Peter Capote v. State of Alabama

Rel: May 5, 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) 229-0649), 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-20-0537
_________________________
Peter Capote
v.
State of Alabama
Appeal from Colbert Circuit Court
(CC-16-340.60)
McCOOL, Judge.
Peter Capote appeals the Colbert Circuit Court's summary
dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction
relief. That petition challenged Capote's conviction for capital murder,
see § 13A-5-40, Ala. Code 1975, for which he was sentenced to death, and
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his conviction for first-degree assault, see § 13A-6-20, Ala. Code 1975, for
which he was sentenced to 20 years' imprisonment.
Facts and Procedural History
In 2018, Capote was convicted of murder made capital because it
was committed through the use of a deadly weapon while the victim was
in a vehicle, see § 13A-5-40(a)(17), Ala. Code 1975, and he was sentenced
to death for that conviction. Capote was also convicted of first-degree
assault and was sentenced to 20 years' imprisonment for that conviction.
In its opinion affirming Capote's convictions and sentences, this Court
set forth the facts that gave rise to those convictions:
"In early 2016 Thomas Hubbard was the leader of the
gang Almighty Imperial Gangsters. That gang consisted of
Hubbard, Capote, Benjamin Young, De'Vontae Bates, Austin
Hammonds, Michael Blackburn, and Trey Hamm. On
February 28, 2016, Hubbard's residence was burglarized.
Several items were taken during the burglary, including
Hamm's Xbox video-game console. Hubbard informed the
gang that he was going to find out who had burglarized his
house and kill him or her.
"Hammonds and Bates learned that Ki-Jana Freeman
was selling an Xbox in an online marketplace. They suggested
to Hubbard that Freeman might have been the person that
had stolen Hamm's Xbox. The gang held a meeting and
decided to kill Freeman if he was responsible for the burglary.
The gang formulated a plan in which Hammonds would meet
with Freeman to determine if the Xbox Freeman was selling
was the one that had been stolen during the burglary.
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Hammonds contacted Freeman via an instant message on the
social-media Web site Facebook, asking if Freeman had a
green, Halo Edition Xbox for sale. Freeman and Hammonds
exchanged several messages about the Xbox, but they never
met to conduct a transaction. Hammonds, though,
represented to Hubbard that he had met with Freeman,
telling Hubbard that he thought the Xbox Freeman was
selling was the one stolen during the burglary.
"On March 1, 2016, Bates contacted Freeman,
purportedly seeking to purchase acid, a hallucinogenic drug.
Bates and Freeman agreed to meet at 10:00 p.m. at the Spring
Creek Apartments. Bates did not go to the apartment
complex; instead, Capote, Young, Hubbard, and Hamm went
to the complex in a white truck and waited for Freeman to
arrive. Bates sent a text message to Freeman asking him for
his location and what kind of vehicle he was driving. Freeman
responded that he was about to arrive at the apartment
complex and that he was driving a blue Ford Mustang
automobile. Bates relayed Freeman's response to his fellow
gang members in the truck. When he arrived at the
apartment complex, Freeman parked his Mustang in the back
parking lot near a dumpster. The white truck pulled behind
Freeman. Young and Capote got out of the truck and began
firing their weapons at the Mustang. After firing multiple
rounds, Young and Capote got back in the truck and left.
Freeman was shot multiple times and was pronounced dead
shortly after arriving at the hospital. Tyler Blythe, Freeman's
friend who had ridden with Freeman to the apartment
complex, was shot 13 times but survived his injuries.
"During the investigation, law-enforcement officers
obtained a video from surveillance cameras at the apartment
complex that had recorded the shooting. Hammonds and
Bates identified Capote as one of the shooters in the video.
Shawn Settles, Hubbard's cellmate at the county jail, gained
Hubbard's trust and learned the location of an assault rifle
used in the shooting. Settles told law-enforcement officers
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where they could find the rifle, which led to its recovery.
Testing of the rifle and the bullets established that the rifle
had been used in the shooting."
Capote v. State, 323 So. 3d 104, 112-13 (Ala. Crim. App. 2020) (footnote
omitted).
For defendants who are sentenced to death after August 1, 2017,
the time for filing a Rule 32 petition is governed by the Fair Justice Act
("the FJA"), codified at § 13A-5-53.1, Ala. Code 1975. 1 In pertinent part,
the FJA states:
"(b) Post-conviction remedies sought pursuant to Rule
32 of the Alabama Rules of Criminal Procedure in death
penalty cases shall be pursued concurrently and
simultaneously with the direct appeal of a case in which the
death penalty was imposed. …
"(c) A circuit court shall not entertain a petition for post-
conviction relief from a case in which the death penalty was
imposed on the grounds specified in Rule 32.1(a) of the
Alabama Rules of Criminal Procedure unless the petition,
including any amendments to the petition, is filed within 365
days of the filing of the appellant defendant's first brief on
direct appeal of a case in which the death penalty was
imposed pursuant to the Alabama Rules of Appellate
Procedure.
"(d) A circuit court, before the filing date applicable to
the defendant under subsection (c), for good cause shown and
after notice and an opportunity to be heard from the Attorney
1The FJA does not apply retroactively to defendants who were
sentenced to death on or before August 1, 2017. § 13A-5-53.1(j).
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General, or other attorney representing the State of Alabama,
may grant one 90-day extension that begins on the filing date
applicable to the defendant under subsection (c)."
In this case, Capote filed the initial brief for his direct appeal on
April 5, 2019, and the Rule 32 petition he desired to file sought relief
under Rule 32.1(a) by asserting ineffective-assistance-of-counsel claims.
See Ex parte Pierce, 851 So. 2d 606, 614 (Ala. 2000) ("Rule 32.1(a) is the
… provision that allows a defendant to raise an ineffective-assistance-of-
counsel claim in a postconviction proceeding."). Thus, pursuant to § 13A-
5-53.1(c), Capote was required to file his Rule 32 petition within 365 days
of April 5, 2019. However, pursuant to § 13A-5-53.1(d), Capote sought
and was granted a 90-day extension, which extended the deadline for
filing the petition to July 6, 2020. 2
On July 1, 2020, Capote filed his Rule 32 petition with the
assistance of counsel. As a threshold matter, Capote's counsel requested
a stay of the Rule 32 proceedings, arguing that they had "not yet had a
full opportunity to investigate Capote's case and prepare a Rule 32
petition that present[ed] all of his claims." (C. 24.) In support of that
2The 90-day period actually expired on July 4, 2020, which was a
Saturday. Thus, the deadline for filing the petition was extended to July
6, 2020. See Rule 1.3, Ala. R. Crim. P.
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argument, Capote's counsel, who are based in New York, claimed that
they "took on [Capote's] postconviction representation" (C. 6) "in late
February 2020" (C. 231), "just as the COVID-19 pandemic hit" (C. 6), and
that, as a result of the pandemic, they had been unable to "travel[ ] to
Colbert County to interview people" (C. 7) or to have confidential
telephone conversations with Capote because his prison calls were
monitored. Capote's counsel noted, though, that "[w]hat [they] had seen
to date" in their "careful review of the trial record" indicated that Capote's
trial counsel had not provided him with effective representation, and they
raised multiple ineffective-assistance-of-counsel claims based upon that
review, with the caveat that they "suspect[ed] that there [were] still more
shortcomings to bring to the [circuit court's] attention." (Id.)
On July 14, 2020, the State filed an opposition to Capote's request
for a stay of the Rule 32 proceedings, arguing that the circuit court had
no power to issue a stay because, the State said, the FJA "does not
contemplate the granting of stays." (C. 29.) Alternatively, the State
argued that Capote "was first assigned Rule 32 counsel in June 2018"
and had "had consistent Rule 32 counsel since at least July 9, 2019." (C.
30.) Thus, according to the State, Capote had "had over two years in
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which to investigate and pursue his Rule 32 claims" and had "been
represented by counsel" during "the majority of that time." (Id.) The
State also filed an answer to Capote's petition, arguing that his claims
were due to be summarily dismissed because they were insufficiently
pleaded or were without merit.
