations and quotations
omitted). Thus, Brooks's counsel were not ineffective for
failing to object to the admission of those photographs as
victim-impact evidence."
Brooks v. State, 340 So. 3d 410, 465 (Ala. Crim. App. 2020).
"[A]t least one court has noted the rarity of finding a counsel's
performance ineffective for failing to object to photographs:
" 'A competent lawyer familiar with the most
recent pronouncements of this Court on the subject
and familiar with the trial record would not
perceive that admission of the photographs was an
obvious basis for reversal of the appeal. No case is
cited or found where trial counsel was held
ineffective for failing to object to such photographs
or holding that appellate counsel was ineffective
for not asserting error in the admission of such
photographs." '
Thompson v. State, 310 So. 3d 850, 874 (Ala. Crim. App. 2018), quoting
Hall v. State, 16 S.W.3d 582, 587 (Mo. 2000). There was no material issue
or fact or law that would entitle Young to relief. See Rule 32.7(d), Ala. R.
Crim. P. Accordingly, summary dismissal was proper, and Young is due
no relief on this claim.
2.
Young next argues that his trial counsel was ineffective for failing
to object to a hearsay statement made by a police officer that Young was
51
CR-21-0393
"possibly armed with a rifle" when he was arrested. (Young's brief at p.
83.)
In summarily dismissing this claim, the postconviction court stated:
"This statement was not hearsay as it was not an out of court
statement offered to prove the truth of the matter asserted.
This statement was not offered to prove that Young was
armed with a rifle, but rather, was offered to inform the jury
of the officer's mindset when in pursuit of Young. … Even if
this statement was hearsay, Young fails to plead that it was
not otherwise admissible. Young fails to plead how, if counsel
had objected, there is a reasonable probability the entire
outcome of his case would have been different. Thus, Young
fails to plead facts that, if true, would establish either
Strickland [v. Washington, 466 U.S. 668 (1984)] prong."
(C. 694-95.)
The trial record shows that Officer Derrick Thomas of the Loretto
Police Department testified that on March 4, 2016, he was in pursuit of
Young. The following occurred:
"[Prosecutor]: Can you tell the ladies and gentlemen of the
jury what information you had about the pursuit or the
subject involved in the pursuit at that point?
"[Officer Thomas]: We were monitoring the pursuit coming
into Lauderdale County. Our radios allow us to monitor the
Lauderdale County Sheriff's Department. From that, we
learned that it was a silver Ford car. When it was apparent
that it was coming into Lawrence County, their dispatch
contacted ours and they relayed to us that Mr. Young was
wanted for a homicide in Tuscumbia and was possibly armed
with a rifle."
52
CR-21-0393
(Trial R. 960-61.)
Clearly, the above evidence was introduced to show the
circumstances surrounding Young's arrest and was not hearsay.
" ' "Hearsay" is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.' Rule
801(c), Ala. R. Evid. However, ' "[a] statement offered for some
other purpose other than to prove the truth of its factual
assertion is not hearsay." ' Montgomery v. State, 781 So. 2d
1007, 1019 (Ala. Crim. App. 2000) (quoting Thomas v. State,
408 So. 2d 562, 564 (Ala. Crim. App. 1981))."
Capote v. State, 323 So. 3d 104, 127 (Ala. Crim. App. 2020).
Accordingly, any objection that this evidence was hearsay would
have been overruled. "Because the substantive claim underlying the
claim of ineffective assistance of counsel has no merit, counsel could not
be ineffective for failing to raise this issue." Lee v. State, 44 So. 3d 1145,
1173 (Ala. Crim. App. 2009). Summary dismissal was proper, and Young
is due no relief on this claim.
3.
Young next argues that his trial counsel was ineffective for failing
to object to testimony from Officer Steven Benson concerning the
apprehension of Young's codefendants, Capote and Hubbard, at a traffic
53
CR-21-0393
stop. Young's entire argument on this issue in brief consists of the
following statement: "As Mr. Young also pleaded, counsel also failed to
object to irrelevant and inadmissible testimony from Steven Benson
concerning the apprehension of both Capote and Hubbard in a traffic
stop." (Young's brief at pp. 83-84.)
In finding that Young failed to plead sufficient facts to support this
claim, the postconviction court stated:
"Young makes a conclusory claim that this testimony was not
relevant or admissible, but he fails to explain how. Young
fails to plead how this was not part of a reasonable trial
strategy. The testimony presented no harm to Young as it did
not implicate him in any illegal activity. Rather, the
testimony distanced Young from Capote and Hubbard as
Young was not with the pair when they were arrested.
Moreover, Young completely fails to explain how he was
actually prejudiced."
(C. 696.)
Young failed to plead why the testimony concerning the arrest of
two of his codefendants was irrelevant and inadmissible. Nor did he
plead how he was prejudiced by the officer's testimony. Accordingly,
Young failed to meet his burden of pleading the full facts in regard to this
claim and summary dismissal was proper. Rule 32.6(b), Ala. R. Crim. P.
Accordingly, Young is due no relief on this claim.
54
CR-21-0393
4.
Young further argues that his trial counsel was ineffective for
failing to object to the introduction of 34 autopsy photographs of the
victim because, he says, the photographs were prejudicial.
The postconviction court found that this claim was without merit
because this Court, on direct appeal, addressed the admissibility of the
autopsy photographs and held that the photographs were admissible. (C.
697.) On direct appeal, we stated:
"Although unpleasant to view, the autopsy photographs were
relevant and admissible to show the location and the extent
of the wounds to Freeman's body. The State had the burden
of proving beyond a reasonable doubt that Young intended to
kill Freeman 'by or through the use of a deadly weapon while
the victim is in a vehicle.' § 13A-5-40(17), Ala. Code 1975.
Among other things, the photographs showed the number and
the location of the gunshot wounds to Freeman's body. Thus,
the photographs were relevant to show Young's intent that
Freeman be killed and to show that Freeman was seated in
his vehicle when he was shot. We also note that the
photographs of the injured vital organs showed 'only so much
of the surrounding dissected body area' as was 'reasonably
necessary to furnish visual aid to the jury.' See McKee v.
State, 33 Ala. App. 171, 177, 31 So. 2d 656, 661 (1947). For
these reasons, we find no error, much less plain error, in the
admission of the autopsy photographs."
Young, ___ So. 3d at ___.
55
CR-21-0393
When addressing the admission of the same photographs in the
trial of one of Young's codefendants, this Court further stated:
"This Court has thoroughly reviewed all the autopsy
photographs. As Capote contends, photographs that depict
distortions of the subject matter, such as massive mutilation
or extreme magnification, are objectionable. See Malone v.
State, 536 So. 2d 123 (Ala. Crim. App. 1988). Nonetheless,
photographs that accurately depict the nature of a victim's
wounds are admissible even if they are gruesome or
cumulative. Acklin v. State, 790 So. 2d 975 (Ala. Crim. App.
2000). The autopsy photographs were relevant and
admissible to show the extent of the wounds to Freeman's
body. Each photograph was identified and explained to the
jury. Although they are certainly unpleasant to view, they are
not unduly gruesome, and this Court concludes that their
prejudicial effect did not substantially outweigh their
probative value. Therefore, this Court finds no error, much
less plain error, in the admission of the autopsy photographs.
Accordingly, Capote is not entitled to any relief on this claim."
Capote v. State, 323 So. 3d at 126-27.
Counsel cannot be ineffective for failing to raise an issue that has
no merit. Lee v. State, 44 So. 3d at 1173.
Moreover,
"At least one court has noted the rarity of finding a counsel's
performance ineffective for failing to object to photographs:
" 'A competent lawyer familiar with the most
recent pronouncements of this Court on the subject
and familiar with the trial record would not
perceive that admission of the photographs was an
obvious basis for reversal of the appeal. No case is
56
CR-21-0393
cited or found where trial counsel was held
ineffective for failing to object to such photographs
or holding that appellate counsel was ineffective
for not asserting error in the admission of such
photographs.' "
Thompson v. State, 310 So. 3d 850, 874 (Ala. Crim. App. 2018), quoting,
in part Hall v. State, 16 S.W.3d 582, 587 (Mo. 2000). For these reasons,
Young was due no relief on this claim and summary dismissal was
proper.
G.
Young next argues that his trial counsel was ineffective for failing
to conduct any meaningful voir dire relevant to the unique issues
presented by a death-penalty case.
In finding that Young failed to plead the full facts concerning this
claim, the postconviction court stated:
"Young claims that counsel asked 'basic' questions, but he
fails to plead what questions counsel asked that were
problematic. Young likewise fails to specifically plead what
questions counsel should have asked. Finally, Young
completely fails to plead how counsel's alleged failure actually
prejudiced him, considering the State's own questions
concerning the death penalty and the juror's answers. Thus,
Young fails to plead facts that, if true, would establish either
Strickland [v. Washington, 466 U.S. 668 (1984),] prong."
(C. 697-98.)
57
CR-21-0393
As the postconviction court stated, Young failed to plead what
questions counsel should have asked during voir dire that would have
constituted more than "basic" questions. Also, Young failed to plead how
he was prejudiced by counsel's actions during voir dire. Therefore, the
full facts concerning this claim were not pleaded. Rule 32.6(b), Ala. R.
Crim. P.
Moreover, the trial record shows that the prospective jurors were
death-qualified by the circuit court. In fact, this claim was raised on
direct appeal and this Court upheld the death-qualifications questions
posed to the prospective jurors. Young, ___ So. 3d at ___. In regard to
voir dire examination, this Court has stated:
" 'Generally, "[a]n attorney's actions during voir
dire are considered to be matters of trial strategy,"
which "cannot be the basis" of an ineffective
assistance claim "unless counsel's decision is ... so
ill chosen that it permeates the entire trial with
obvious unfairness." '
"Neill v. Gibson, 263 F.3d 1184, 1193 (10th Cir.2001) (quoting
Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997)).
'Counsel, like the trial court, is granted "particular deference"
when conducting voir dire.' Keith v. Mitchell, 455 F.3d 662,
676 (6th Cir. 2006)."
58
CR-21-0393
Washington v. State, 95 So. 3d 26, 64 (Ala. Crim. App. 2012). For these
reasons, summary dismissal of this claim was proper, and Young is due
no relief on this claim.
