11th murderer executed in U.S. in 2011
1245th murderer executed in U.S. since 1976
2nd murderer executed in Alabama in 2011
51st murderer executed in Alabama since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(11) |
William Glenn Boyd W / M / 20 - 45 |
Fred Blackmon W / M / 76 Evelyn Blackmon W / F / 41 |
Summary:
Boyd and Robert Milstead broke into the home of Fred and Evelyn Blackmon in Anniston, tying them up and convincing them that the two men had kidnapped Evelyn's daughter. Fred was accompanied at gunpoint to the bank and encouraged to withdraw $5,000. Both were then bound and gagged and driven to a woods area where they were beaten and shot to death. Boyd and Milstead later returned to the scene to dispose of the bodies. Fred's body was discovered in the trunk of his car, submerged into the Coosa River. Evelyn's body was also found in the river inside a matal drum. Her body had been hacked with an axe in an attempt to make her more easily fit in the drum. Both men gave several statements after arrest leading police to the bodies, each pointing to the other identified as the shooter. Accomplice Milstead received a life sentence by plea agreement and testified against Boyd at trial. The jury recommended a sentence of life in prison without parole, but citing the heinous nature of the crime, the trial judge overrode the jury and ordered the death penalty.
Citations:
Boyd v. State, 542 So.2d 1247 (Ala.Cr.App. 1988). (Direct Appeal)
Boyd v. State, 746 So.2d 364 (Ala.Crim.App. 1999). (PCR)
Boyd v. Allen, 592 F.3d 1274 (11th Cir. 2010). (Habeas)
Final/Special Meal:
Chicken, french fries, applesauce, a tomato and an orange drink. Boyd also had a meatball sandwich, a Philly cheese steak sandwich, a V8 Splash drink and coffee from the vending machine.
Final Words:
Declined.
Internet Sources:
Alabama Department of Corrections
DOC#: Z473
Inmate: BOYD, WILLIAM GLEN
Gender: M
Race: W
DOB: 1/6/1966
Prison Holman
Received: 4/9/1987
Charge: MURDER
County: CALHOUN
"William Glen Boyd executed for 1986 murders of Anniston couple," by Kent Faulk. (March 31, 2011, 9:18 PM)
Alabama death row inmate William Glen Boyd, convicted in the 1986 murders of a wealthy Anniston couple, died at 6:23 p.m. by lethal injection this evening at Holman Prison in Atmore. Boyd's execution was carried out at 6 p.m. after he failed to get a stay from the U.S. Supreme Court or clemency from Alabama Gov. Robert Bentley.
As the execution began, Holman Correctional Facility Warden Tony Patterson came into the execution room and read the execution warrant from the Alabama Supreme Court. After that, Patterson asked Boyd if he wanted to make a statement. Boyd weakly answered "no."
A few minutes later, as Boyd was administered a sedative, Chris Summers, the Holman chaplain, came over and said some words to Boyd, then knelt and held Boyd's left hand and appeared to be praying. Boyd's lips were moving as the chaplain prayed. Boyd stared at the florescent lights on the ceiling much of the time, looking over once at the three witnesses -- a lawyer and two ministers -- who were there on his behalf. Nine people, including family of the victims, were in another witness box.
After Boyd closed his eyes, a correctional officer came over to him and said, "Boyd, Boyd," pinched his arm, and brushed his left eye brow to check to make sure Boyd was unconscious before the lethal injection started. The large bald man's breathing slowed and eventually was undetectable.
A group of 14 protesters appeared about a quarter-mile from the prison entrance just before the execution began.
Boyd had been on death row since his 1987 capital murder conviction in the 1986 deaths of a wealthy Anniston couple, Fred Blackmon, 76, and his 41-year-old wife, Evelyn. The Blackmons were kidnapped, robbed, beaten, then shot before their bodies were dumped into the Coosa River. A jury had recommended Boyd receive a sentence of life without parole, but the Calhoun County Circuit Court judge in the case sentenced him to death.