On March 15, 2021, the State filed a motion seeking a ruling on
Capote's petition, noting that, pursuant to the FJA, the circuit court was
required to rule on Capote's petition within 180 days of the date the
certificate of judgment issued in his direct appeal, see § 13A-5-53.1(e),
and that the deadline would expire in two days. The next day, the State
submitted a proposed order summarily dismissing Capote's petition, and,
the following day, the circuit court adopted the proposed order verbatim.
The circuit court's order did not acknowledge Capote's request for a stay.
Capote subsequently filed a motion to reconsider in which he argued,
among other arguments, that, by adopting the State's proposed order
verbatim, the circuit court had "failed to provide an independent review
of the issues." (C. 231.) The circuit court did not rule on that motion, and
Capote filed a timely notice of appeal.
Discussion
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On appeal, Capote raises multiple claims that, he says, require this
Court to reverse the summary dismissal of his Rule 32 petition.
I.
Capote first argues that the circuit court erred by adopting
verbatim the State's proposed order dismissing his Rule 32 petition. In
support of that argument, Capote cites Ex parte Ingram, 51 So. 3d 1119(Ala. 2010), in which the Alabama Supreme Court addressed the same
claim. In reversing this Court's decision affirming the circuit court's
order in that case, the Alabama Supreme Court stated:
"[T]he general rule is that, where a trial court does in fact
adopt the [State's] 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 [S]tate's
proposed findings and conclusions is subject to
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
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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').
"In this unusual case, however, we cannot conclude that
the above-stated 'general rule' is applicable. That is, despite
the fact that [Judge William E. Hollingsworth] signed the
June 8 order, we cannot conclude that the findings and
conclusions in that order are in fact those of the court itself.
"The June 8 order begins as follows:
" 'Having considered the first amended Rule
32 petition presented to the Court, the State of
Alabama's amended answer, the State of
Alabama's motions to dismiss, the evidence
presented at trial, and the events within the
personal knowledge of the Court, the Court makes
the following findings of fact and conclusions of
law and summarily dismisses and denies the
claims in Ingram's first amended Rule 32 petition.'
"(Emphasis added.) After a rendition of the facts of the case,
the June 8 order states:
" 'The findings by the Court of Criminal Appeals
[on direct appeal of Ingram's conviction] guide the
Court in its resolution of the issues presented in
the first amended Rule 32 petition. The Court is
also relying on the trial transcript where
necessary to support the Court's findings and the
resolution of this Rule 32 petition. In addition,
this Court presided over Ingram's capital murder
trial and personally observed the performance of
both lawyers throughout Ingram's trial and
sentencing.'
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"(Emphasis added.)
"The obvious problem with the emphasized portions of
the above-quoted passages from the June 8 order is that Judge
[Jerry L.] Fielding, not Judge Hollingsworth, presided over
Ingram's capital-murder trial. Although minor factual errors
understandably find their way into orders drafted by trial
courts in handling busy dockets, an error as to whether the
judge in fact sat as the trial judge in a capital-murder trial
and is basing his decision on personal observations and
personal knowledge acquired by doing so is the most material
and obvious of errors.
"….
"We are forced by the nature of the errors present in the
June 8 order to reverse the judgment of the Court of Criminal
Appeals. In the simplest terms, the patently erroneous
nature of the statements regarding the trial judge's 'personal
knowledge' and observations of Ingram's capital-murder trial
undermines any confidence that the trial court's findings of
fact and conclusions of law are the product of the trial judge's
independent judgment and that the June 8 order reflects the
findings and conclusions of that judge."
Ex parte Ingram, 51 So. 3d at 1122-25.
Capote argues that the circuit court's order in this case "include[s]
the same 'patently erroneous' statement regarding the judge's having
presided over the trial and having 'personal knowledge of the underlying
facts' that led the [Alabama Supreme] Court to reverse in Ex parte
Ingram." (Capote's brief, p. 17 (quoting Ex parte Ingram, 51 So. 3d at
10
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1125).) In support of that argument, Capote notes that Judge Harold
Hughston, Jr., presided over his trial and that Judge Jacqueline Hatcher
ruled on his Rule 32 petition, yet the order dismissing his petition
includes the following language:
"Finally, 'a judge who presided over the trial or other
proceeding and observed the conduct of the attorneys at the
trial or other proceeding need not hold a hearing on the
effectiveness of those attorneys based upon conduct that he
observed.' Ex parte Hill, 591 So. 2d 462, 463 (Ala. 1991). This
provision is applicable in the present matter. Thus, in
assessing Capote’s claims, 'if [this Court] has personal
knowledge of the actual facts underlying the allegations in the
petition, he may deny the petition without further
proceedings so long as he states the reasons for the denial in
a written order.' Boyd [v. State], 913 So. 2d [1113,] 1126 [(Ala.
Crim. App. 2003)]." 3
(C. 188.)
It is true that Judge Hatcher's order acknowledges the principle
that a judge who presided over a defendant's trial can summarily dismiss
an ineffective-assistance-of-counsel claim based upon the judge's
personal observation of counsel's performance. It is also true that the
order states that "[t]his provision is applicable in the present matter,"
3Capote notes that the same language from Ex parte Hill, 591 So.
2d 462 (Ala. 1991), that was quoted in this part of the order was repeated
once later in the order.
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despite the fact that Judge Hatcher did not preside over Capote's trial.
However, nowhere in the order did Judge Hatcher state that she had in
fact presided over Capote's trial or that she had based her decision on her
personal knowledge of his counsel's performance. To the contrary, the
order states that Judge Hatcher's findings were based on "the pleadings
filed in this matter" (C. 182) and "the face of the record." (C. 194.) In
addition, we note that the language Capote cites is included in a part of
the order that sets forth other general principles of law that are typically
applicable in Rule 32 proceedings. (C. 185-88.) We also note that the
statement "[t]his provision is applicable in the present matter" is
qualified by the next sentence, which states that Judge Hatcher could
deny Capote's petition without further proceedings if she had personal
knowledge of his counsel's performance. Thus, we disagree with Capote's
argument that the circuit court's order in this case contains the same
"patently erroneous" statements that were present in Ex parte Ingram.
Id. at 1125, where the judge's order unequivocally stated that he had
presided over the petitioner's trial, that he had personally observed the
performance of the petitioner's counsel, and that he had based his
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findings in part on the knowledge he had gleaned from those
observations.
Capote notes, though, that the Alabama Supreme Court has
clarified that Ex parte Ingram "should not be read as entitling a
petitioner to relief in only those factual scenarios similar to those
presented in [that case]." Ex parte Jenkins, 105 So. 3d 1250, 1260 (Ala.
2012). Instead, the Court has explained: "A Rule 32 petitioner would be
entitled to relief in any factual scenario when the record before [the
reviewing] Court clearly establishes that the order signed by the trial
court denying postconviction relief is not the product of the trial court's
independent judgment." Id. However, the only additional facts Capote
cites in support of this claim are that the State submitted the 49-page
proposed order at 4:26 p.m. on March 16, 2021, and that the circuit court
signed the order the following day. But the mere fact that a circuit court
adopts a State's proposed order, even a somewhat lengthy one, the day
after the proposed order was submitted to the court is not a fact that
"clearly establishes" that the court's order was not the product of the
court's independent judgment. Ex parte Jenkins, 105 So. 3d at 1260. See
Mashburn v. State, 148 So. 3d 1094 (Ala. Crim. App. 2013) (affirming the
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circuit court's verbatim adoption of the State's 65-page proposed order,
which the court adopted two days after the State submitted it).
In short, the circuit court's order in this case does not contain the
same "patently erroneous" statements that were present in Ex parte
Ingram, id. at 1125, and there is nothing in the record that "clearly
establishes" that the order was not the product of the court's independent
judgment. Ex parte Jenkins, 105 So. 3d at 1260 (emphasis added). In
the absence of such evidence, "deference is owed to that order in the same
measure as any other order of the [circuit] court." Ex parte Ingram, 51
So. 3d at 1122. Thus, Capote is not entitled to relief on this claim. See
Lee v. State, 244 So. 3d 998, 1002 (Ala. Crim. App. 2017) (affirming the
circuit court's verbatim adoption of the State's proposed order because
the court's order "contain[ed] no patently erroneous statements as was
the case in Ex parte Ingram" and there was no indication in the record
that the order "was anything but the court's own independent
judgment").
II.