H.
Young argues that two of his trial attorneys suffered from a conflict
of interest because, he says, his attorney Ben Gardner represented Shaun
Settles's girlfriend, Robyn Green, on an unrelated charge and another of
his attorneys, Nathan Johnson, had previously represented Settles.
Young also pleaded that his attorneys shared information with
Hubbard's investigator.
This portion of Young's petition is confusing and sparse. Young
pleaded that Shaun Settles testified in exchange for a lenient sentence in
an unrelated case and for a more lenient sentence for Green in that same
unrelated case. He further pleaded that Gardner had represented
Settles's girlfriend and that at one point Johnson had represented
Settles. Green did not testify at Young's trial.
In summarily dismissing this claim, the postconviction court stated:
"Young fails to satisfy the specificity and full factual
pleading requirements of Rule 32.3 and 32.6(b) of the
Alabama Rules of Criminal Procedure. To establish a conflict-
of-interest claim, a petition 'must establish that an actual
59
CR-21-0393
conflict of interest adversely affected his lawyer's
performance …. Thus, the mere possibility of a conflict is not
enough to upset a conviction; the [petitioner] must identify an
actual conflict that impeded his lawyer's representation.' …
Young has failed to do this. It is not enough to establish an
actual conflict by simply stating that counsel also represented
someone else who was tangentially connected to this case.
Young likewise fails to plead how this 'conflict' impeded his
representation, especially considering counsel's vigorous
cross-examination of Settles. As for Young's claim that
counsel shared information with Hubbard's investigator,
Young fails to plead what information was shared and how
such action, if true, prejudiced him. Indeed, Young does not
plead how the information given to the investigator was used
against him at trial and impacted its outcome. Rather, Young
makes only a conclusory allegation that counsel erred. Thus,
Young's claim as pleaded is insufficient to overcome
Strickland's strong presumption of effective assistance."
(C. 699.)
Young failed to plead the full circumstances surrounding his
attorneys' prior representations. Indeed, no facts concerning those
representations were pleaded in Young's petition. Nor did Young plead
what counsel supposedly shared with Hubbard's investigator.
"Conclusions unsupported by specific facts will not satisfy the
requirements of Rule 32.3 and Rule 32.6(b). The full factual basis must
be included in the petition itself." Hyde v. State, 950 So. 2d at 356.
Moreover, the trial record shows that before Settles testified,
Young's counsel objected and argued that Settles's testimony should be
60
CR-21-0393
excluded because the State attorneys who signed the agreement with
Settles would be called to testify. The trial record further shows that
neither Gardner nor Johnson represented Settles when he signed the
plea agreement. The plea agreement that was entered into evidence
shows that at the time that the plea agreement was signed, Settles's
attorneys were Jeff Austin and Pride Tompkins. (Trial C. 43-49.)
For these reasons, summary dismissal of this claim was proper.
Accordingly, Young is due no relief on this claim.
I.
Young next argues that his trial counsel was ineffective for failing
to object to the State's lack of corroboration of his accomplices' testimony.
The postconviction court noted that this Court, on direct appeal,
addressed the underlying claim and then found that, even if Young had
objected, there was sufficient evidence to corroborate the testimony of his
accomplices. On direct appeal, this Court held that the testimony of
Hammonds and Bates was corroborated. We stated:
"Even without Hammonds's and Bates's testimony of
Young's involvement in the murder of Freeman and the
shooting of Blythe, the State presented sufficient evidence
tending to connect Young with those offenses.
61
CR-21-0393
"The State presented evidence that two days before
Freeman was murdered Hubbard reported a burglary at his
house on Midland Avenue in Muscle Shoals. The responding
officer said that Hubbard was angry about the burglary, and
Young's girlfriend, Meagan, testified that she and others had
to calm down Hubbard. (R. 896.) Meagan testified that two
days later she was at Hubbard's house when Young and
several others went into Hubbard's bedroom. When Young
came out of the bedroom 10-15 minutes later, he went with
Meagan, Capote, and Capote's girlfriend to the Gander
Mountain store in Florence. Young asked Meagan to buy some
ammunition and he told her what kind of ammunition to buy.
Meagan bought a box of 7.62x39mm ammunition from Gander
Mountain at 9:01 p.m. on March 1. After Meagan bought the
ammunition, Young drove everyone back to Hubbard's house.
"Surveillance footage from the Spring Creek
Apartments in Tuscumbia shows a white Dodge four-door
pickup truck arriving at the apartment complex around 10:47
p.m. on March 1. A blue Mustang arrived about 10-11 minutes
later. The time stamps from the surveillance footage showing
Freeman's blue Mustang arriving at the Spring Creek
Apartments corresponded with the time stamps from
Burgner's Facebook Messenger exchange with Freeman in
which Freeman told her that he was 'getting my cash r[ight]
n[ow]' that 'Vonte' owed him.
"[Jodi] Bohn, who lived at the Spring Creek Apartments,
testified that she looked out of her apartment window and saw
two men get out of a white Dodge pickup truck. The man who
got out of the driver's side was 'big and heavy.' The record
shows that Young is 6 feet 4 inches tall and weighed 270
pounds.
"Law-enforcement officers found several shell casings at
the scene. The State produced evidence that the shell casings
found at the scene were 7.62x39mm -- the same type of
62
CR-21-0393
ammunition Young directed Meagan to buy from Gander
Mountain two hours before Freeman was murdered.
"Shortly after midnight, [Dale] Springer [a resident of
the Chateau Orleans apartments] saw a white Dodge pickup
truck park at the Chateau Orleans apartment complex in
Muscle Shoals near Hubbard's house. He saw a silver or gold
four-door car pull up. The driver of the pickup truck talked
with the driver of the car before the car sped away. The two
men who had gotten out of the pickup truck walked away and
left the truck parked at the Chateau Orleans apartment
complex.
"Meagan testified that when she woke up at Hubbard's
house on March 2, Young 'thought it was best' that they leave
Hubbard's house that day. Meagan testified that Young had
in the past driven a white Dodge pickup truck. DNA from a
grape soda can found in the white Dodge pickup truck parked
at the Chateau Orleans apartment complex matched DNA
from a cheek swab taken from Young.
"Three days after Freeman was murdered law-
enforcement officers were watching Hubbard's house when
they saw Young leave Hubbard's house driving a silver car.
When law-enforcement officers tried to stop Young, Young led
several law-enforcement agencies on a chase through
northern Alabama and into Tennessee.
"Based on information Settles provided them, law-
enforcement officers later found an SKS rifle matching the
description of one that Hubbard owned. Forensic scientists
tested the rifle and found that the 7.62x39mm-shell casings
found at the scene, as well as the projectiles recovered from
Freeman's body during the autopsy, were fired from the SKS
rifle.
"The State's evidence, independent of Bates's and
Hammonds's testimony, tended to connect Young to the
63
CR-21-0393
commission of the offenses for which the jury convicted him.
Thus, the State produced sufficient evidence corroborating
Bates's and Hammonds's accomplice testimony."
Young, ___ So. 3d at ___.
Because this Court addressed the underlying claim and concluded
that there was sufficient evidence to corroborate Young's accomplices'
testimony, there was no material issue of fact or law that would entitle
Young to relief. See Rule 32.7(d), Ala. R. Crim. P. Therefore, summary
dismissal was proper. For these reasons, Young is due no relief on this
claim.
J.
Young next argues that his counsel was ineffective for failing to
object to his conviction for shooting into a vehicle when that offense was
part of the capital offense of shooting into an occupied vehicle. The
postconviction court found that this claim was without merit based on
the record. (C. 703.)
The trial record shows that Young was convicted of murder made
capital because it was committed by shooting into an occupied vehicle, of
assault in the first degree, and shooting or discharging-a-firearm into an
occupied vehicle. (Trial C. 344.) However, before sentencing, the State
64
CR-21-0393
moved that the discharging a firearm conviction be set aside because, it
argued, that crime was encompassed in the capital-murder conviction.
(Trial C. 346-47.) The circuit court granted the State's motion. (Trial
C. 348.) Thus, Young could not establish any prejudice in regard to this
claim because the conviction was vacated. This issue presented no
material issue of fact or law that would entitle Young to relief. See Rule
32.7(d), Ala. R. Crim. P. Therefore, Young is due no relief on this claim.
K.
Young next argues that his trial counsel was ineffective for failing
to pursue remedies when a juror indicated his fear of participating as a
juror on Young's case. The pleadings on this claim consist of one
paragraph. (C. 55.)
The postconviction court made the following findings:
"Though trial counsel moved for a mistrial, Young claims that
if trial counsel had made an effort to gather more information
from juror B.M., counsel could have presented a more
'coherent basis' for the motion being granted.
"….
"Young fails to plead what questions counsel should
have asked, what answers juror B.M. would have given, and
how those answers would have supported a motion for
mistrial. … Without the above information, Young cannot
65
CR-21-0393
show that a mistrial was necessary to prevent 'manifest
injustice.'
"… Regardless of counsel's strategy, however, Young
fails to plead how such decision actually prejudiced him. Thus,
Young fails to plead facts that, if true, would overcome
Strickland's strong presumptions. Such 'bare claims' are
insufficient to warrant further proceedings. Rule 32.6(b), Ala.
R. Crim. P."
(C. 703-706.)
The trial record shows that on the morning of the last day of trial,
a matter was brought to the circuit court's attention. The following
occurred:
"THE COURT: Let the record reflect that Juror [B.M.] and
Bailiff Ernest Bechard, both just came in the courtroom.
"It is my understanding -- the Court's understanding that you
noticed some suspicious activity in your neighborhood last
night which made you uneasy and concerned you that there
may be some relation to this case. You appropriately
contacted the sheriff's department, which is absolutely what
you should have done. And it is also the Court's
understanding that the sheriff's office took your call seriously
and investigated and dealt with your concern and your call.
And at this time, I have asked the Sheriff to come in here and
explain to you what was done in response to the conduct.
"….