Boyd, 45, had been on Death Row 23 years, 11 months and 22 days. He was the 27th Alabama Death Row inmate to die from lethal injection since 2002, the last time the electric chair was used. He was the 204th person to be executed in Alabama since 1927.
Boyd's attorneys had appealed Wednesday to the U.S. Supreme Court to stop the execution, saying the judge had not followed Alabama Supreme Court and U.S. Supreme Court rules in overriding the jury's recommendation for a life sentence. The attorneys also claimed Boyd had ineffective assistance from his attorneys at the time of his sentencing. The Supreme Court denied that appeal. Boyd's execution is the first one since Bentley took office.
Another man, Robert Denton Milstead, pleaded guilty in the case under an agreement with prosecutors and was sentenced to life without parole.
Boyd was among 203 inmates on Alabama's death row before his execution. Boyd visited with his lawyer, and nine other friends and family today as the time neared for his execution this evening at Holman Prison in Atmore.
Brian Corbett, spokesman for the Alabama Department of Corrections said that since Boyd was moved to the death holding cell near the execution room on Tuesday, he's had 12 visitors. Those include one brother, sister-in-law, two nephews, his sister Cynthia Pierce, brother-in-law, two friends, one spiritual adviser, two other ministers and his attorney Ruth Friedman. All but two of those visitors, Pierce and his brother in-law Charles Pierce, had seen him today, beginning this morning, Corbett said. Visitation was to end at 4:15 p.m. today.
Three people were witnesses for Boyd at tonight's execution, his attorney and two ministers, Corbett said. Boyd requested chicken, French fries, apple sauce, tomatoes and an orange drink for his last meal, Corbett said. Earlier today Boyd ate a meatball sub, a Philly cheese steak sandwich, V-8 Splash and coffee, all from a vending machine in visitation yard, which is indoors, he said.
"Alabama man executed for double murder." (AFP)
WASHINGTON — A man who kidnapped, robbed and killed a couple in 1986 was put to death Thursday in Alabama after the US Supreme Court rejected his last-minute appeal. William Glenn Boyd, 45, was pronounced dead at 6:23 pm (2223 GMT) at a state prison in Atmore, Alabama, 23 minutes after being given a lethal injections, said prisons spokesman Brian Corbett. He made no final statement, Corbett said.
Only 20 years old when he committed the double murder, Boyd was not sentenced to death by the jury that found him guilty but the judge who presided over the trial. His lawyers had filed a last-minute appeal to the US Supreme Court, arguing that the judge violated state and federal law by imposing a death sentence after the jury called for sentencing Boyd to life without the possibility of parole.
With friend Robert Milstead, Boyd lured Fred and Evelyn Blackmon out of their home by making them believe that Evelyn's daughter from a previous marriage had been kidnapped and that the couple had to pay a ransom to get her back. Fred Blackmon was forced to withdraw $5,000 from his bank account, but court documents show the couple was later driven to a rural isolated area, where each was shot to death separately. One of the bodies was found in the trunk of the car in a river and another in a barrel that had also been thrown into the river.
Milstead struck a plea deal in exchange for his testimony inculpating Boyd, and he got a life prison sentence without the possibility of parole.
The lethal injection was administered with several drugs, including the anesthetic thiopental, despite shortages in the United States. But the Alabama Department of Corrections "has a sufficient supply of unexpired, FDA-approved sodium thiopental to carry out the execution of William Glenn Boyd," said Corbett. He said Alabama was seeking other means to address the nationwide shortage of the drug, including considering using a sedative, pentobarbital, currently used to put down animals.
It was the state's second execution this year, and the 11th across the United States.
"Alabama executes man for 1986 double murder," by Peggy Gargis. (Thu Mar 31, 2011 7:56pm EDT)
BIRMINGHAM, Ala (Reuters) - A man who kidnapped, robbed and killed an eastern Alabama couple in 1986 was executed by lethal injection on Thursday.