Capote next argues that the circuit court erred by refusing to grant
his request for a stay of the Rule 32 proceedings. Although the circuit
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court did not expressly rule on that request, Capote interprets the court's
summary dismissal of his petition as an implicit denial of the request.
(Capote's brief, p. 20.) In addressing this claim, we are mindful of the
fact that a circuit court has broad discretion in determining whether to
grant a request for a stay. Ex parte Doe, 344 So. 3d 877, 879 (Ala. 2021).
The basis for Capote's request for a stay was that his counsel had
"not yet had a full opportunity to investigate [his] case and prepare a
Rule 32 petition that present[ed] all of his claims" because his counsel
did not enter the case until "late February 2020," "just as the COVID-19
pandemic hit." The State's response was that a stay was unwarranted
because Capote "was first assigned Rule 32 counsel in June 2018" and
had "had consistent Rule 32 counsel since at least July 9, 2019." Thus,
according to the State, at the time Capote requested a stay, he had "had
over two years in which to investigate and pursue his Rule 32 claims"
and had "been represented by counsel" during "the majority of that time."
Capote has not disputed – either below or on appeal – that he was
first appointed Rule 32 counsel in June 2018 and that he has had
consistent Rule 32 counsel since July 2019. In fact, Capote's counsel
conceded at oral argument before this Court that, at the time they
15
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requested a stay, Capote had been represented by Rule 32 counsel for
approximately two years. Thus, it appears to be undisputed that, at the
time Capote's counsel entered the case in February 2020, Capote had
been represented by other Rule 32 counsel for approximately 20 months
and had been represented by consistent Rule 32 counsel for the previous
7 months, which was ample time for his former counsel to investigate his
case for potentially viable postconviction claims.
Capote argues, however, that his former Rule 32 counsel "took no
action on his behalf" – an alleged fact that, he says, "is not surprising"
because "few post-conviction lawyers would have sprung into action"
before his direct appeal was resolved. (Capote's brief, pp. 21-22.) But
Capote never raised this argument below, even after the State made a
point of drawing the circuit court's attention to the fact that Capote had
long been represented by other Rule 32 counsel before his current counsel
entered the case. "We cannot consider evidence or factual assertions that
were not presented to the [circuit] court before it made its determination
on [Capote's request for a stay]." Ex parte Alabama Dep't of Labor, 214
So. 3d 356, 360 (Ala. Civ. App. 2015). See also Magwood v. State, 494 So.
2d 124, 138 n.3 (Ala. Crim. App. 1985) (considering only those facts that
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were presented to the trial court in reviewing the court's denial of a
motion to suppress); and Moore v. Mikul, [No. 1200671, Jan. 21, 2022]
___ So. 3d ___, ___ (Ala. 2022) (" 'This Court cannot consider arguments
advanced for the purpose of reversing the judgment of a trial court when
those arguments were never presented to the trial court for consideration
or were raised for the first time on appeal.' " (quoting State Farm Mut.
Auto. Ins. Co. v. Motley, 909 So. 2d 806, 821 (Ala. 2005))). To hold that a
circuit court exceeded its discretion in refusing to issue a stay based on
facts that were never presented to the court would fly in the face of this
rule.
Given the facts that were presented to the circuit court, the court
could have reasonably concluded that Capote's former Rule 32 counsel
had been actively investigating his case for anywhere from 7 to 20
months before his current counsel entered the case. Indeed, although
Capote argues that "few post-conviction lawyers would have sprung into
action" before his direct appeal was resolved, the FJA requires that a
Rule 32 petition in a death-penalty case "shall be pursued concurrently
and simultaneously with the direct appeal." § 13A-5-53.1(b). Thus,
because Capote never alleged that his former Rule 32 counsel had
17
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"t[aken] no action on his behalf," there was every reason for the circuit
court to believe that his former counsel had actively investigated his case.
And there was no reason for the circuit court to believe that Capote's
current counsel could not have consulted with his former Rule 32 counsel
to learn of any potentially viable postconviction claims that former
counsel had discovered. Moreover, despite Capote's claim that his
current counsel had "not yet had a full opportunity to investigate [his]
case," they were able to raise multiple ineffective-assistance-of-counsel
claims that they had discovered from their review of the record. For those
reasons, we cannot say that the circuit court exceeded its broad discretion
by refusing to issue a stay of the Rule 32 proceedings so that Capote's
current counsel could further investigate the case. Thus, Capote is not
entitled to relief on this claim.
III.
Capote's final argument is that the circuit court erred by summarily
dismissing his ineffective-assistance-of-counsel claims. Because the
circuit court based its ruling on a " 'cold trial record,' we apply a de novo
standard of review" in determining whether summary dismissal of
Capote's claims was proper. Harris v. State, [Ms. CR-19-0231, July 9,
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2021] ___ So. 3d ___, ___ (Ala. Crim. App. 2021) (quoting Ex parte Hinton,
172 So. 3d 348, 352 (Ala. 2012)).
"To prevail on a claim of ineffective assistance of counsel, the
petitioner must meet the standard articulated by the United
States Supreme Court in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner
must show: (1) that counsel's performance was deficient, and
(2) that the petitioner was prejudiced by his counsel's deficient
performance. 466 U.S. at 687, 104 S. Ct. 2052. 'To meet the
first prong of the test, the petitioner must show that his
counsel's representation fell below an objective standard of
reasonableness. The performance inquiry must be whether
counsel's assistance was reasonable, considering all the
circumstances.' Ex parte Lawley, 512 So. 2d 1370, 1372 (Ala.
1987). ' "This court must avoid using 'hindsight' to evaluate
the performance of counsel. We must evaluate all the
circumstances surrounding the case at the time of counsel's
actions before determining whether counsel rendered
ineffective assistance." ' Lawhorn v. State, 756 So. 2d 971, 979
(Ala. Crim. App. 1999) (quoting Hallford v. State, 629 So. 2d
6, 9 (Ala. Crim. App. 1992)). 'A court must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.' Strickland, 466
U.S. at 689, 104 S. Ct. 2052. As the United States Supreme
Court explained:
" 'Judicial scrutiny of counsel's performance
must be highly deferential. It is all too tempting
for a defendant to second-guess counsel's
assistance after conviction or adverse sentence,
and it is all too easy for a court, examining
counsel's defense after it has proved unsuccessful,
to conclude that a particular act or omission of
counsel was unreasonable. A fair assessment of
attorney performance requires that every effort be
made to eliminate the distorting effects of
19
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hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the
evaluation, a court must indulge a strong
presumption that counsel's conduct falls within
the wide range of reasonable professional
assistance; that is, the defendant must overcome
the presumption that, under the circumstances,
the challenged action "might be considered sound
trial strategy." There are countless ways to
provide effective assistance in any given case.
Even the best criminal defense attorneys would
not defend a particular client in the same way.'
"Strickland, 466 U.S. at 689, 104 S. Ct. 2052 (citations
omitted). To meet the second prong of the test, the petitioner
'must show 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 reasonable probability is a probability sufficient to
undermine confidence in the outcome.' Id. 'It is not enough
for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.' Id. at
693, 104 S. Ct. 2052. 'The likelihood of a different result must
be substantial, not just conceivable.' Harrington v. Richter,
562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).
"Rule 32.3, Ala. R. Crim. P., provides that '[t]he
petitioner shall have the burden of pleading ... the facts
necessary to entitle the petitioner to relief.' Rule 32.6(b), Ala.
R. Crim. P., requires that the petition '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.' As this Court noted in Boyd v.
State, 913 So. 2d 1113 (Ala. Crim. App. 2003):
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" ' "Rule 32.6(b) requires that the petition
itself disclose the facts relied upon in seeking
relief." Boyd v. State, 746 So. 2d 364, 406 (Ala.
Crim. App. 1999). In other words, it is not the
pleading of a conclusion "which, if true, entitle[s]
the petitioner to relief." Lancaster v. State, 638
So. 2d 1370, 1373 (Ala. Crim. App. 1993). It is the
allegation of facts in pleading which, if true, entitle
a petitioner to relief. After facts are pleaded,
which, if true, entitle the petitioner to relief, the
petitioner is then entitled to an opportunity, as
provided in Rule 32.9, Ala. R. Crim. P., to present
evidence proving those alleged facts.'
"913 So. 2d at 1125.