"[Sheriff Williamson]: I didn't want to talk to you last night
because I didn't want to be unethical or get in the way of these
folks that have worked hard on this case. So what I wanted
to talk to you about was, we checked this guy out, and you did
66
CR-21-0393
good by getting us a tag number. And what we think that --
we don't think it has anything to do with this case. We think
that it has to do with the break-ins that are going on out there
right now. So I just wanted you to feel at ease so that you
could do your job today."
(Trial R. 1349-51.) The circuit court then asked juror B.M. if the sheriff's
comments had put his mind at ease. B.M. indicated that they did. (Trial
R. 1351-52.) There is no indication that this juror was in fear because
he was serving on Young's jury. This claim was not supported by the
record and was properly summarily dismissed. See Rule 32.7(d), Ala. R.
Crim. P. Accordingly, Young is due no relief on this claim.
L.
Young next argues that his trial counsel was ineffective for failing
to pursue "adequate remedies" when a juror slept through portions of the
trial. The sparse pleadings on this claim consist of one paragraph. (C.
55.)
In summarily dismissing this claim, the postconviction court made
the following findings:
"Young fails to satisfy the specificity and full factual
pleading requirements of Rules 32.3 and 32.6(b) of the
Alabama Rules of Criminal Procedure. Young fails to plead
why remedial measures were needed. Moreover, Young fails
to plead what remedial measures counsel should have taken
and on what grounds those requested remedial measures
67
CR-21-0393
would have been granted. Furthermore, Young fails to plead
why a mistrial was necessary to prevent 'manifest injustice.'
… Young's claim amounts to 'counsel should have done
something' -- but Young does not plead what counsel should
have done. Finally, Young fails to plead how there is a
reasonable possibility that, but-for counsel's failure, the
outcome of his trial would have been different. Such 'bare
claims' are insufficient to warrant further proceedings. Rule
32.6(b), Ala. R. Crim. P."
(C. 707.)
The record of Young's trial shows that the following occurred:
"[Defense counsel]: For the record, there's been a juror this
morning, he's the gentlemen to your right on the front row.
His eyes have been closed more than open. I wanted to note
that for the record.
"THE COURT: Well, I just want to know, would you like to
take any action or make any motion?
"[Defense counsel]: Not at this time, but after the break after
lunch, we may be doing so."
(Trial R. 1050-51.)
First, Young pleaded that trial counsel should have moved for
"remedial action." However, he failed to plead what he considered
"remedial action." Nor did Young plead the identity of this juror. The
full facts were not pleaded regarding this claim; thus, summary dismissal
was proper. Rule 32.6(b), Ala. R. Crim. P.
68
CR-21-0393
Moreover, at least one court has held that not moving to replace a
sleeping juror may be considered a sound strategic decision. The Utah
Court of Appeals in State v. Marquina, 437 P. 3d 628, 638 (Utah App.
2018), stated:
"[W]e must presume Marquina's defense counsel's conduct fell
'within the wide range of reasonable professional assistance.'
[State v.] Calvert, 2017 UT App 212, ¶ 22, 407 P.3d 1098[(2017)] (quotation simplified). Jury selection and retention
are 'more art than science,' [State v.] Litherland, 2000 UT 76,
¶ 21, 12 P.3d 92 [(2000)], and Marquina's counsel was able to
observe the jurors, including the alternate, over the course of
three days. Everything from the jurors' demeanors to their
reactions to testimony may have played a role in counsel's
decision not to insist on replacing the sleepy juror. He may
have simply preferred the jury he had. Even if this choice
seems 'counterintuitive,' counsel may have reasonably
thought that a sleepy juror would 'overcompensate' and would
be reluctant to convict. See id. ¶ 22 (quotation simplified).
Moreover, counsel's choices are viewed objectively; '[t]he first
prong of the Strickland standard ... requires that a defendant
rebut the strong presumption that under the circumstances,
the challenged action might be considered sound trial
strategy.' Id. ¶ 19 (emphasis added) (quotation simplified). …
Because Marquina has not demonstrated his counsel was
objectively deficient, he has not established ineffective
assistance of counsel."
State v. Marquina, 437 P.3d 628, 638 (Utah App. 2018). For the foregoing
reasons, this claim was properly summarily dismissed. Therefore, Young
is due no relief on this claim.
69
CR-21-0393
II.
Young next argues that the State violated Brady v. Maryland, 373
U.S. 83 (1963), by failing to disclose exculpatory evidence. Specifically,
he argues that the State failed to disclose the contents of Hammonds's
cellular-telephone records and failed to disclose the plea agreement that
it had with Robyn Green, Shaun Settles's girlfriend.
The postconviction court found that this claim was procedurally
barred because it could have been raised at trial or on appeal but was
not. Rule 32.2(a)(3) and Rule 32.2(a)(5), Ala. R. Crim. P. 8 The court also
found that this claim was not sufficiently pleaded because Young failed
to plead what the contents of Hammonds's cellular telephone would show
and/or whether those contents were favorable to Young's case. He also
failed to plead how the plea agreement with Green was suppressed, given
that Young also pleaded that one of his attorneys, Ben Gardner, signed
Green's plea agreement. (C. 757-59.)
8This Court has frequently held that a Brady claim may be
procedurally barred in a postconviction proceeding. See Madison v.
State, 999 So. 2d 561 (Ala. Crim. App. 2006); Hyde v. State, 950 So. 2d
344 (Ala. Crim. App. 2006); Duncan v. State, 925 So. 2d 245 (Ala. Crim.
App. 2005); Barbour v. State, 903 So. 2d 858 (Ala. Crim. App. 2004).
70
CR-21-0393
In the postconviction petition, Young pleaded, in part:
"Hammond's phone and contents were critical to impeaching
Hammonds at trial. Hammonds likely used this phone to
coordinate the setup of Freeman and to contact De'Vontae
Bates to concoct a fake story about their involvement in the
case."
(C. 100.) (emphasis added). Young's entire pleadings on this claim are
based on speculation. " 'Speculation is not sufficient to satisfy a Rule 32
petitioner's burden of pleading.' " Peraita v. State, [Ms. CR-17-1025,
August 6, 2021] ___ So. 3d ___, ___ (Ala. Crim. App. 2021), quoting
Mashburn v. State, 148 So. 3d 1094, 1125 (Ala. Crim. App. 2013).
Moreover, "to sufficiently plead a Brady [v. Maryland, 373 U.S. 83(1963)]; Giglio [v. United States, 405 U.S. 150 (1982)] claim, a petitioner
must allege facts that, if true, would establish that the prosecution
suppressed evidence that was favorable to the defendant and material."
Reynolds v. State, 236 So. 3d 189, 201 (Ala. Crim. App. 2015). Young did
not plead how Green's plea agreement was suppressed. As the
postconviction court stated: "Young affirmatively acknowledges in his
petition that trial counsel [Gardner] was aware of the plea agreement
and had actually signed it. Considering these facts, it is clear on the face
of the petition itself that no Brady suppression occurred." (C. 759.)
71
CR-21-0393
Thus, summary dismissal of this claim was proper, and Young is due no
relief on this claim.
III.
Young next argues that he was deprived of his right to a fair trial
when juror W.F. failed to disclose during voir dire examination that he
knew Investigator Wes Holland and Officer Stuart Setliff. He further
argues that counsel was ineffective for failing to object when juror B.M.
had contact with the Colbert County Sheriff's Office.
The postconviction court made the following findings on this claim:
"Young claims that W.F. knew Investigator [Wes]
Holland and Officer [Stuart] Setliff but fails to plead how the
three knew each other. Young fails to plead, for instance, if
the three were friends or if the three had casually met. Young
likewise fails to plead that W.F. purposefully withheld this
information. Indeed, if W.F. had met the men briefly a few
years ago, he may not have remembered meeting them.
Moreover, Young claims that a new trial is warranted where
the defendant 'might have been prejudiced,' but Young fails to
plead how he might have been prejudiced. … It is not enough
to plead that W.F. knew these officers -- Young must also
plead how that fact, if true, might have actually prejudiced
him. For these reasons, this claim is summarily dismissed.
"Young next claims that he was deprived of an impartial
jury because of juror B.M.'s contact with the Colbert County
Sheriff's Office.
"This claim fails to satisfy the specificity and full factual
pleading requirements of Rules 32.3and 32.6(b) and it fails to
72
CR-21-0393
state a valid claim for relief or present a material issue of fact
or law under Rule 32.7(d) of the Alabama Rules of Criminal
Procedure. After the guilt-phase verdict, juror B.M. contacted
the Sheriff's Office about suspicious activity on his street that
he was concerned was linked to Young's case. In a colloquy
with the trial court, Sheriff Williamson said:
" 'I didn't want to talk to you last night because I
didn't want to be unethical or get in the way of
these folks that have worked hard on this case. So
what I wanted to talk to you about was, we checked
this guy out, and you did good by getting us a tag
number. And … we don't think it has anything to
do with this case. We think that it has to do with
the break-ins that's going on out there right now.
So I just wanted you to feel at ease that you could
do your job today.'
"(R. 1351.) When the Court asked juror B.M. if 'the Sheriff's
explanation put [his] mind at ease,' B.M. responded, 'correct.'
"Young claims that the trial court improperly disallowed
B.M. from saying anything further, and did not identify the
deputies involved, the license plate number, and Sheriff
Williamson's role. The trial court did not forbid B.M. from
saying anything further, but rather, cautioned juror B.M. on
his words. Young also claims that the trial court's statement
was improper ex parte communication that was not fully or
adequately disclosed to counsel. The claim is meritless on its
face, as the attorneys were in the courtroom for this
discussion. "
(C. 760-62.)
While Young pleaded the name of the juror who, he says, failed to
disclose that he knew two officers, he pleaded no other facts as to how
73
CR-21-0393
W.F. supposedly knew the two police officers. Young failed to plead the
full facts to support this claim. Rule 32.6(b), Ala. R. Crim. P.
Moreover, as noted above, juror B.M. had no improper contact with
law enforcement. B.M. telephoned the police when there was a
disturbance in his neighborhood late one night during the trial. There is
absolutely nothing that suggests that that disturbance was related to
Young's case. This claim presented no material issue of fact or law that
would support relief. See Rule 32.7(d), Ala. R. Crim. P. Therefore, Young
is due no relief on this claim.
Penalty-Phase Issues
IV.