William Glenn Boyd, 45, was pronounced dead at 6:23 p.m. local time at the Holman Correctional Facility in Atmore, Alabama, just hours after his last-minute request for a delay was denied. Boyd was the second condemned inmate put to death in Alabama this year and the first under new Republican Governor Robert Bentley's watch.
Authorities said Boyd and another man broke into Fred and Evelyn Blackmon's home in Anniston, Alabama, on March 26, 1986. They demanded ransom for Evelyn Blackmon's daughter, whom Boyd had dated and claimed to have abducted. After forcing Fred Blackmon to cash a $5,000 check, the men bound and gagged the couple and drove them into the woods, where they were beaten and shot to death. Police later found Evelyn Blackmon's body in a metal drum that had been dumped into the Coosa River and Fred Blackmon's body in the trunk of his car, also submerged in the river.
The jury in Boyd's case recommended a sentence of life in prison without parole. But citing the heinous nature of the crime, the trial judge overrode the jury and ordered the death penalty. The U.S. Supreme Court on Thursday rejected an appeal from Boyd's attorneys, who argued that the execution should be halted because the trial judge acted improperly. Though judges in Alabama have the authority to override a jury's recommendation, Boyd's attorneys said the judge in this case did not give the jury's recommendation or the neglect and abuse in Boyd's childhood sufficient consideration.
Boyd's last meal consisted of chicken, french fries, applesauce, a tomato and an orange drink, according to Alabama Department of Corrections spokesman Brian Corbett. Boyd also had a meatball sandwich, a Philly cheese steak sandwich, a V8 Splash drink and coffee from the vending machine, Corbett said.
Two pastors and one of Boyd's attorneys attended the execution on his behalf, Corbett said. Asked if he had any last words, Boyd said "no."
Boyd was the 11th inmate executed in the United State so far this year. There were 46 executions in 2010.
"Gov. says he prayed for Boyd before Thursday execution," by Bob Johnson. (AP April 01, 2011 - 8:08 pm)
MONTGOMERY, Ala. — As the hour arrived Thursday for convicted murderer William Glenn Boyd to be put to death, Alabama Gov. Robert Bentley paused and said a short prayer for the condemned man. Not many minutes later, Boyd was given a lethal injection for kidnapping and murdering a Calhoun County couple 25 years ago.
Boyd had filed a last minute plea for clemency with Bentley, a Baptist deacon and physician facing the first execution since he became governor in January. Bentley could have stopped Boyd's execution by granting the clemency petition or making a phone call to the death chamber at Holman Prison in Atmore. Bentley admitted it was a hard decision for a Christian and for a doctor who had devoted much of his life to saving lives. "It's not something I took lightly. I am the governor and I swore to uphold the laws of Alabama," Bentley said. He said the death penalty is one of those laws.
Bentley said he and his staff reviewed Boyd's appeals over the past 25 years. "I did not see anything that would cause me to change the sentence," Bentley said.
He said he decided not to stop the execution because of two things that happened over the past 25 years. One of those, he said, was Boyd's decision in 1986 to kidnap and then kill Fred and Evelyn Blackmon. He said the second was the collective decision of the courts that have repeatedly reviewed the case. "It came down to it that I had to make a tough decision and I had sworn to uphold the law," Bentley said Friday.
There were 25 executions in Alabama during the eight years that Bentley's predecessor in the governor's office, former Gov. Bob Riley, was the state's chief executive.
The brutal facts surrounding the kidnapping, robbery, and murder of Fred and Evelyn Blackmon are these. The Blackmons disappeared from their home in Anniston, Alabama, on March 26, 1986. Between 9:30 and 10:00 a.m. that morning, Fred Blackmon, accompanied by a slender white male with long dark hair, cashed a $5,000 check at the drive-in window of an Anniston branch of the First Alabama Bank, where Fred Blackmon maintained an account.