" 'The burden of pleading under Rule 32.3
and Rule 32.6(b) is a heavy one. Conclusions
unsupported by specific facts will not satisfy the
requirements of Rule 32.3 and Rule 32.6(b). The
full factual basis for the claim must be included in
the petition itself. If, assuming every factual
allegation in a Rule 32 petition to be true, a court
cannot determine whether the petitioner is
entitled to relief, the petitioner has not satisfied
the burden of pleading under Rule 32.3 and Rule
32.6(b). See Bracknell v. State, 883 So. 2d 724(Ala. Crim. App. 2003). 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
21
CR-20-0537
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)."
Stanley v. State, 335 So. 3d 1, 22-24 (Ala. Crim. App. 2020).
"Rule 32.7(d), Ala. R. Crim. P., authorizes the circuit
court to summarily dismiss a petitioner's Rule 32 petition
" '[i]f the court determines that the petition is not
sufficiently specific, or is precluded, or fails to
state a claim, or that no material issue of fact or
law exists which would entitle the petitioner to
relief under this rule and that no purpose would be
served by any further proceedings ...'
"See also Hannon v. State, 861 So. 2d 426, 427 (Ala. Crim.
App. 2003); Cogman v. State, 852 So. 2d 191, 193 (Ala. Crim.
App. 2002); Tatum v. State, 607 So. 2d 383, 384 (Ala. Crim.
App. 1992). In addition, ' " '[w]here 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.' " ' Bryant v. State, 181 So. 3d 1087,
1102 (Ala. Crim. App. 2011) (quoting Bishop v. State, 608 So.
2d 345, 347-48 (Ala. 1992) (quoting in turn Bishop v. State,
592 So. 2d 664, 667 (Ala. Crim. App. 1991) (Bowen, J.,
dissenting))). Summary disposition is also appropriate where
the record directly refutes a Rule 32 petitioner's claim."
Shaw v. State, 148 So. 3d 745, 764-65 (Ala. Crim. App. 2013). With these
principles in mind, we address the circuit court's summary dismissal of
22
CR-20-0537
Capote's ineffective-assistance-of-counsel claims, which the court
dismissed on the basis that they were either insufficiently pleaded or
facially without merit.
A. Guilt-Phase Claims
1.
Capote's first ineffective-assistance-of-counsel claim alleged that
his counsel (1) acknowledged his affiliation with the Almighty Imperial
Gangsters during the opening statement and (2) "elicit[ed] detailed
testimony about the activities of the Almighty Imperial Gangsters" while
cross-examining three State's witnesses. (C. 14.) According to Capote,
by acknowledging his gang affiliation and eliciting evidence of the gang's
"activities," his counsel "gave the jury reason to believe that [he] was an
incorrigible criminal who was guilty of murder and should not live among
them." (Id.)
a. Defense Counsel's Opening Statement
We first address Capote's allegation that his counsel rendered
ineffective assistance by acknowledging his gang affiliation during the
opening statement. Specifically, Capote alleged that, even though "the
prosecutor did not mention gang affiliation in her opening address," his
23
CR-20-0537
counsel told the jury "that [Freeman's] murder was in direct response to
a burglary, which was an affront to the gang," and that the gang's
"original plan was to kidnap, torture, and kill [Freeman]." (C. 13.)
However, it was inevitable that Capote's gang affiliation and the reason
for Freeman's murder would be established at trial, and indeed they
were; as Capote noted on direct appeal, "the State mentioned Capote's
gang affiliation more than 40 times during the guilt and penalty phases
of trial," Capote, 323 So. 3d at 146, and the State presented evidence
indicating that Freeman was murdered because the gang believed he had
burglarized its leader's house. (R. 824.) And, although it is true that the
State did not present evidence regarding the gang's "original plan" to
kidnap and torture Freeman, it was reasonable for Capote's counsel to
believe that such evidence would be forthcoming.
"Where defense counsel in opening statement recognizes and
candidly asserts the inevitable, he is often serving his client's interests
best by bringing out the damaging information and thus lessening the
impact." People v. Wise, 134 Mich. App. 82, 98, 351 N.W.2d 255, 263
(1984). Thus, because it appeared inevitable that the State would
present evidence of Capote's gang affiliation and the gang's "plans" for
24
CR-20-0537
Freeman, "an attorney exercising professional skill and judgment could
reasonably have concluded that the best strategy was to be candid from
the start about the evidence that the jury would likely hear." Rudnitskyy
v. State, 303 Or. App. 549, 558, 464 P.3d 471, 478 (2020). See State v.
Taylor (No. 12AP-870, Aug. 27, 2013) (Ohio Ct. App. 2013) (unpublished
decision) ("This court will not second-guess what appears to have been a
tactical decision made by defense counsel to foreclose the sting of
appellant's alleged gang affiliation by mentioning it in opening statement
… when defense counsel reasonably could anticipate its admission at
trial.") 4; Torres v. Lopez, (No. CV-10-3537, Dec. 18, 2014) (C.D. Cal. 2014)
(not reported in Federal Supplement) (concluding that counsel had made
"the sort of strategic decision to which reviewing courts must accord
deference" by choosing to acknowledge during the opening statement that
the defendant had once been a member of a gang because "[c]ounsel was
merely acknowledging what would become, given the evidence, plainly
obvious during trial").
44InOhio, unpublished decisions of the Court of Appeals issued
after May 1, 2002, may be cited as legal authority. See Rule 3.4, Ohio
Supreme Court Rules for the Reporting of Opinions.
25
CR-20-0537
As the United States Supreme Court has explained, a defendant
has failed to establish deficient performance by his counsel when "the
challenged action 'might be considered sound trial strategy.' " Strickland
v. Washington, 466 U.S. 668, 689 (quoting Michel v. Louisiana, 350 U.S.
91, 101 (1955)). See also State v. Ray, 469 P.3d 871, 876-77 (Utah 2020)
("If it appears counsel's actions could have been intended to further a
reasonable strategy, a defendant has necessarily failed to show
unreasonable performance." (citing Strickland, supra)). Given the
circumstances of this case, counsel's decision during the opening
statement to acknowledge Capote's gang affiliation and the gang's
"plans" for Freeman could be considered sound trial strategy. Thus,
Capote failed to establish that his counsel performed deficiently during
the opening statement, and summary dismissal of this claim was
therefore proper. Shaw, 148 So. 3d at 764-65. See also Miller v. State, 1
So. 3d 1073, 1078 (Ala. Crim. App. 2007) (holding that summary
dismissal was proper because the facts the petitioner pleaded, even if
true, did not establish that his counsel had performed deficiently); and
Stallworth v. State, 171 So. 3d 53, 79 (Ala. Crim. App. 2013) (" 'A trial
court may summarily dismiss a post-conviction petition [on a claim of
26
CR-20-0537
ineffective assistance of counsel] when it is clear upon the face of the
petition itself … that there are no facts upon which the petitioner could
prevail.' " (quoting Fairley v. State, 812 So. 2d 259, 262 (Miss. Ct. App.
2002))).
b. Defense Counsel's Cross-Examination
We next address Capote's allegation that his counsel rendered
ineffective assistance by "eliciting detailed testimony about the activities
of the Almighty Imperial Gangsters" while cross-examining three State's
witnesses. Specifically, Capote alleged that his counsel elicited
testimony "that the gang met every Thursday night"; "that dues were $7
every week"; "that the gang sold marijuana to support itself"; that the
gang's "original plan was to kidnap [Freeman], torture him, cut his
fingers off, and kill him"; "that two gang members [(other than Capote)]
had stolen the [assault] rifle" used in Freeman's murder; "that the gang
was trying to be like the Crips and Bloods"; that the gang's leader had
come from a gang in Chicago; "that one person had left the gang" and the
gang was "still looking for him"; that the gang's "sign" is a diamond; that
Capote provided younger gang members with marijuana to sell; that
Capote and another gang member had stolen the white truck that had
27
CR-20-0537
carried the two shooters to the scene of Freeman's murder; and that, a
few days before Freeman's murder, two gang members (other than
Capote) had been "ripped off" in a drug deal, which had resulted in "a
gunfight." (C. 13-14.) As noted, Capote alleged that, by eliciting such
testimony, his counsel "gave the jury reason to believe that [he] was an
incorrigible criminal who was guilty of murder and should not live among
them." 5
Initially, we note that " ' "[t]he method and scope of cross-
examination 'is a paradigm of the type of tactical decision that
[ordinarily] cannot be challenged as evidence of ineffective assistance of
counsel.' " ' " Stanley, 335 So. 3d at 37 (quoting Davis v. State, 44 So. 3d
1118, 1135 (Ala. Crim. App. 2009), quoting in turn State ex rel. Daniel v.