Young next argues that he was deprived of the effective assistance
of counsel at the penalty phase of his capital-murder trial.
To properly evaluate the claims pleaded by Young, we must
consider the mitigation evidence that his counsel did present during the
penalty-phase hearing. " 'Although petitioner's claim is that his trial
counsel should have done something more, we first look at what the
lawyer did in fact.' " Ray v. State, 80 So. 3d 965, 979 (Ala. Crim. App.
74
CR-21-0393
2011), quoting Chandler v. United States, 218 F. 3d 1305, 1320 (11th Cir.
2000).
At the penalty phase, defense counsel presented the testimony of
Young's maternal aunt, Treena Sidebottom, and Dr. Carol Walker, a
psychologist who evaluated Young and who had done extensive research
into Young's background and upbringing.
Sidebottom testified at trial that her sister, Debra Louise Syesta, 9
was Young's mother, that her sister ran away when she was 16 years old
because of the abuse in their household, that when Debra was pregnant
with Young she was in jail, that when she gave birth to Young her father
brought Debra and Young back to Florence, that Debra was an addict,
and that Debra was frequently in trouble with law enforcement and was
in and out of jail, and that Debra tried to commit suicide several times
and that in one instance Young found her on the bathroom floor
unresponsive and called for help. (Trial R. 1416.) When asked to
described Young's home life, Sidebottom testified:
"[B]efore Johnny Vandiver was in the picture, [Debra] was in
government assistance and her home was always clean.
[Young] was thriving and doing okay. They were struggling.
9In Young's postconviction proceedings his mother's name is spelled
"Debra"; in the trial transcript her name is spelled "Deborah."
75
CR-21-0393
They didn't have a whole lot of money, but when I would go
over there things -- things appeared to be okay.
"But when Johnny Vandiver came into the picture,
that's when they got kicked out of the Section 8 or government
assistance, and that's when I started noticing -- they moved
from government assistance and Section 8 house, and then
they moved into another house. And they moved in, and it
was just dirty. And I asked [Debra] if I could help her clean,
and she said no. But basically they just moved in the house
and it was already dirty. But I tried to talk to her about it,
but she didn't want to talk about it. So that's when I started
noticing the house wasn't -- the house was not clean, that
[Young] was sometimes not clean, that [Young] sometimes
didn't have what he needed.
"Sometimes they would ask -- Debbie would ask for
money, although we weren't real sure where the money would
go to. She said they were turning the utilities off, or they
didn't have money to eat or whatever. So what I tried to do in
the alternative was take [Young] out of the house and try to
help him and clean his clothes and let him spend some time
with me sometimes. And I would try to take [Debra] to the
grocery store and let her buy food so that she wouldn't use
that money to buy things. They -- Debbie and Johnny would
do drugs and alcohol, and that's where their money was going.
"….
"My earliest recollection of when [Young] was probably
about three or four years old, and for some reason they had a
Chucky doll -- the Chucky doll like from the movie. And
[Young] was scared to death of that doll, and Johnny would
just terrorize him just relentlessly with that doll. And I got
on to him, and I couldn't understand why someone would
make a child so scared and be so hurtful. I didn't understand.
And not long after that I found out that he was a sex offender
76
CR-21-0393
and that he had done time in prison for sexual -- sexual abuse
of a child."
(Trial R. 1428-32.) She further testified that she had seen Vandiver
verbally abuse Young. (Trial R. 1432.)
Dr. Walker testified that she interviewed Young for over 16 hours
and that she had conducted extensive research into his background and
upbringing by talking to many of his relatives and obtaining many of his
records. She testified that she looked at Young's juvenile-court-
adjudication records and that included partial records of Department of
Human Resources services. She also evaluated jail-incident records from
the Colbert County jail and performed cognitive testing on Young and did
a neurological assessment and an academic assessment on him. She then
reviewed documentation of his stepfather, Johnny Vandiver's status as a
registered sex offender. (Trial R. 1452-53.) She said that she
interviewed Treena Sidebottom, Young's maternal aunt, for 11 hours;
Matt and Nicole Syesta, Young's maternal aunt and uncle, for 2 hours;
Alice Syesta, Young's maternal grandmother, for 2 hours; and Carolyn
77
CR-21-0393
Parrot, William Young's sister, 10 for one hour. (Trial R. 1455.) Dr.
Walker further testified: "I wasn't able to speak with some family
members because they refused to talk with me. They didn't want to be
involved." (Trial R. 1456.) Dr. Walker testified:
"[Dr. Walker]: According to what I was told, [Young] was
diagnosed with ADHD, and his behavior was consistent with
that. He was impulsive. He was hyperactive. And Carolyn
Parrot said he didn't seem like he was fearful of anything, and
that's consistent with the impulsivity of ADHD. Everybody
described him as extremely close to his mother, and even
though she was -- she was abandoning him for all practical
purposes, he loved her dearly. And the other thing that I
learned was that he was bullied while he was in school. It's
not something that he likes to talk about, but he was bullied
because of his living situation and also because of his weight."
(Trial R. 1469-70.) Dr. Walker explained that Young's witnessing of the
violence in his home made him "more likely to be violent." (Trial R. 1472.)
"[Defense counsel]: In the course of your interviews, did you
learn about any other ways that [Young's] mother and
stepfather were negative role models for him?
"[Dr. Walker]: They -- his stepfather stole from the neighbors.
When somebody new would move in, he would either go -- he
would go steal from them. They fought with the neighbors.
They used drugs in front of [Young]. And the most egregious
to me was when [Young] was nine years old, his mother
started smoking marijuana with him."
10Young believed that William Young was his father. Dr. Walker
testified that there was "conflicting information" as to who was Young's
biological father. (Trial R. 1458.)
78
CR-21-0393
(Trial R. 1474-75.)
Her investigation, Dr. Walker said, showed that Young had an
aggressive disorder, a conduct disorder, and ADHD. (Trial R. 1478.) Dr.
Walker further testified that Young told her that when he was a teenager
he used: "marijuana, methamphetamine, ice, cocaine, Suboxone, which
is a drug that started out being used to treat addiction. Opiates and
benzodiazepines or benzos, most people know them as Xanax or Valium."
(Trial R. 1484.) Dr. Walker then explained the effect those drugs could
have on a young person. (Trial R. 1484-90.) She further testified:
"According to what his aunt told me, she estimated that
[Young's] family moved 30 times in ten years. So he didn't
have any kind of a neighbor that might have intervened.
There weren't neighbors who got to know the family well
enough because, number one, they didn't like them because
they were thieves. They never got the chance to intervene.
As I mentioned before, they weren't involved in any kind of
church family. During the time that his mother was with the
Jehovah Witnesses, my understanding was that they did not
socialize with nonmembers. So I don't know if [Young] had
any involvement with the group.
"There was a lack of commitment to school, even though
[Young], as I gave y'all his intelligence level, he was plenty
smart to go to school and to be able to do things. But his
mother didn't even wake him up to go to school or prepare him
for the day. And if you let a kid stay up as late as they want
to at night, they are not going to be able to wake up on their
own in the morning, for the most part.
79
CR-21-0393
"The fact that his mother smoked marijuana with him,
I would say that was very aggrievance to me because it's
giving the sanction to drug abuse to a young child by the most
important person in his life. There was no restriction against
any kind of drug use in the home. They lived in poor areas.
He was exposed to delinquency and violence and associated
with irresponsibility and associated with a delinquency
environment.
"He had no father in the home. No contact with any
paternal role model other than [his stepfather] who was a
registered sex offender who abused his mother, was a drug
dealer and drug addict."
(Trial R. 1497-99.)
Indeed, the sentencing court found the evidence so compelling that
the court made the following statement in its sentencing order:
"The Court heard testimony from [Young's] maternal aunt,
[Treena] Sidebottom and Dr. [Carol] Walker outlining the
horrible family life upon which [Young] was exposed and
brought up in. The Court heard testimony of the poverty and
chaos of his home, that both mother (whom he loved very
much) and his stepfather were often engaged in criminal
activity and were both drug abusers, addicts, and dealers,
that [Young] smoked marijuana with his mother when he was
only 9 years old, and he has continued to use illegal drugs
throughout his life. The testimony regarding [Young's] family
life and upbringing was very sad and compelling testimony."
(Trial C. 359.) The sentencing court found that Young's "family
background" was a mitigating circumstance. (Trial C. 360.)
80
CR-21-0393
A.
First, Young argues that his trial counsel failed to investigate and
present mitigating evidence that would have supported a sentence of life
imprisonment without the possibility of parole. He makes several
different allegations concerning this claim.
The trial record shows that defense counsel moved for expenses to
hire an investigator and that that motion was granted. (Trial C. 39, 66.)
Counsel also moved for expenses to hire a mitigation specialist and filed
a supplemental motion requesting more funds for that expert. (Trial C.
42, 78, and 241.) The circuit court approved expenses in the amount of
$10,000 for that expert. (Trial C. 272.) Counsel also filed an extensive
motion requesting that the State reveal any possible mitigating
circumstances: Young's criminal history, any information that the
offense was committed while Young was under the influence of any
substance, any information regarding Young's culpability in the offense,
any information that Young acted under extreme duress or under the
domination of another, and numerous other possible mitigating evidence.
(Trial C. 100-104.)
81
CR-21-0393
"Trial counsel is not ineffective for delegating the responsibility of
investigating mitigation evidence to subordinates." Marshall v. State,
182 So. 3d 573, 601 (Ala. Crim. App. 2014).
"Moreover, 'counsel's method of presenting mitigation ...
[is] clearly trial strategy.' Hertz v. State, 941 So.2d 1031,
1044 (Fla. 2006). See also People v. Ratliff, 41 Cal. 3d 675,
697, 224 Cal. Rptr. 705, 715 P.2d 665, 678 (1986) ('[T]he
manner of presenting evidence [is] one of trial tactics properly
vested in counsel.'). '[T]he presentation of mitigating evidence
is a matter of trial strategy.' State v. Keith, 79 Ohio St.3d
514, 530, 684 N.E.2d 47, 63 (1997). 'Matters of trial tactics
and trial strategy are rarely interfered with or second-guessed
on appeal.' Arthur v. State, 711 So. 2d 1031, 1089 (Ala. Crim.