Soon thereafter, Boyd was arrested on the charge of first degree kidnapping on April 3, 1986. After being advised of his Miranda rights, Boyd signed a waiver-of-rights form and gave a statement to the police concerning the Blackmons’ disappearance. In addition, Anniston Police Officers Robertson and Hall impounded Boyd’s automobile. The same day, the police arrested Robert Milstead, who also gave a statement to the police about the Blackmons.
In the afternoon of April 3, 1986, the police -- accompanied by Milstead -- went to the locations where each of the Blackmons had been separately killed. At the scene of Evelyn Blackmon’s murder, police found a trail through the woods. Officer Watson discovered bleached hair entwined with white fiber. Watson collected soil and debris samples which contained blood-stained leaves and soil. A .25 caliber shell casing was found close to the blood stain. The hair found near the blood stain later was microscopically compared to a hair sample taken from Evelyn Blackmon’s body and determined to be the same.
Fred Blackmon’s 1985 Cadillac Eldorado was recovered from the Coosa River on April 4, 1986. Fred Blackmon was found dead, stuffed into the trunk of the car. The windows were down, the doors were unlocked, the ignition key was in the on position, and the car was in first gear. Upon discovering that the car’s tail light was broken, the officers went to the area in Calhoun County where Milstead said Fred Blackmon had been murdered. At that location, in the middle of a dirt road, the officers found broken pieces of a red plastic tail light lens, a silver plastic Cadillac emblem, two spent .25 caliber shell casings, and a long white fiber.
On April 9, 1986, a metal drum containing Evelyn Blackmon’s body was recovered from the Coosa River too. Evelyn’s mouth had been gagged and a piece of cloth had been tied around her ankles. She had sustained three gunshot wounds: a superficial wound to her head; a wound to the right side of her neck; and a wound to her back. Evelyn also had sustained a laceration to her right forehead, numerous fractures to her nose and face, and an ax wound to her lower back that broke her backbone. The gunshot wounds were determined to be the cause of her death.
At trial, there was conflicting testimony regarding whether Boyd had murdered Fred Blackmon, Evelyn Blackmon, or both victims. Anniston Police investigator Gary Carroll testified that Boyd insisted in his first statement to the police that his accomplice, Milstead, had killed both victims. Specifically, Boyd told the police that on the morning of March 26, 1986, he and Milstead, both armed, gained entry into the Blackmons’ home. Boyd and Milstead had previously discussed robbing the Blackmons. Boyd admitted that he accompanied Fred Blackmon to the bank, where Fred withdrew $5,000 and turned it over to Boyd, and returned to the Blackmons’ house. Boyd and Milstead then forced the Blackmons into Fred Blackmon’s Cadillac Eldorado and drove to an area in Ohatchee, Alabama, near the river. After the car was parked, Milstead, according to Boyd, physically assaulted Evelyn Blackmon, and then shot her. Fred Blackmon tried to barter for his life, but Boyd hit him on the back of the head, and then Milstead shot him too. Boyd and Milstead left the crime scene in the Cadillac Eldorado, only to return later that night. They stuffed Fred Blackmon’s body in the trunk of the Cadillac Eldorado and rolled the car down a boat ramp into the river. They left and returned to the crime scene still again the next morning, stuffed Evelyn Blackmon’s body into a 55-gallon barrel and rolled the barrel into the river. They later disposed of the two guns used during the crime by throwing them into a creek. On April 4, 1986, Boyd gave a second statement to the police that provided a detailed description of how to find the locations of the crime scenes. Boyd provided a third statement on April 6, 1986, claiming that he had remained in the car with Fred while Milstead took Evelyn into the woods. Boyd said that Milstead was just supposed to leave her there, but decided to kill her instead.