Legursky, 195 W. Va. 314, 328, 465 S.E.2d 416, 430 (1995), quoting in
turn Hutchins v. Garrison, 724 F.2d 1425, 1436 (4th Cir. 1983)). See also
5Some of the testimony Capote cited reflected negatively on him
specifically – namely, that he provided younger gang members with
marijuana to sell and that he had been involved in the theft of the white
truck. However, Capote's argument was not that his counsel rendered
ineffective assistance by eliciting testimony of his collateral acts. See
Rule 404(b), Ala. R. Evid. Instead, Capote's argument was that his
counsel rendered ineffective assistance by eliciting testimony of the
"activities" of the Almighty Imperial Gangsters as a whole.
28
CR-20-0537
A.G. v. State, 989 So. 2d 1167, 1173 (Ala. Crim. App. 2007) (" '[D]ecisions
regarding whether and how to conduct cross-examinations and what
evidence to introduce are matters of trial strategy and tactics.' " (quoting
Rose v. State, 258 Ga. App. 232, 236, 573 S.E.2d 465, 469 (2002))).
Regardless, even if we assume that the scope of counsel's cross-
examination was objectively unreasonable in this case, which we do not,
Capote cannot demonstrate that he was prejudiced by the cross-
examination because "there is [not] a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 694. See Bryant v. State, 181 So.
3d 1087, 1165 n.13 (Ala. Crim. App. 2011) (opinion on return to remand)
("Because we conclude that Bryant was not prejudiced, we need not
specifically address whether counsel's performance was deficient.").
First, we reiterate that Capote's gang affiliation permeated the
trial, and some of the testimony regarding the gang's "activities" was
wholly innocuous, such as its meeting schedule, its weekly dues, the fact
that its "sign" is a diamond, and the fact that its leader had come from
Chicago. There is little to no chance, and certainly not a reasonable
probability, that this testimony influenced the jury's verdict. It is true
29
CR-20-0537
that the rest of the testimony Capote cited tended to indicate that the
gang was generally involved in violence, illicit drugs, and theft, but that
fact likely would have come as no surprise to the jury. As the Louisiana
Supreme Court has observed, "it is common knowledge that gang
members engage in drug-related and violent crimes," and, thus, evidence
to that effect would "hardly be … surprising to the jury." State v. Cooks,
720 So. 2d 637, 650 (La. 1998). See also United States v. Wright, (No. 02-
00116-03, Aug. 29, 2006) (W.D. Mo. 2006) (not reported in Federal
Supplement) (noting that the fact that "drug deals or violence are
symptomatic of gangs … falls within the realm of [a juror's] common
sense conclusions"). Moreover, the State presented evidence indicating
that the gang was prone to violence and involved with illicit drugs.
Furthermore, there was substantial evidence of Capote's guilt, and
that evidence was not circumstantial. Freeman's murder was captured
on a surveillance-camera video, and two other gang members identified
Capote as one of the two shooters on the video. Granted, as suspects
themselves, those gang members had incentive to pin the murder on
Capote, but the State also introduced a handwritten letter Capote had
30
CR-20-0537
sent to the gang's leader while they were incarcerated together, and
Capote admitted in that letter that he had killed Freeman. (R. 1219.)
In short, Capote's gang affiliation was well established by the
State's evidence; the State's evidence indicated that the gang was prone
to violence and involved with illicit drugs; the jurors' common sense
would have told them that the gang was likely involved in criminal
conduct; and there was substantial evidence of Capote's guilt, including
his confession to another gang member. Given those facts, there is not a
reasonable probability that the jury would have reached a different
verdict in the absence of testimony regarding some of the gang's specific
"activities." Thus, even if it was objectively unreasonable for Capote's
counsel to elicit such testimony – and we do not suggest that it was –
Capote cannot establish that he was prejudiced by the allegedly deficient
performance. See Ex parte Martinez, 330 S.W.3d 891, 904 (Tex. Crim.
App. 2011) (holding that, given the "ample evidence" of the defendant's
guilt, it was "unlikely … that the jury would have reached a different
conclusion in the absence of the gang-related evidence"); and Henderson
v. Cockrell, 333 F.3d 592, 603 (5th Cir. 2003) (holding that there was "not
a reasonable probability that the evidence of [the defendant's] gang
31
CR-20-0537
affiliation affected the outcome of the … trial," especially given "the
extremely strong evidence of his guilt, including his confession to his
cellmate"). Accordingly, summary dismissal of this claim was proper.
See Wimbley v. State, [Ms. CR-20-0201, Dec. 16, 2022] ___ So. 3d ___, ___
(Ala. Crim. App. 2022) ("Because Wimbley cannot establish prejudice
under Strickland, the circuit court properly dismissed this claim.").
2.
Capote's second ineffective-assistance-of-counsel claim alleged that
his counsel "conducted a cursory voir dire that fell far below the standard
expected from a competent lawyer in a capital case." (C. 15.) In support
of that claim, Capote alleged only the following facts: "The entire voir dire
covers less than 60 pages of the trial transcript and is anything but
probing. The questions are general, and the answers reveal little." (Id.
(citations to record omitted).)
In Stanley, supra, the appellant raised a similar claim, arguing that
his counsel "conducted only 'a cursory voir dire examination covering a
mere 20 transcript pages.' " Stanley, 335 So. 3d at 47 (citation to record
omitted). This Court held that the appellant's claim was insufficiently
pleaded, however, because he had "failed to allege in his petition what
32
CR-20-0537
specific questions he believed counsel should have asked or what
responses he thought he would have received to such questions." Id. at
48. The Court reached the same conclusion in Bryant, supra, holding
that the appellant's claim was insufficiently pleaded because he had
"failed to specifically identify what additional questions he believe[d]
counsel should have asked the venire." Bryant, 181 So. 3d at 1107.
Like the appellants in Stanley and Bryant, Capote did not identify
in his petition the specific questions he believed his counsel should have
asked during voir dire. Thus, Capote failed to plead this claim with the
specificity required by Rule 32.3 and Rule 32.6(b), and summary
dismissal of the claim was therefore proper. Shaw, 148 So. 3d at 764.
3.
Capote's third ineffective-assistance-of-counsel claim alleged that
his counsel "failed to ensure that the instructions provided to the jury
accurately stated the law." (C. 15.) Specifically, Capote alleged that his
counsel should have objected to the trial court's capital-murder
instruction because, he said, "the jury was not properly instructed that
33
CR-20-0537
the critical element of capital murder is that the defendant have a specific
intent to kill."6 (Id.)
On direct appeal, Capote raised the underlying claim upon which
this ineffective-assistance-of-counsel claim is based, i.e., that the trial
court "failed to instruct the jury that capital murder requires a real and
specific intent to kill." Capote, 323 So. 3d at 129. Capote also argued
that this alleged error was compounded by the trial court's accomplice-
liability instruction, which, he argued, allowed the jury to convict him of
capital murder under the felony-murder standard. Because Capote did
not object to the jury instructions, this Court reviewed his claim for plain
error and found none because, we reasoned, there was "no reasonable
likelihood that the jurors applied the challenged instructions in an
improper manner." Id. at 131.
6Capote also alleged that his counsel should have objected to the
trial court's reasonable-doubt instruction, which, he said, "deviated from
the Alabama Pattern Jury Instruction and did so in ways that eased the
prosecution's burden." (C. 15.) We do not consider that claim, however,
because Capote has not reasserted it on appeal, and it is thus deemed
abandoned. See Brownfield v. State, 266 So. 3d 777, 795 n.8 (Ala. Crim.
App. 2017) ("Those claims of ineffective assistance of trial counsel raised
in Brownfield's petition but not pursued on appeal are deemed
abandoned and will not be considered by this Court.").