App. 1996), aff'd, 711 So. 2d 1097 (Ala. 1997)."
Clark v. State, 196 So. 3d 285, 315-16 (Ala. Crim. App. 2015).
" 'The inquiry of whether trial counsel failed
to investigate and present mitigating evidence
turns upon various factors, including the
reasonableness of counsel's investigation, the
mitigation evidence that was actually presented,
and the mitigation evidence that could have been
presented.' "
McMillan v. State, 258 So. 3d 1154, 1168 (Ala. Crim. App. 2017), quoting
Commonwealth v. Simpson, 620 Pa. 60, 100, 66 A.3d 253, 277 (2013).
With these principles in mind, we review the claims raised by
Young in this section of his brief to this Court.
82
CR-21-0393
1.
Young first argues that his trial counsel failed to investigate and
present evidence concerning his mother's mental illness, his mother's
suicide attempts, his mother's inability to take care of him, and the
impact of his upbringing and his mother's suicide attempts on Young's
life. Specifically, Young asserts that counsel should have conducted an
adequate investigation and obtained a copy of his mother's medical
records from Riverbend Center for Mental Health ("Riverbend").
In summarily dismissing this claim, the postconviction court made
the following findings:
"Young claims Debra's Riverbend records were
'essential for any meaningful evidentiary presentation related
to Debra Vandiver's mental health and treatment.' Young
also alleges that those records would have proved that Debra's
illnesses were significant and persuasive.
"…. Once again, Young makes a conclusory claim that
these records were essential when Dr. Walker and
[Sidebottom] gave extensive insight into Debra's mental
health issues. Young similarly fails to explain how the
evidence presented at trial about Debra's mental illness was
not significant and pervasive. [Sidebottom] testified that
Debra cut herself, tried to commit suicide multiple times, and
that several of Debra's attempts resulted in hospitalization.
Dr. Walker likewise testified that Debra was likely bipolar
and made several serious suicide attempts. Moreover, Young
fails to explain how documents covering the same facts would
not have been cumulative.
83
CR-21-0393
"Young claims these records reveal that Debra was
diagnosed with depressive disorder, obesity, borderline
personality disorder, and was told that she needed to
establish a better home life for Young.
"…. Dr. Walker testified that Debra had depressive
disorder and likely had bipolar disorder. Moreover, Dr.
Walker testified, when speaking of obesity, that Debra was
reported to be between 300-500 pounds. Finally, evidence was
presented that Debra did not provide a good home life for
Young. Additional evidence of the same would have been
cumulative.
"Young claims these records reveal Debra's inability to
keep a job, her Social Security disability benefits, and her lack
of an income.
"… Young fails to explain how documentary evidence
that Debra could not hold a job, received government benefits,
and lacked an income was necessary and not cumulative when
testimony was given to the same effect. Indeed, Dr. Walker
testified that Young lived in poor areas. [Sidebottom] also
testified that Young and Debra lived in government housing.
Dr. Walker testified that Debra did not support herself with a
job 'as there was not an emphasis placed on self-support.
They stole.' Moreover, Dr. Walker testified that Debra and
Young lived off government benefits as she received social
security or social security disability benefits. Failure to
present additional evidence of the same would have been
cumulative."
(C. 727-29.)
In relation to Young's mother's suicide attempts, the postconviction
court stated:
84
CR-21-0393
"[Sidebottom], Debra's sister, testified that Debra cut herself
and was once found unresponsive on the floor after an
apparent suicide attempt. According to [Sidebottom], Debra
had to be taken to the hospital. [Sidebottom] likewise
testified that on other occasions, Debra's suicide attempts
resulted in hospitalization. Dr. Carol Walker, Young's hired
clinical psychologist, also described Debra's suicide attempts
as serious. [Sidebottom] and Dr. Walker both testified that
Debra tried to commit suicide 'many times.' Furthermore, Dr.
Walker testified that Debra died of an intentional overdose.
Thus, counsel knew, as did the jury, that Debra had tried to
commit suicide several times, that her attempts were serious,
and that she had likely died of an overdose, and records of
these events would have been merely cumulative.
"Young claims that Debra's records from Riverbend
would have documented that she attempted suicide when
Young was an infant, four years old, and eight years old, the
last of which he witnessed. According to Young, counsel failed
to elicit testimony from [Sidebottom] about Young's
witnessing of Debra's suicide attempt. …
"Regarding Debra's suicide attempt that Young actually
witnessed, Young fails to satisfy the specificity and full factual
pleading requirements of Rule 32.3 and 32.6(b) and to state a
valid claim for relief or present a material issue of fact or law
under Rule 32.7(d) of the Alabama Rules of Criminal
Procedure. Young claims that the jury did not learn how
severe this attempt was, but Young fails to plead how
knowing this information likely would have changed his
sentence. Furthermore, Young claims that he saw this suicide
attempt, but he does not plead how this impacted his
development."
(C. 713-15.)
85
CR-21-0393
As stated above in the synopsis of the evidence presented at the
penalty phase, a great deal of the mitigating evidence that Young asserts
was not presented concerning Young's mother was, in fact, presented at
sentencing through the testimony of Sidebottom and Dr. Walker.
"Counsel cannot be ineffective for not presenting evidence that counsel
did, in fact, present." Clark v. State, 196 So. 3d 285, 318 (Ala. Crim. App.
2015). " '[A] claim of ineffective assistance of counsel for failing to
investigate and present mitigation evidence will not be sustained where
the jury was aware of most aspects of the mitigation evidence that the
defendant argues should have been presented.' " Walker v. State, 194 So.
3d 253, 288 (Ala. Crim. App. 2015), quoting Frances v. State, 143 So. 3d
340, 356 (Fla. 2014).
" 'A trial court may summarily dismiss a post-
conviction petition [on a claim of ineffective
assistance of counsel] when it is clear upon the face
of the petition itself or the exhibits or material
from prior proceedings that there are no facts upon
which the petitioner could prevail. Robertson v.
State, 669 So. 2d 11 (Miss. 1996). See also Taylor
v. State, 782 So.2d 166, 168 (¶4) (Miss. Ct. App.
2000).'
"Fairley v. State, 812 So. 2d 259, 262 (Miss. Ct. App. 2002). 'A
petitioner's failure to "show how, but for the attorneys' errors,
the results of the proceedings would have been different"
justifies a district court's decision to summarily dismiss the
86
CR-21-0393
ineffective assistance of counsel claim.' Everett v. State, 757
N.W.2d 530, 535 (N.D. 2008) (quoting Hughes v. State, 639
N.W.2d 696, 699 (N.D. 2002)). '[F]ailing to introduce
additional mitigation evidence that is only cumulative of that
already presented does not amount to ineffective assistance.'
Jalowiec v. Bradshaw, 657 F.3d 293, 319 (6th Cir. 2011)
(citing Nields v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007)).
" ' "[I]n order to establish prejudice, the new
evidence that a [postconviction] petitioner
presents must differ in a substantial way -- in
strength and subject matter -- from the evidence
actually presented at sentencing." Hill v. Mitchell,
400 F.3d 308, 319 (6th Cir.), cert. denied, 546 U.S.
1039, 126 S.Ct. 744, 163 L.Ed.2d 582 (2005). In
other cases, we have found prejudice because the
new mitigating evidence is "different from and
much stronger than the evidence presented on
direct appeal," "much more extensive, powerful,
and corroborated," and "sufficiently different and
weighty." Goodwin v. Johnson, 632 F.3d 301, 328,
331 (6th Cir. 2011). We have also based our
assessment on "the volume and compelling nature
of th[e new] evidence." Morales v. Mitchell, 507
F.3d 916, 935 (6th Cir. 2007). If the testimony
"would have added nothing of value," then its
absence was not prejudicial. [Bobby v.] Van Hook,
[558 U.S. 4, 12,] 130 S.Ct. [13,] 19 [ (2009)]. In
short, "cumulative mitigation evidence" will not
suffice. Landrum v. Mitchell, 625 F.3d 905, 930
(6th Cir. 2010), petition for cert. filed (Apr. 4, 2011)
(10-9911).'
"Foust v. Houk, 655 F.3d 524, 539 (6th Cir. 2011).
Stallworth v. State, 171 So. 3d 53, 79-80 (Ala. Crim. App. 2013).
87
CR-21-0393
" ' "[T]he failure to present additional mitigating
evidence that is merely cumulative of that already presented
does not rise to the level of a constitutional violation." Nields
v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007) (quoting
Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir. 2006)).' Eley v.
Bagley, 604 F.3d 958, 968 (6th Cir. 2010). 'This Court has
previously refused to allow the omission of cumulative
testimony to amount to ineffective assistance of counsel.'
United States v. Harris, 408 F.3d 186, 191 (5th Cir. 2005).
'Although as an afterthought this [defendant's father]
provided a more detailed account with regard to the abuse,
this Court has held that even if alternate witnesses could
provide more detailed testimony, trial counsel is not
ineffective for failing to present cumulative evidence.' Darling
v. State, 966 So. 2d 366, 377 (Fla. 2007)."
Daniel v. State, 86 So. 3d 405, 429-30 (Ala. Crim. App. 2011).
This claim was properly summarily dismissed because there was no
material issue of fact or law that would entitle Young to relief. See Rule
32.7(d), Ala. R. Crim. P.
Furthermore, Young was 28 years of age at the time of the
shootings. Many courts have discussed the effectiveness of presenting
testimony concerning a troubled childhood when the defendant was an
adult when the murder was committed.
" '[T]rial counsel's decision not to investigate and
present evidence regarding Francis's family
background does not amount to deficient
assistance. Under certain circumstances, trial
counsel's decision not to investigate family
childhood background may legitimately be the
88
CR-21-0393
product of a reasoned tactical choice. See Stanley
v. Zant, 697 F.2d 955, 970 (11th Cir. 1983), cert.
denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d
372 (1984). Given the particular circumstances of
this case including, among other things, the fact
that Francis was thirty-one years old when he
murdered Titus Waters, evidence of a deprived
and abusive childhood is entitled to little, if any,
mitigating weight. See Francois v. Wainwright,
763 F.2d 1188, 1191 (11th Cir. 1985).
Consequently, trial counsel cannot be faulted for
expending his limited time and resources on other
vital areas.' "
Washington v. State, 95 So. 3d 26, 44-45 (Ala. Crim. App. 2012), quoting
Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990).