Boyd accompanied police to a creek on April 11, 1986, to show them where the guns had been discarded after the murders. A nickel-plated Raven Arms Company .25 caliber automatic pistol and a black .22 caliber pistol were recovered. There was one unfired round in the .25 caliber pistol, and five rounds still in the .22 pistol.
Milstead’s statements and testimony, on the other hand, said that Boyd had killed both victims. Milstead pleaded guilty to capital murder and testified for the State against Boyd, in exchange for a sentence of life without parole.
Prior to testifying, he had given five statements to the police, which varied in certain respects, but four of them consistently accused Boyd of shooting both victims as well as assaulting them. Milstead testified that on the morning of the crime, Milstead, who did not know the Blackmons, gained entry into the Blackmons’ house along with Boyd; they were both armed with loaded pistols. Boyd then gagged and blindfolded Evelyn Blackmon, and threatened the Blackmons that Evelyn’s daughter, Julie, had been taken hostage and would be killed if the Blackmons did not pay a ransom. Boyd forced Fred to go to the bank to withdraw money, leaving Evelyn alone at the house with Milstead. After Fred withdrew $5,000 and gave the money to Boyd, they returned to the home. Boyd and Milstead then forced Fred and Evelyn at gunpoint into Fred ’s Cadillac Eldorado, and drove them to a secluded area by the river. At that point, they separated the Blackmons, first forcing Evelyn to walk away from the car to a clearing behind a brush pile. Boyd then re-gagged and blindfolded Evelyn, and, after talking to her, struck Evelyn across her forehead and nose with a stick. Evelyn screamed, whereupon Boyd tried to strangle her with a cloth. Boyd then shot Evelyn with a .22 caliber pistol, which he had muffled with the cloth. After she continued to fight for her life, Boyd took the .25 caliber gun from Milstead, who was standing with them, and shot her still again in the back and in the head.
Boyd and Milstead returned to the car and drove Fred to another location. After exiting the car, Boyd hit Fred’s head with a stick. This blow also broke the taillight on Fred’s Cadillac. Boyd then took a piece of cloth and started choking Fred with it. When Fred struggled for his life and stabbed Boyd with a stick, Boyd took out the .25 caliber pistol and put it to Fred’s throat. Fred begged Boyd not to shoot him, offering to give him $50,000. Boyd told Fred that it was too late, and shot him in the chest and neck with the .25 caliber pistol. Boyd and Milstead left the scene in Fred’s car. They returned later that night to the location of Fred’s murder, stuffed his body into the trunk of his car, and rolled it into the Coosa River. After a few minutes, the car sank. They threw the two pistols into a creek that night. The next morning, Boyd and Milstead returned to the crime scene, finding Evelyn’s body. By Milstead’s account, Boyd said the body was too stiff, so he took Milstead’s ax and tried to cut Evelyn’s body in half. Boyd then took the body and broke Evelyn’s back, and along with Milstead threw her body into a metal barrel along with some cement blocks and rocks. Boyd cut some holes in the barrel with the ax. He and Milstead rolled the barrel into the river. The barrel sank in the water.
Kenny Surrett, who had grown up with Boyd, also testified for the State, providing another conflicting account indicating that Boyd had confided that he had shot Fred Blackmon, but not Evelyn Blackmon. Surrett said that on the night of March 25, 1986, the evening before the Blackmons were kidnapped and murdered, he was with both Boyd and Milstead. Surrett saw, among other things, a chrome or silver .25 caliber automatic pistol in Boyd’s possession. On the night of March 27, 1986, the day after the Blackmons disappeared, Surrett drove to Boyd’s house to collect on a bad check Boyd had given him. Soon after Surrett arrived, Boyd said, “Kenny, I didn’t realize how coldblooded I was.” Boyd then said he had something to tell Surrett. Boyd admitted that he and Milstead had gone to the Blackmons’ house to rob them, and Boyd had taken Fred Blackmon to the bank where Fred withdrew some money. Milstead and Boyd then took the Blackmons to the river. Boyd said he hit Fred on the back of his head with a stick and then shot him. Boyd also told Surrett that Milstead hit Evelyn in the nose and shot her a couple of times. Boyd confessed that he chopped Evelyn’s back with an ax in order to be able to dispose of her body in a barrel. Boyd paid Surrett with money that, Boyd said, he had obtained from Fred Blackmon. A week later, Boyd joked with Surrett about the Blackmons being “at the bottom of the river.”