34
CR-20-0537
In Ex parte Taylor, 10 So. 3d 1075, 1078 (Ala. 2005), the Alabama
Supreme Court explained that "a determination on direct appeal that
there has been no plain error does not automatically foreclose a
determination of the existence of the prejudice required under Strickland
to sustain a claim of ineffective assistance of counsel." "However, Ex
parte Taylor applies only to the prejudice prong of Strickland, not to the
deficient-performance prong." Woodward v. State, 276 So. 3d 713, 769
(Ala. Crim. App. 2018). Thus, where "this Court's holding on direct
appeal establishes that counsel's performance was not deficient, Ex parte
Taylor is inapplicable." Id.In holding on direct appeal that there was no plain error in the jury
instructions, this Court held that the instructions, taken as a whole, had
"properly apprised the jury of the elements of capital murder." Capote,
323 So. 3d at 131. In other words, this Court has already held that the
trial court's capital-murder instruction accurately informed the jury of
the specific intent required for a capital-murder conviction. That holding,
by extension, establishes that there is no merit to the objection that
Capote's counsel allegedly should have raised, and it is well settled that
counsel cannot be deemed ineffective for failing to raise a meritless
35
CR-20-0537
objection. Van Pelt v. State, 202 So. 3d 707, 732 (Ala. Crim. App. 2015).
In short, then, this Court's holding on direct appeal establishes that
Capote's counsel did not perform deficiently by not objecting to the trial
court's capital-murder instruction. Thus, summary dismissal of this
claim was proper. See Woodward, 276 So. 3d at 769 (holding that
summary dismissal of an ineffective-assistance-of-counsel claim was
proper because "this Court's holding on direct appeal establishe[d] that
counsel's performance was not deficient").
4.
Capote's fourth ineffective-assistance-of-counsel claim alleged that
his counsel failed to object to the admission of autopsy photographs,
particularly photographs that showed Freeman's "lungs after they were
removed from his body" and "his rib cage and chest cavity with all of his
organs taken out." (C. 15.) On direct appeal, however, this Court held
that the autopsy photographs were admissible, even though they were
"unpleasant to view," because they tended to "show the extent of the
wounds to Freeman's body." Capote, 323 So. 3d at 126. Thus, this Court
has already determined that there is no merit to the objection that
Capote's counsel allegedly should have raised, and, as we have just noted,
36
CR-20-0537
counsel cannot be deemed ineffective for failing to raise a meritless
objection. Van Pelt, 202 So. 3d at 732. Accordingly, summary dismissal
of this claim was proper. See Carruth v. State, 165 So. 3d 627, 641-42
(Ala. Crim. App. 2014) (holding that summary dismissal was proper
because the objection that counsel allegedly should have raised had no
merit, given that the prosecutor's allegedly objectionable comments were
permissible).
B. Penalty-Phase Claims
1.
Capote's fifth ineffective-assistance-of-counsel claim alleged that
his counsel "failed to stop [Jay Currin, Capote's half-brother,] when
[Currin] went off the rails" while testifying about their mother during the
penalty phase. (C. 17.) Specifically, Capote alleged that his counsel
allowed Currin to provide more "profanity-laced testimony" than "has
[ever] before been uttered in an Alabama court." (C. 16.) In support of
that claim, Capote alleged the following facts:
"Currin testified that his mother 'wanted to fucking take it
out on [Currin and Capote]; that she 'wasn't a fucking parent';
that 'she was a piece of shit'; that one day she 'ditched
[Currin's] ass at a Waffle House with a fucking paper bag . . .
and fucking took off'; that she 'was just a lying ass
motherfucker that didn't want to own up to her own
37
CR-20-0537
responsibilities'; and that she 'ma[de] [Currin] kneel in rice
and fucking chok[ed] him against the wall … beating the fuck
out of [him] whenever she could get her hands on [him].' 'Who
the fuck needs that kind of shit as a kid,' he asked the jury."
(Id. (citations to record omitted).) According to Capote, Currin's
consistent profanity "could not have sat well with [the jury]" and "left the
jury thinking that even the 'good brother' (Currin) was out of control."
(C. 17.)
We know of no authority, and Capote has cited no authority, that
imposed a duty on his counsel to control Currin's profanity. In fact, we
note that it is generally the trial court – not counsel – that has the duty
to control a witness's behavior. See Grayson v. State, 824 So. 2d 804, 841
(Ala. Crim. App. 1999) (noting the trial court's " 'inherent authority … to
control the conduct of the proceedings before it, in order to ensure that
the proper decorum and appropriate atmosphere are established' "
(quoting Hicks-Bey v. United States, 649 A.2d 569, 575 (D.C. App.
1994))); and Lawson v. State, 274 Ind. 419, 431, 412 N.E.2d 759, 768
(1980) (noting "the trial court's duty to manage and control the
proceedings," which "obviously extends to the potentially disruptive
behavior of … witnesses").
38
CR-20-0537
Regardless, it appears that Capote's counsel made a strategic
decision to allow Currin to use profanity throughout his testimony.
During closing arguments, counsel argued:
"You heard from Jay Currin, and that's some of the most
compelling, truthful, heartfelt, gut-wrenching – and I know it
was vile. I know it was profane. I've never heard – in 36
years, I've never heard anybody talk like that in the
courtroom, but he was truthful and he was honest. And that's
the way he feels about [his mother] for the circumstances that
he was put in. ….
"… [Currin is] carrying a burden in his heart and in his
soul and a hatred for his mother that he will never get over,
not without years of serious counseling. You saw it, you felt
it. It was true. It was raw. It was emotional. And it was the
truth."
(R. 1994-95.)
As evidenced by that argument, it appears that counsel believed
Currin's profanity, though "vile," was an effective way to demonstrate the
hatred Currin carries for his and Capote's mother and thus tended to
emphasize just how traumatic their childhood was. As one court has
observed, when a defendant is facing the possibility of a death sentence,
his counsel's attempt to "try talking the jury into a life sentence through
the use of emotional testimony" is a reasonable trial strategy. Foster v.
Strickland, 517 F. Supp. 597, 605 (N.D. Fla. 1981). Although another
39
CR-20-0537
attorney might have determined that Currin's profanity would do more
harm than good for Capote, it was not objectively unreasonable for
Capote's counsel to reach a different conclusion. See Stanley, 335 So. 3d
at 23 (noting that "[t]here are countless ways to provide effective
assistance in any given case" and that "[e]ven the best criminal defense
attorneys would not defend a particular client in the same way" (citation
omitted)); and Duncan v. State, 461 So. 2d 906, 909 (Ala. Crim. App.
1984) (affirming the circuit court's finding that counsel's performance
was not deficient, even though "another attorney might [have made]
different choices or [chosen] different tactics"). Moreover, even if Currin's
profanity did not "s[i]t well" with the jury, there is not a substantial
likelihood that the jury's sentencing verdict would have been different if
only the jury had not been exposed to his profanity. See Stanley, 335 So.
3d at 24 (noting that, to establish prejudice from counsel's deficient
performance, there must be "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have
been different" and that "[t]he likelihood of a different result must be
substantial, not just conceivable" (citations omitted)).
40
CR-20-0537
Based on the foregoing, the facts in Capote's petition, even if true,
do not establish that his counsel performed deficiently during Currin's
testimony, and, even if counsel's performance was deficient, Capote
suffered no prejudice. Thus, summary dismissal of this claim was proper.
See Miller, 1 So. 3d at 1078 (holding that summary dismissal was proper
because the facts the petitioner pleaded, even if true, did not establish
that his counsel had performed deficiently or that he had been prejudiced
by the allegedly deficient performance); and Stallworth, 171 So. 3d at 79("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 … that there are no facts upon which the petitioner
could prevail." (citation omitted)).
2.
Capote's sixth ineffective-assistance-of-counsel claim alleged that
his counsel failed to call Jenny Manuel to testify during the penalty
phase. When Capote was 19 years old, he lived with Manuel and her
family for several months because he was otherwise homeless. According
to Capote, Manuel would have testified that Capote "was essentially a
nanny" for her two young children, that he "cared for [the children's]
41
CR-20-0537
needs," and that the children "came to love him." (C. 17.) Capote alleged
that those facts "would have made a powerful impression" on the jury by
"provid[ing] proof of [his] nurturing side" (id.), and he alleged that,
without Manuel's testimony, the State "succeeded in portraying him as a
remorseless murderer who had a complete lack of respect for the lives of
others." (C. 18.)