This is not a case where counsel failed to conduct any mitigation
investigation or where counsel failed to present any mitigation. The
mitigation that was presented was compelling as stated by the
sentencing judge. For the forgoing reasons, this claim was correctly
summarily dismissed. Accordingly, Young is due no relief on this claim.
2.
Young next argues that his trial counsel was ineffective because of
the "weak testimony" counsel presented concerning Young's having been
diagnosed with ADHD when he was a child.
89
CR-21-0393
The postconviction court found that there was no material issue of
fact or law that would entitle Young to relief. In dismissing this claim,
the court stated:
"While Dr. Walker testified that there was no evidence in the
records that she received indicating that Young had received
treatment for ADHD, she testified that she had been told by
family members that Young was taking stimulant medication
for his ADHD. Dr. Walker also testified that Young was given
a conditional diagnosis of disruptive disorder, conduct
disorder, and ADHD, as well as received medication for mood
swings, while at Three Springs treatment facility [when he
was a teenager]. Thus, this information was presented to the
jury, and additional evidence of the same, whether it be
through records or the testimony of [Sidebottom], would have
been cumulative."
(C. 730.)
As the record shows, counsel chose to present evidence of Young's
ADHD through the testimony of Sidebottom and Dr. Walker. Dr.
Walker's testimony was based, in part, on records that she had examined
from Three Springs treatment facility. 11 " '[C]ounsel's method of
presenting mitigation … [is] clearly trial strategy.' Hertz v. State, 941
So. 2d 1031, 1044 (Fla. 2006)." Clark v. State, 196 So. 3d 285, 315 (Ala.
Crim. App. 2015).
11Three Springs was a juvenile treatment facility that housed young
juvenile offenders.
90
CR-21-0393
"A trial strategy decision may only serve as a basis for
ineffective counsel if the decision is unreasonable. Zink [v.
State], 278 S.W.3d [170] at 176 [(Mo. 2009)]. The choice of one
reasonable trial strategy over another is not ineffective
assistance. Id. '[S]trategic choices made after a thorough
investigation of the law and the facts relevant to plausible
opinions are virtually unchallengeable.' Anderson [v. State],
196 S.W.3d [28] at 33 [(Mo. 2006)] (quoting Strickland, 466
U.S. at 690, 104 S.Ct. 2052)."
McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. 2012). "[A] tactical
decision will not form the basis for an ineffective assistance of counsel
claim unless it was 'so patently unreasonable that no competent attorney
would have chosen it.' " Brown v. State, 288 Ga. 902, 909, 708 S.E.2d 294,
301 (2011). For these reasons, this claim was properly summarily
dismissed, and Young is due no relief on this claim.
3.
Young next argues that his counsel was ineffective for failing to
present testimony concerning Johnny Vandiver's violence and cruelty
toward Young. Specifically, Young argues that counsel should have
presented the testimony of Scott Dishon, Julian Smith, and Joseph
Young concerning Vandiver's treatment of Young.
Young pleaded that Dishon would have testified that he was a
childhood friend of Young's from the age of 10 to 12 and that Young's
91
CR-21-0393
stepfather was a "psycho" who frequently cursed at Young. Smith would
have testified that he frequently witnessed Young's stepfather yelling at
Young and at Young's mother. Joseph Young would have testified that
he went to visit Young when he was 11 years old and left after "Vandiver
was physically violent with" him. (C. 76.) Young did not plead what
Vandiver did to Joseph Young that caused him to leave.
The postconviction court found that this claim was not sufficiently
pleaded because Young failed to plead that the witnesses were willing
and able to testify at Young's trial. (C. 731-32.)
Moreover, the trial record shows that Sidebottom testified that
Vandiver was physically abusive to her sister, that she had witnessed
him restrain her, that she had witnessed him hit her in the face, that she
had witnessed him grab her by the hair, and that she had witnessed him
verbally abuse her. She further testified that she had also witnessed
Vandiver verbally abuse Young. (Trial R. 1432.) She detailed a specific
instance:
"My earliest recollection of when [Young] was probably
about three or four years old, and for some reason they had a
Chucky doll -- the Chucky doll like from the movie. And
[Young] was scared to death of that doll, and Johnny would
just terrorize him just relentlessly with that doll. And I got
on to him, and I couldn't understand why someone would
92
CR-21-0393
make a child so scared and be so hurtful. I didn't understand.
And not long after that I found out that he was a sex offender
and that he had done time in prison for sexual -- sexual abuse
of a child."
(Trial R. 1431-32.) Thus, evidence was presented that Vandiver was
verbally abusive and cruel to Young.
"[T]his Court has held that even if alternate witnesses could
provide more detailed testimony, trial counsel is not
ineffective for failing to present cumulative evidence. See
Gudinas v. State, 816 So. 2d 1095, 1106 (Fla. 2002); Sweet v.
State, 810 So. 2d 854, 863-64 (Fla. 2002). Therefore, trial
counsel was not ineffective for failing to call Carlton as a
witness during the penalty phase to present evidence which
was generally presented by others."
Darling v. State, 966 So. 2d 366, 377 (Fla. 2007). Accordingly, there
was no material issue of fact or law that would entitle Young to relief on
this issue, thus, summary dismissal was proper. Young is due no relief
on this claim.
4.
Young next argues that his trial counsel was ineffective for failing
to investigate and present physical records of Johnny Vandiver's sexual-
assault conviction.
In dismissing this claim, the postconviction court stated:
"Young fails to satisfy the specificity and full factual pleading
requirements of Rules 32.3 and 32.6(b) and to state a valid
93
CR-21-0393
claim for relief or present a material issue of fact or law under
Rule 32.7(d) of the Alabama Rules of Criminal Procedure.
Young claims that this information was easily and readily
available, but he fails to explain how the records were easily
available. Young likewise fails to plead facts showing that
these records would have been admissible as relevant.
Introducing the facts about another, unrelated case would
likely have received an objection from the State on relevance
grounds. … Young fails to explain how evidence of Johnny's
sexual abuse against his stepdaughter is at all relevant when
Young does not claim that Johnny also sexually abused him.
Moreover, Young fails to plead why the details of Johnny's
sexual assault case were necessary and not cumulative when
the jury heard multiple times that Johnny had sexually
abused his stepdaughter."
(C. 733-34.)
The trial record shows that on numerous occasions during
Sidebottom's and Dr. Walker's testimony they stated that Vandiver had
a prior sexual-abuse conviction. Trial counsel's decision to present this
through testimony instead of physical records was clearly a strategic
decision. Thus, there was no material issue of fact or law that would
entitle Young to relief on this claim. See Rule 32.7(d), Ala. R. Crim. P.
Accordingly, Young is due no relief on this claim.
5.
94
CR-21-0393
Young next argues that his counsel failed to investigate and present
evidence of abuse and mental illness in Young's extended family
specifically, that Young's maternal uncle had mental problems.
In dismissing this claim, the postconviction court stated:
"Young failed to plead how, and from where, counsel could
have obtained the private records of a private patient of
Young's non-immediate family. Young likewise fails to
explain how these records would have been admissible and
what witness could have properly laid the foundation for these
records when Patrick and Paul[12] did not testify. Moreover
Young fails to explain why records of Patrick's mental health
were necessary and not cumulative when [Sidebottom]
testified to Patrick's mental health issues, including that he
was put in a mental health facility. …
"Regarding the abuse of Paul, Dr. Walker testified that
there were many members of Young's family that refused to
talk to her. Young fails to plead that Matthew was not one of
those people. Young likewise fails to plead that Matthew was
available and willing to testify in this case when Matthew has
been completely absent from Young's life. Furthermore,
Young fails to explain why records of Paul's abuse were
necessary when the jury heard about Alice's mental health
issues and abuse of her family."
(C. 734-36.)
The trial record shows that defense counsel asked Sidebottom if any
of her siblings had mental problems. (Trial R. 1423.) She testified that
12Paul is Sidebottom's oldest brother; Patrick is another brother.
95
CR-21-0393
her oldest brother, Paul, was abusive and violent and that another
brother, Patrick, had been put in a mental-health facility in Tarrant
County in Fort Worth. Patrick had also tried to commit suicide at that
facility and when he was sent home, he again tried to commit suicide by
overdosing on Xanax. (Trial R. 1425.) Testimony was presented about
Young's extended family's mental health. Thus, summary dismissal of
this claim was proper; therefore, Young was due no relief on this claim.
6.
Young next argues that counsel was ineffective for failing to
investigate and present evidence indicating that Young's grandfather
was supportive of his mother and that Young lost his mother and
grandfather within weeks of each other.
In dismissing this claim, the postconviction court stated:
"Dr. Walker testified that Paul [Young's grandfather] was
supportive of Debra. Young fails to plead how it is not obvious
from this testimony that by supporting Debra, Paul also
supported Young. Young likewise fails to plead who would
have, or could have, testified that Paul encouraged Young to
participate in the family.
"Young claims that [Sidebottom] could have testified
about his relationship with Paul and about the fact that Paul
died within weeks of his mother's suicide and within days of
Young's release from prison. However, Young fails to explain
the significance of this event. Importantly, Young does not
96
CR-21-0393
claim that the timing of Paul's death, or that Paul's death in
general, had a negative impact on his psychological well-
being. Young likewise fails to plead how [Sidebottom] would
have testified that once Young was released from prison, he
had no support from family, when [Sidebottom] herself
testified that she loves Young. Such 'bare claims' are
insufficient to warrant further proceedings."
(C. 735-37.)
Young pleaded that counsel should have presented evidence
indicating that Young's grandfather was supportive of him but failed to
plead the identity of any individual who could have provided such
testimony. Nor did Young plead how the death of Young's mother and
grandfather affected him. The full facts were not pleaded in regard to
this claim. See Rule 32.7(d), Ala. R. Crim. P.