The following individuals have been executed by the State of Alabama at the Holman Correctional Facility near Atmore since 1983:
Inmate Date Method Victim
1 John Louis Evans 22 April 1983 electrocution Edward Nassar.
Boyd v. State, 542 So.2d 1247 (Ala.Cr.App. 1988). (Direct Appeal)
Defendant was convicted in the Circuit Court, Calhoun County, Harold G. Quattlebaum, J., of four counts of kidnapping/murder and four counts of robbery/murder, and he appealed. The Court of Criminal Appeals, Tyson, J., held that: (1) warrantless inventory search of properly impounded automobile did not violate defendant's Fourth Amendment rights; (2) venue for prosecution was proper in county where robberies and kidnappings occurred, even though murders occurred in another county; and (3) imposition of death sentence was not disproportionate, even though defendant was only 20 years old at time of offenses, in light of especially heinous, atrocious, or cruel character of murders. Affirmed.
TYSON, Judge.
William Glen Boyd was charged in an eight-count indictment with the capital murders of Fred and Evelyn Blackmon. Four counts of the indictment charged the appellant with murder during the course of a kidnapping, and the other four counts charged him with murder during the course of a robbery. The jury found the appellant guilty on each count of the indictment. At the sentence phase of the trial, the jury recommended that the appellant be sentenced to life without parole by a seven to five vote. The trial judge rejected the jury's recommendation and sentenced the appellant to death.
Julie Greenwood, Evelyn Blackmon's daughter, testified that on March 26, 1986, she was living with her mother and her mother's husband, Fred Blackmon, at 401 Fairway Drive in Anniston. When Julie Greenwood left for school that particular morning, both Mr. and Mrs. Blackmon were at home.
After school that day, Julie went to a friend's house and then to the appellant's house to get some tapes. Julie had dated the appellant for a couple of years until the two broke up in February of 1986.
Julie went home at 9:30 p.m. When she arrived home, neither Mr. nor Mrs. Blackmon was home. Mr. Blackmon's black Cadillac Eldorado was not at the house either. Julie went to bed soon after she got home.
The next morning, Fred and Evelyn Blackmon still had not returned home. Julie became worried and told her father, Wayne Greenwood. The next afternoon, Julie and her father filed a missing person's report with the Anniston, Alabama, Police Department.
In October of 1986 Julie went to see the appellant in the jail. He told her that he had a letter which would explain everything. However, the appellant never gave her a letter. He told her that she would be surprised to learn who was involved in the murders but he would not give her any names.
Julie went to see the appellant a second time in the jail. He told her that a gang was involved in the murders and they had threatened that, if he did not do what they said, the gang would kill Julie and Evelyn Blackmon.
Julie testified that two telephones were missing from the Blackmon house on March 26, 1986. She stated that the phones were tapped because someone had been calling Mr. Blackmon and saying things about Mrs. Blackmon. Julie testified that the appellant knew this and that he had been in the Blackmon house on numerous occasions in the past.
Officer Ken Murphy of the Anniston Police Department testified that he was patrolling Fairway Heights at approximately 8:40 on the morning of March 26, 1986. At this time, Murphy noticed a 1976 white, two-door, Chevrolet Camaro illegally parked near the intersection of Sunset and Fairway Drives. The tag number of this vehicle was Alabama 11K-9970. This car was parked approximately one-quarter of a mile away from the Blackmon house.