Initially, we note that " '[a] trial counsel's choice of whether to call
witnesses is generally accorded a presumption of deliberate trial strategy
and cannot be subject to second-guessing in a claim of ineffective
assistance of counsel.' " Stallworth, 171 So. 3d at 73 (quoting Saylor v.
Commonwealth, 357 S.W.3d 567, 571 (Ky. Ct. App. 2012)). We also note
that Manuel's testimony would have been cumulative of the testimony
provided by Dr. Marianne Rosenzweig, a forensic psychologist who
testified for the defense. Specifically, Dr. Rosenzweig testified that
Capote was "like a nanny" for Manuel's family in that he "would cook
dinners for [them], he cleaned the house, he did laundry, [and] he took
care of her kids"; that he "became like a part of the family"; and that
Manuel's children viewed him as an uncle. (R. 1710.) As this Court has
repeatedly stated: " '[F]ailing to introduce additional mitigation evidence
42
CR-20-0537
that is only cumulative of that already presented does not amount to
ineffective assistance.' " Walker v. State, 194 So. 3d 253, 288 (Ala. Crim.
App. 2015) (quoting Jalowiec v. Bradshaw, 657 F.3d 293, 319 (6th Cir.
2011)). Thus, because Manuel's testimony would have been cumulative
of Dr. Rosenzweig's testimony, summary dismissal of this claim was
proper. See Peraita v. State, [Ms. CR-17-1025, Aug. 6, 2021] ___ So. 3d
___, ___ (Ala. Crim. App. 2021) (holding that summary dismissal was
proper because "the proposed testimony [that counsel allegedly should
have presented] was cumulative to other evidence presented at trial").
We acknowledge Capote's allegation that his counsel should have
called Manuel to testify, despite the cumulative nature of her testimony,
because, according to Capote, "[i]t is well established that lay witnesses
– family and others who know the defendant well – are more effective as
mitigation witnesses than 'experts.' " (C. 18.) However, decisions
regarding " '[w]hich witnesses to call … are clearly trial strategy,' " Clark
v. State, 196 So. 3d 285, 315 (Ala. Crim. App. 2015) (quoting Ortiz v.
State, 866 S.W.2d 312, 315 (Tex. Ct. App. 1993)), and, despite his
contention that he was asserting a well established principle, Capote
cited no authority providing that a layperson is a more effective
43
CR-20-0537
mitigation witness than an expert. Instead, Capote cited the American
Bar Association Guidelines – which are not authoritative, Ray v. State,
80 So. 3d 965, 982 (Ala. Crim. App. 2011) – and, moreover, the specific
guideline he cited does not suggest that a layperson is a more effective
mitigation witness than an expert. (C. 18.) Thus, we are unpersuaded
by Capote's argument that his counsel performed deficiently in choosing
to rely on an expert witness instead of a lay witness who would have
presented the same mitigation testimony.
3.
Capote's seventh ineffective-assistance-of-counsel claim alleged
that his counsel failed to ensure that his stepfather, Conrad Mathias,
testified during the penalty phase. Capote noted in his petition that his
counsel had arranged for Mathias to testify but that Mathias had
ultimately "backed out" because "[s]peaking positively about Capote with
Freeman's family in the courtroom made him uncomfortable; he felt for
their loss." (C. 18-19.) According to Capote, his counsel should have
"press[ed] upon [Mathias] the importance of appearing" but, instead, "did
nothing to overcome [his] reluctance." (C. 19.) As to how Mathias's
testimony could have benefited him, Capote alleged:
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CR-20-0537
"Had Mathias testified, he would have helped humanize
Capote for the jury. He saw Capote as a 'normal kid,'
rambunctious and occasionally in trouble in school, but not a
delinquent. Moreover, he would have discussed Capote's
ADHD and how Ritalin seemed to help him slow down and
focus. Most importantly, he would have offered firsthand
testimony about Capote's mother and her gross failings as a
parent. Their marriage dissolved, he would have testified,
when Capote's mother put using drugs before [her] children
and left drugs out openly in the dwelling."
(C. 19.)
However, Capote conceded in his petition that, "[i]f a witness
declines to testify, a lawyer cannot generally be faulted" (C. 19), and the
United States Supreme Court has held that competent representation
"does not require an attorney to browbeat a reluctant witness into
testifying." Knowles v. Mirzayance, 556 U.S. 111, 125 (2009). Indeed, a
reluctant witness can actually serve as a liability to the defendant,
especially when the witness has expressed sympathy for the victim's
family, as Mathias did. Thus, the decision not to pressure a reluctant
witness into testifying is an objectively reasonable trial strategy. See
Guertin v. State, 243 Ga. App. 322, 323, 533 S.E.2d 159, 161 (2000)
(finding no deficiency in counsel's decision not to call a witness to testify
because counsel had determined that, "as a reluctant witness, any
beneficial testimony that [she] could have provided might have been
45
CR-20-0537
offset with testimony that could hurt [the defendant's] case"); and Parker
v. Bowersox, 94 F.3d 458, 461 (8th Cir. 1996) (holding that counsel's
decision not to call an "extremely reluctant" witness "did not fall outside
the wide range of professionally reasonable performance").
Moreover, according to Capote, Mathias would have testified that
Capote was a "normal kid" who was "not a delinquent," that he had been
diagnosed with attention-deficit/hyperactivity disorder ("ADHD"), and
that Capote's mother had "put using drugs before [her] children and left
drugs out openly in the dwelling." However, Dr. Rosenzweig testified
that the people she interviewed, which included Mathias, had told her
that Capote was a "pleasant child" who "showed respect to adults and …
had no problems … minding them" (R. 1684), that he had been diagnosed
with ADHD, and that his mother "would openly smoke marijuana in front
of the kids," "used [cocaine] in front of the kids," and "was usually high
when she was at home." (R. 1677-78.) Thus, Mathias's testimony would
have been cumulative of Dr. Rosenzweig's testimony, and, as we have
already noted, "[f]ailing to introduce additional mitigation evidence that
is only cumulative of that already presented does not amount to
ineffective assistance." Walker, 194 So. 3d at 288 (citation omitted).
46
CR-20-0537
Based on the foregoing, Capote failed to establish that his counsel
performed deficiently by not coaxing Mathias into testifying. Thus,
summary dismissal of this claim was proper. See Miller, 1 So. 3d at 1078(holding that summary dismissal was proper because the facts the
petitioner pleaded, even if true, did not establish that his counsel had
performed deficiently); and Peraita, ___ So. 3d at ___ (holding that
summary dismissal was proper because "the proposed testimony [that
counsel allegedly should have presented] was cumulative to other
evidence presented at trial").
4.
Capote's eighth ineffective-assistance-of-counsel claim alleged that
his counsel failed to call Jeffrey Walker to testify during the penalty
phase. According to Capote, Walker is a criminal-justice professor who,
if called to testify,
"would have explained that young people who feel
marginalized or rejected – terms that apply squarely to
Capote – turn to gangs for support; that a gang fosters a sense
of belonging and can be a substitute family for a needy youth;
and that gangs provide a way for young persons to gain
respect and self-esteem, qualities that are often sorely
missing from their lives."
47
CR-20-0537
(C. 20.) As to the prejudice he suffered in the absence of Walker's
testimony, Capote alleged that the evidence of his gang affiliation,
"presented without context, caused the jury to take a dim view of [his]
character." (Id.)
We reiterate here that "[a] trial counsel's choice of whether to call
witnesses is generally accorded a presumption of deliberate trial strategy
and cannot be subject to second-guessing in a claim of ineffective
assistance of counsel." Stallworth, 171 So. 3d at 73 (citation omitted).
Furthermore, Dr. Rosenzweig provided testimony regarding Capote's
reasons for joining the Almighty Imperial Gangsters. Specifically, after
testifying to the harrowing events Capote experienced in his mother's
house as a young child, Dr. Rosenzweig testified that Capote's mother
"ended up kicking [him] out … when he was 14" years old and that he
subsequently experienced intermittent periods of homelessness. (R.
1704.) Dr. Rosenzweig then testified as follows:
"Q. Now, … between 14 and, say, 19, at some point [Capote]
became involved in gang activity; is that correct?