Moreover, the record shows that testimony was presented that
Young's grandfather was supportive of Young's mother. Sidebottom
testified that when Debra had Young, her father moved her and the baby
back into their house in Florence. (Trial R. 1415.) It was clear from
Sidebottom's testimony that her father had been helpful to his children
and that her mother was the one that was abusive. Dr. Walker testified
that "Paul Syesta was supportive of Debbie. …" (Trial R. 1459.) Thus,
summary dismissal was proper, and Young is due no relief on this claim.
97
CR-21-0393
7.
Young next argues that his trial counsel was ineffective for failing
to present an expert on trauma and its impact on child development.
Young pleaded that Dr. Paul O'Leary, a psychiatrist, was willing to
testify concerning the effect that Young's traumatic childhood had on his
development. (C. 81.)
In finding that this claim was meritless, the postconviction court
made the following findings of fact:
"Young does not explain how Dr. [Carol] Walker, the
defense's expert, was not qualified to testify on such subjects,
and thus, why another expert was needed. Indeed, Dr.
Walker has a Ph.D. in medical clinical psychology. She is also
board certified in clinical neuropsychology. Dr. Walker
explained that neuropsychology 'looks after those
relationships between the brain and behavior.' And,
importantly, Dr. Walker explained that she has been qualified
as an expert to discuss cognitive issues related to trauma and
neurodevelopmental disorders. … Dr. Walker testified that
Young had an attachment to his mother, explaining that he
ran away from a treatment facility to be with her. Dr. Walker
testified that Young had problems with mood swings and had
to be on medication for it. Dr. Walker testified that Young has
been unable to maintain long-term relationships in his life,
that all of his relationships were short-term, and that, in some
of his relationships, Young would propose after having known
his girlfriend for a few weeks. The record reflects that Dr.
Walker walked through the trauma that Young had
experienced in his life, including his mother's serious suicide
attempts and mental illnesses, poverty, his learning
disabilities, his mother and stepfather's life of crime, his
98
CR-21-0393
chaotic and unstable home, as well as the verbal abuse and
neglect he received. Then after explaining the trauma of
Young's life, Dr. Walker testified to some of the symptoms of
that trauma seen in Young's personal, social, and academic
life. … Dr. Walker's testimony addressed the impact the
trauma in Young's life had on his development and its relation
to this crime, and Young fails to plead that Dr. [Paul]
O'Leary's testimony would have been different. The fact of
the record, then, reveals that Young's claim is meritless."
(C. 737-41.)
As stated above when discussing Dr. Walker's testimony, her
testimony detailed the trauma Young suffered in his childhood and its
impact on his life. "[C]ounsel 'is not ineffective for failing to shop for an
expert that would testify in a particular way." Glass v. State, 227 S.W.3d
463, 484 (Mo Banc 2007). Therefore, this claim presented no material
issue of fact or law that would entitle Young to relief. See Rule 32.7(d),
Ala. R. Crim. P. Accordingly, Young is due no relief on this claim.
B.
Young next argues that his trial counsel was ineffective in opening
and closing statements in the penalty phase because, he says, counsel did
not articulate a coherent theory as to why Young should be sentenced to
life imprisonment without the possibility of parole.
99
CR-21-0393
The postconviction court made the following findings when
dismissing this claim:
"The record clearly reflects that counsel mentioned
specific examples of Young's traumatic childhood. Counsel
stated that Young's mother abused drugs and was not stable,
[that] Young never had a sense of community, [that] his only
male role model was a sex offender, [that] his stepfather
abused drugs and his mother, and [that] he lost his mother
who he dearly loved. Though counsel does not mention
Debra's suicide attempts and Paul's passing, Young fails to
plead how counsel's 'failure' render counsel's statements
incoherent.
"Young claims that counsel failed to challenge the
State's two aggravating circumstances in opening statements,
instead opting to argue these points in closing, thus
eliminating the State's burden of proof, but Young fails to
explain how counsel's decision to address the State's
aggravating circumstances in closing rather than in opening
statements eliminated the State's burden of proof. Young
fails to plead how this was not a matter of sound trial strategy,
ensuring that the jury focused on the trauma of Young's life
by talking about it in opening statements. Moreover, Young
fails to explain how counsel's strategic decision actually
prejudiced him.
"Young claims that counsel's closing argument was
haphazard and offered only a cursory list of his traumatic life
experiences, but Young completely fails to specify what
counsel should have said instead. Nor does Young explain
how counsel's actions fell below an objective standard of
reasonableness. Moreover, Young does not specifically plead
how there is a reasonable probability that he would not have
been sentenced to death but-for counsel's alleged errors.
Rather, Young presents a conclusory allegation that he was
100
CR-21-0393
prejudiced. Such 'bare claims' are insufficient to warrant
further proceedings. Rule 32.6(b), Ala. R. Crim. P."
(C. 742-43.)
The record shows that trial counsel had a coherent closing
argument that discussed many mitigation factors. That argument
stated, in part:
"[Young's] father figure, Johnny Vandiver, he was a
registered sex offender. He used drugs and participated
regularly in criminal activity. [Young] had no parental roots.
His mother abused drugs, quite possibly while she was
pregnant with [Young]. [Young] witnessed parental drug use
while growing up. She began smoking marijuana with him
when he was nine years old. [Young's] family moved a lot and
never established placement in a community. He never had a
place. I grew up in Ford City, and many of you probably know
where that is. That's my home. [Young] can't say where his
home is. [Young] witnessed domestic violence against his
mother. There's no family commitment to education, and he
missed a lot of school. [Young] spent a lot of time in group
homes and boot camps, and his mother didn't even come to
visit with him. [Young] has ADHD, and that's another issue.
[Young's] family had a lack of family unity. [Young] never saw
anyone in his home keep a steady job. You know the older I
get it seems to me the more important that is. For kids to see
somebody working, doing something with themselves.
"And another one that we haven't talked about here that has
come out in the guilt-phase trial, [Young] didn't shoot Mr.
Freeman. Now, is he guilty of capital murder? Yes. Okay. But
a mitigating factor is, [Young] did not shoot him. There is no
evidence whatsoever that the gun that [Young] had even hit
the car. As a matter of fact, [the prosecutor] even made
101
CR-21-0393
mention of that in his closing statement, if you do recall. That
is a mitigating factor."
(Trial R. 1555-56.) Also, the argument was so effective that the
sentencing court found that Young's childhood was a mitigating
circumstance. For the above-stated reasons, summary dismissal of this
claim was proper, and Young is due no relief on this claim.
C.
Young argues that counsel was ineffective in failing to adequately
prepare and elicit testimony from Dr. Carol Walker. Specifically, Young
pleaded that Dr. Walker should have given more detail about his
mother's mental illness and more detail about his childhood.
The postconviction court made the following findings on this claim:
"The record reflects that Dr. Walker presented effective
testimony concerning Debra's illnesses. Dr. Walker testified
twice that Debra likely died of suicide. Dr. Walker testified
that Debra had a history of depression and likely had bipolar
disorder. Dr. Walker testified that everyone she spoke to told
her that Debra made several serious suicide attempts. Dr.
Walker explained that Debra had tried multiple times to
commit -- one such time Young witnessed. Finally, Dr.
Walker testified that Debra was treated for her mental
conditions. Young fails to plead why more information about
Debra's mental health was needed for counsel to effectively
prepare Dr. Walker's testimony about this subject.
"Young claims that Dr. Walker's testimony about his
trauma was incoherent and non-specific, but Young fails to
102
CR-21-0393
explain which parts of her testimony were problematic and he
fails to provide examples of how her testimony could have
been more specific. He claims that Dr. Walker gave damaging
testimony about his intellectual capability, but he fails to
explain how her testimony could have been tempered with
further preparation with trial counsel. Dr. Walker performed
an intellectual assessment on Young that showed he was of
average to above average intelligence, and she testified to this
fact. Young fails to plead how counsel could have avoided the
results of this assessment or how counsel could have better
coached Dr. Walker in her answers in this regard -- the
assessment reveals what it reveals.
"Young claims that Dr. Walker failed to give effective
testimony regarding the ongoing impact of his trauma
because the jury did not hear specifics, was not given dates,
and was not presented with a meaningful timeline. However,
the record reflects that Dr. Walker shared the trauma that
Young had experienced in his life, including his mother's
multiple, serious suicide attempts, his mother's mental
illnesses, poverty, learning disabilities, his mother and
stepfather's life of crime, his mother's likely suicide, his
chaotic and unstable home, and the verbal abuse and neglect
he received. After explaining the trauma seen in Young's
personal, social, and academic life. Then, at the end of her
testimony, Dr. Walker explained how the trauma of Young's
life, or 'effective factors,' could have played a part in Young
committing this crime. Young fails to plead how such
testimony, despite the absence of dates, was not effective or
meaningful."
(C. 744-46.)
First, Young did not plead what counsel should have done in order
to "properly" prepare Dr. Walker to testify. Second, defense counsel's
examination of Dr. Walker was very thorough and effective. A review of
103
CR-21-0393
the penalty phase shows that counsel's presentation of the evidence was
effective. Accordingly, this claim was properly summarily dismissed, and
Young is due no relief on this claim.
D.
Young next argues that his counsel was ineffective for failing to
effectively prepare and question Treena Sidebottom, Young's maternal
aunt who testified at the penalty phase.
The pleadings on this claim consist of the following, in part:
"[C]ounsel's failure to adequately investigate and obtain all
relevant records including Debra Vandiver's Riverbend
records and talk to numerous witnesses prior to preparing
and presenting Sidebottom's testimony prejudiced Young.
Counsel failed to elicit important information that Sidebottom
could have shared with the jury."
(C. 87.)
The postconviction court, in dismissing this claim, stated:
"Young fails to plead why Debra's Riverbend records were
necessary for [Sidebottom] to give adequate testimony about
Debra's mental illnesses. [Sidebottom] testified that Debra
tried to commit suicide, indicating that Debra was depressed.
Young likewise fails to explain why further testimony from
[Sidebottom] was needed when Dr. Walker testified that
Debra had depression and likely had bipolar disorder and
obesity. Nor does Young plead how [Sidebottom] could have
testified about Debra's mental illnesses further when the trial
court instructed her that she could not 'testify to diagnosis
and that type of thing.'