"A. That's true.
"Q. First joined the Latin Kings?
"A. That's correct.
48
CR-20-0537
"Q. Tell us about that.
"A. [Capote] was about 16 when he was – what they call it,
he was jumped into the Latin Kings. That meant that
they basically beat him up for a period of time. That's
the right of initiation. [Capote] told me that he had been
homeless at this time, and the Latin Kings had kind of
become like his family. That they kind of looked out for
him, and they took care of him. And he didn't choose to
go into the Latin Kings, but he was pretty sure that he
was going to get initiated into the gang. And, in fact,
that is what happened when he was 16.
"Q. And at some point he got away from them, is that right?
"A. He did. When he was 19, he elected to go into another
gang called the Imperial Gangsters. The reason he did
that is that he said after he was initiated into the Latin
Kings, they basically forgot about him. They stopped
treating him like a family member and just kind of let
him do for himself. And basically, kind of had him out
there kind of making money for them. And – but he
knew some younger kids from his neighborhood that he
kind of hung around with, and they were the Imperial
Gangsters. They – so he changed his gang affiliation
because the Imperial Gangsters really did treat him like
family and kind of look out for him.
"But when he changed his affiliation, gangs of
Chicago are sort of not the same as they are in Alabama.
This is – they are the real thing. And a gang – when you
join a gang, it's … for a lifetime. You can't elect to get
out of a gang. And [Capote] said, but he knew that when
he left the Latin Kings, he was marked to be killed by
them. And that he made the decision though at 19 to
take that risk because he said he was homeless. And
living as a homeless person on the streets of Chicago, he
49
CR-20-0537
thought he would survive longer by joining the Imperial
Gangsters and having somebody to kind of look after
him basically like his own family than he would if he
stayed just as a homeless person on the street."
(R. 1710-13.)
Thus, Dr. Rosenzweig's testimony indicated that Capote had turned
to gangs for the support and sense of family that he had not previously
experienced, which, according to Capote, would have been the purpose of
Walker's testimony. In other words, Walker's testimony would have been
cumulative of Dr. Rosenzweig's testimony, and, once again, "[f]ailing to
introduce additional mitigation evidence that is only cumulative of that
already presented does not amount to ineffective assistance." Walker,
194 So. 3d at 288 (citation omitted). Accordingly, summary dismissal of
this claim was proper. See Peraita, ___ So. 3d at ___ (holding that
summary dismissal was proper because "the proposed testimony [that
counsel allegedly should have presented] was cumulative to other
evidence presented at trial").
We note that Capote also alleged that
"[i]f called as a witness, Walker would have addressed these
issues: Why someone joins a gang? What is expected of gang
members? What is the significance of tattoos for someone in
a gang or in prison? (Capote has noticeable facial tattoos that
50
CR-20-0537
might have alarmed the jurors.) And can someone change for
the better while in prison?"
(C. 20.) However, this part of Capote's claim was nothing more than a
list of issues that Walker allegedly would have addressed without any
indication as to what Walker's testimony would have been. As this Court
has explained, to properly plead a claim that counsel rendered ineffective
assistance by failing to hire an expert witness, the petitioner must " 'set
out the testimony that the named expert would have given.' " Wimbley,
___ So. 3d at ___ (quoting Brooks v. State, 340 So. 3d 410, 437 (Ala. Crim.
App. 2020)). Merely setting forth a list of questions that could have been
presented to an expert witness, without any indication as to how the
witness would have testified in response to the questions, is not sufficient
to satisfy this pleading requirement.
5.
Capote's ninth ineffective-assistance-of-counsel claim alleged that
Dr. Rosenzweig "was not properly prepared for cross-examination, and,
as a result, her testimony did more to harm [him] than to help him." (C.
21.) In support of that claim, Capote alleged the following facts:
"On cross-examination, the prosecutor got Dr.
Rosenzweig to admit that Capote was a 'hellion' in
kindergarten, where he kicked a teacher and attacked other
51
CR-20-0537
students; that 'that [kind of] behavior has continued almost
all of his life'; 'that he has a history of expressly violent
behavior'; 'that if somebody mean mugs [Capote] . . . he [is]
going to strike first'; that Capote was diagnosed with
'antisocial personality disorder'; and that the letter he wrote
to [another gang member] in jail showed no remorse and 'fit
the definition of a person with an anti-social personality
disorder.' In almost all of these instances, the prosecutor
asked a leading question – e.g., Capote was said to have a
'history of expressly violent behavior, right?' – and Dr.
Rosenzweig answered 'Yes' or 'Correct' without explanation or
push back."
(Id. (citations to record omitted).) According to Capote, "the prosecutor
used the testimony elicited from Dr. Rosenzweig on cross-examination to
paint a picture of [him] as person who could not control his anger." (Id.)
However, nowhere in his petition did Capote indicate what he
believed his counsel should have done to better prepare Dr. Rosenzweig
for cross-examination or how any further preparation would have
impacted her testimony. In his brief to this Court, Capote argues that
his counsel "could have anticipated what were obvious cross-examination
questions and worked with Dr. Rosenzweig to give less damaging
answers" (Capote's brief, p. 47), but the facts supporting an ineffective-
assistance-of-counsel claim must be pleaded in the petition itself. See
Bearden v. State, 825 So. 2d 868, 872 (Ala. Crim. App. 2001) ("Although
Bearden attempts to include more specific facts regarding his claims of
52
CR-20-0537
ineffective assistance of counsel in his brief to this Court, those
allegations are not properly before this Court for review because Bearden
did not include them in his original petition before the circuit court.");
and Bryant, 181 So. 3d at 1108 ("We note that Bryant alleges additional,
and more specific, facts in his brief on appeal regarding this claim.
However, these factual allegations were not included in his petition or
amended petition; therefore, they are not properly before this Court for
review and will not be considered."). Thus, Capote failed to plead this
claim with the specificity required by Rule 32.3 and Rule 32.6(b), and
summary dismissal of the claim was therefore proper. Shaw, 148 So. 3d
at 764. See also Donald v. State, 312 Ga. App. 222, 229-30, 718 S.E.2d
81, 87-88 (2011) (affirming the denial of a claim that counsel had failed
to adequately prepare the defendant for cross-examination because the
defendant had made no "proffer showing how further preparation would
have changed [his] testimony" (citation omitted)).
6.
Capote's tenth ineffective-assistance-of-counsel claim alleged that
his counsel "fail[ed] to adequately investigate [his] mental-health issues,"
which, according to Capote, include "anxiety and depression," "PTSD-
53
CR-20-0537
related nightmares," and "mood instability." (C. 22-23.) Although Dr.
Rosenzweig provided testimony to that effect (R. 1721), Capote alleged
that his counsel should have also "engaged a psychiatrist to evaluate
[him]" and that, had counsel done so, "the psychiatrist could have
addressed [his] mental-health issues with medication and treatment."
(C. 22.)
This claim was insufficiently pleaded, however, because Capote did
not identify any psychiatrist his counsel should have "engaged." See
Peraita, ___ So. 3d at ___ (holding that the petitioner's claim that his
counsel "should have hired some other expert witness to assess his
mental health" was insufficiently pleaded because he did not identify the
expert "by name"); and Wimbley, ___ So. 3d at ___ (holding that the
petitioner's claim was insufficiently pleaded because he "did not allege
the name of any mental-health professional his counsel should have
talked to"). Thus, because Capote failed to plead this claim with the
specificity required by Rule 32.3 and Rule 32.6(b), summary dismissal of
the claim was proper.7 Shaw, 148 So. 3d at 764.
7Capote raised an eleventh ineffective-assistance-of-counsel claim
in his petition, alleging that his counsel "fail[ed] to challenge the use of
[his] prior felony as an aggravating circumstance." (C. 23.) We do not
54
CR-20-0537
Conclusion
Capote has not demonstrated that he is entitled to relief from the
circuit court's summary dismissal of his Rule 32 petition. Accordingly,
the judgment of the circuit court is affirmed.
AFFIRMED.
Windom, P.J., and Kellum and Minor, JJ., concur. Cole, J., concurs
in the result.
consider that claim, however, because Capote has not reasserted it on
appeal, and it is thus deemed abandoned. Brownfield, 266 So. 3d at 795
n.8.
55