104
CR-21-0393
"Young similarly fails to adequately plead why
knowledge that [Sidebottom] tried to assist Debra four times
after her suicide attempts was necessary when [Sidebottom]
testified generally that she tried to assist Debra after her
suicide attempts. The record likewise reflects that
[Sidebottom] was so concerned about her sister that she
thought about adopting Young, but worried about what that
would do to her sister's mental health.
"Furthermore, Young claims that 'it was critical [on re-
direct] to elicit testimony from Sidebottom to explain
Sidebottom's different outcome in adult life compared to her
sister Debra's.' Young fails to plead how counsel could have
done this or what counsel should have asked. The record
reveals, however, that [Sidebottom] gave this testimony.
Indeed, [Sidebottom] gave testimony highlighting the
differences in her adult life and Debra's adult life despite their
rough upbringing. Moreover, Young's claim that [Sidebottom]
did not testify about the different mental and psychiatric
realities of the sibling pairs is without merit. Young fails to
explain how [Sidebottom] could have given any more detail
than what she did, considering the trial court's order limiting
her testimony on the subject."
(C. 748-50.)
Sidebottom's testimony was detailed and effective. Young's
mitigation expert, Dr. Walker, testified that she spent 11 hours talking
with Sidebottom. There was no material issue of fact or law that would
entitle Young to relief under Strickland. See Rule 32.7(d), Ala. R. Crim.
P. Thus, summary dismissal of this claim was proper, and Young is due
no relief on this claim.
105
CR-21-0393
E.
Young next argues that his trial counsel was ineffective for failing
to challenge the State's case in aggravation. He makes several different
arguments in support of this contention.
1.
First, Young argues that counsel was ineffective for failing to
investigate his prior felony conviction for robbery in the third degree. He
also argues that trial counsel was ineffective in not challenging his
conviction at this trial for discharging a weapon into an occupied vehicle
because, he says, the jury was free to consider that felony as an
aggravating circumstance.
In summarily dismissing this claim, the postconviction court stated:
"Young fails to explain how knowing the underlying facts of
his third-degree robbery conviction would have tempered the
State's aggravation case. Indeed, Young was convicted of a
violent felony, and he does not plead facts that show
otherwise. Such 'bare claims' are insufficient to warrant
further proceedings.
"….
"Moreover, Young's claim that the jury was invited to
consider his conviction for discharging a firearm into an
occupied vehicle as an additional felony during sentencing is
without merit. Indeed, the trial court specifically instructed
the jury that it could only consider as aggravating
106
CR-21-0393
circumstances Young's prior felony convictions for robbery in
the third degree and assault in the second degree. For this
reason, a special instruction and verdict form were not
necessary or warranted."
(C. 751-53.)
First, Young pleaded no circumstances surrounding his prior
conviction for robbery in the third degree except that he had stolen a
bicycle. No other facts surrounding that conviction were pleaded in
Young's petition. Young merely pleaded "bare fact" in support of this
claim; thus, summary dismissal was proper. See Rule 32.6(b), Ala. R.
Crim. App.
Second, the circuit court's jury charge in the penalty phase stated
that the jury could consider as aggravating circumstances only Young's
conviction for robbery in the third degree and his conviction for assault.
(Trial R. 1566.) The jury was not invited to consider an improper felony
in aggravation. Thus, this claim presented no material issue of fact or
law that would entitle Young to relief. Accordingly, Young is due no relief
on these claims.
2.
107
CR-21-0393
Young next argues that his trial counsel was ineffective for failing
to challenge the aggravating circumstance that Young's conduct of
shooting in a parking lot created a great risk of death to many persons.
The postconviction court found that this claim was due to be
dismissed because the underlying argument in support of the ineffective-
assistance-of-counsel claim had been addressed by this Court on direct
appeal. This Court stated, in part:
"The evidence at trial showed that after Young parked
the white pickup truck at the Spring Creek Apartments and
got out of the vehicle with Capote, one or both of them shot at
Freeman at least 15 times. Det. Holland testified that after
the shooting there were shell casings scattered 'all over the
parking lot.' The surveillance footage shows several vehicles
in the parking lot near the shooting. Less than a minute after
the shooting a man can be seen on the surveillance footage
opening an apartment door and peering outside. Lt. Wear,
who arrived at the Spring Creek Apartments less than five
minutes after the shooting, testified that when he arrived
there were '[a] lot of people' at the scene, and two or three
witnesses told him that a white truck had left the scene.
Captain Setliff testified that when he arrived at the scene less
than 30 minutes after the shooting there were people '[a]ll the
way around the parking lot.' He estimated there were 'at least
75 to 100' people in the parking lot. Sumerel, the apartment's
property manager, testified that there are 60 units in the
Spring Creek Apartments with a total capacity of 224 people.
She testified that in March 2016 at least 55 of the 60 units
were full, mostly of women and children.
108
CR-21-0393
"This evidence, showing that there were people in the
residential area where the shooting happened, was enough for
the circuit court to submit to the jury the question whether
Young 'knowingly created a great risk of death to many
persons,' and for the jury to find – and the circuit court to
consider and weigh – that aggravating circumstance."
Young, ___ So. 3d at ___.
The trial record reflects that defense counsel did present some
argument against this aggravating circumstance. In the circuit court's
order sentencing Young to death, the court referenced this argument:
"The Court heard defense counsel argue that the aggravating
circumstance of defendant knowingly creating a great risk of death to
many persons being weak in this case, and that had the deceased not
been sitting his car but standing outside of his car it would not have been
capital murder." (Trial C. 350-51.)
Thus, this claim was correctly summarily dismissed because the
underlying claim had no merit. Counsel cannot be ineffective for failing
to raise a claim that has no merit. See Bush v. State, 92 So. 3d 121 (Ala.
Crim. App. 2009). For these reasons, Young is due no relief on this claim.
V.
109
CR-21-0393
Young next argues that the postconviction court erred in denying
his motion for discovery. The record shows that Young filed two motions
for discovery. His argument on this claim does not identify which motion
Young is challenging on appeal. (Young's brief at p. 95.)
The record shows that Young filed a "motion for discovery of
prosecution files, records, and information necessary for a fair Rule 32
proceeding." (C. 253.) At the same time, Young also filed a "motion for
discovery of institutional, files, records, and information necessary for a
fair Rule 32 proceeding." (C. 274.) The State moved that the
postconviction court first dispose of the motion to dismiss the Rule 32
petition that was pending before disposing of the motions for discovery.
(C. 295.)
In Alabama, there is no inherent right to discovery in a
postconviction proceeding. The Alabama Supreme Court has held that
to be entitled to discovery in Rule 32 proceedings, a petitioner must
establish "good cause" for the requested discovery. See State v. Martin,
69 So. 3d 94 (Ala. 2011), and Ex parte Land, 775 So. 2d 847 (Ala. 2000).
"Morris was not entitled to discovery, because the claims
for which he sought discovery were either insufficiently
pleaded, procedurally barred, or meritless, and they were
dismissed. We have held in the previous sections of this
110
CR-21-0393
opinion that the circuit court did not err by summarily
dismissing Morris's claims, and it follows that Morris did not
meet the good-cause standard for obtaining postconviction
discovery. Accordingly, the circuit court did not commit error
when it denied Morris's postconviction discovery requests.
See, e.g., Davis v. State, 184 So.3d 415, 447 (Ala. Crim. App.
2014)."
Morris v. State, 261 So. 3d 1181, 1202 (Ala. Crim. App. 2016). Likewise,
the postconviction court did not err by failing to grant Young's motion for
discovery. Accordingly, Young is due no relief on this claim.
VI.
Last, Young argues that the postconviction court's wholesale
adoption of the State's summary-dismissal order violates State and
federal law. He argues that aside from the deletion of one paragraph,
the final order is the same as the State's proposed order and that it
suffers from the same typographical errors.
Young filed a lengthy objection to the postconviction court's
wholesale adoption of the State's order. (C. 764.)
"[T]he general rule is that, where a trial court does in fact
adopt the proposed order as its own, deference is owed to that
order in the same measure as any other order of the trial
court. In Dobyne v. State, 805 So. 2d 733, 741 (Ala. Crim.
App. 2000), the Court of Criminal Appeals stated:
" ' " ' While the practice of adopting the state's
proposed findings and conclusions is subject to
111
CR-21-0393
criticism, the general rule is that even when the
court adopts proposed findings verbatim, the
findings are those of the court and may be reversed
only if clearly erroneous.' " '
"805 So. 2d at 741 (quoting other cases; emphasis added). In
McGahee v. State, 885 So. 2d 191, 229-30 (Ala. Crim. App.
2003), the Court of Criminal Appeals stated that 'even when
a trial court adopts verbatim a party's proposed order, the
findings of fact and conclusions of law are those of the trial
court and they may be reversed only if they are clearly
erroneous.' Cf. United States v. El Paso Natural Gas Co., 376
U.S. 651, 656, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964) (expressing
disapproval of the 'mechanical' adoption of findings of fact
prepared by a party, but stating that such findings are
formally those of the trial judge and 'are not to be rejected out-
of-hand')."
Ex parte Ingram, 51 So. 3d 1119, 1122-23 (Ala. 2010). The Alabama
Supreme Court has found error in the adoption of a proposed order when
the court adopted one of the pleadings of the State, Ex parte Scott, 262
So. 3d 1266 (Ala. 2011), and when the court adopted an order that
incorporated statements that the findings were based on personal
knowledge of the judge when the judge issuing the order did not preside
over the trial. See Miller v. State, 99 So. 3d 349 (Ala. Crim. App. 2011).
This Court has not reversed a court's adoption of a proposed order when
that order contained merely typographical errors. See Ex parte Ingram,
supra.112
CR-21-0393
In this case, there is nothing to indicate that the order adopted from
the State's proposed order was not the judge's own independent judgment
or that it was "merely an unexamined adoption of the proposed order
submitted by the State." Mashburn, 148 So. 3d at 1113. We find that
the postconviction-court's findings are not clearly erroneous. Thus,
Young is due no relief on this claim.
For the foregoing reasons, we affirm the circuit court's summary
dismissal of Young's postconviction petition attacking his capital-murder
conviction and sentence of death.
AFFIRMED.
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.
113