Linda Jenkins, the operations officer at the Quintard branch of First Alabama Bank in Anniston, testified that she knew Fred Blackmon and saw him several times a week. She stated that on the morning of March 26, 1986, Mr. Blackmon drove up to the drive-in window. A slender, white male with long dark hair was with Mr. Blackmon in the car. Mr. Blackmon presented a check in the amount of $5,000. When Jenkins saw Mr. Blackmon, she spoke to him but he did not reply. Then Jenkins said, “Fred, this is Linda. How are you doing?” (R. 387.) He just looked at her and nodded.
Jenkins approved the check and Mr. Blackmon received $5,000 in $100 bills. Jenkins stated that Mr. Blackmon's behavior was not normal that day.
Ellen Bass was the teller at the drive-in window that morning. Her testimony was substantially the same as Jenkins' testimony.
Alvin Gibbs, the commissioner of licenses for Calhoun County, testified that a 1985 black Cadillac Eldorado, tag number 11P-2864, was registered to Fred Blackmon. He also testified that a 1976 white Chevrolet Camaro, tag number 11K-9970, was registered to this appellant.
Eugene Hunt Scheuerman testified that he was a medical examiner with the Department of Forensic Sciences in March of 1986. He stated that he was present when a black Cadillac Eldorado, tag number 11P-, was pulled from the Coosa River. The body of Fred Blackmon was removed from the trunk of this vehicle. Fred Blackmon was identified by the use of dental records.
Scheuerman performed the autopsy on Fred Blackmon's body. Mr. Blackmon's clothing was soiled, muddy, and wet when it was removed from the trunk of the vehicle. There was a strip of white cloth on Mr. Blackmon's body which was used as a gag. Three holes were present on Mr. Blackmon's shirt. Two gunshot wounds were found on Mr. Blackmon's body. One of the gunshots penetrated the neck and passed into the chest cavity. The other gunshot penetrated the left side of the chest and passed through the heart. Both of these projectiles were recovered. The weapon which caused these gunshot wounds was fired at close range.
Scheuerman also found minor blunt force injury to Mr. Blackmon's head. However, he determined Mr. Blackmon's cause of death to be the gunshot wounds to the chest and neck.
Dr. Joseph Embry, a forensic pathologist with the Department of Forensic Sciences, testified that he was present when a 55-gallon barrel was pulled from the Coosa River. The body of Evelyn Blackmon was found inside the barrel. She was identified through the use of head x-rays. Cinder blocks and bricks were also found in this barrel.
Embry performed the autopsy on Mrs. Blackmon's body. There was a gag in Mrs. Blackmon's mouth and a piece of cloth tied around her ankles. Mrs. Blackmon sustained three gunshot wounds. One of the wounds was to the head and it was a superficial wound. Another one of the wounds was to the right side of the neck. The other wound was to the back. None of the projectiles which caused these wounds was found in Mrs. Blackmon's body.
Mrs. Blackmon also sustained a laceration of her right forehead. She had numerous fractures to her nose and face. Mrs. Blackmon also had a chop wound in her lower back which penetrated her backbone. Mrs. Blackmon's cause of death was due to the two gunshot wounds to her neck and back.
Charles Hall, an officer with the Anniston Police Department, testified that he arrested the appellant for kidnapping in the first degree on April 3, 1986 at 3:25 p.m. at 701 Mulberry Street in Anniston. The appellant was arrested in front of his house as he arrived home in his Camaro. Hall drove the appellant's car to the city impound lot and secured it. He gave the key to the car to Sergeant Robertson.
Gary Carroll, an investigator with the Anniston Police Department, testified that the appellant made a statement to him on April 3, 1986 at 5:00 p.m. Before this statement was made, the appellant was advised of his Miranda rights and he signed a waiver of those rights. No threats, promises, hopes of reward, or other inducements were made to obtain the appellant's statement.
The following is a summary of the appellant's statement.
On the morning of March 26, 1986, the appellant and Robert Milstead went to the home of Fred and Evelyn Blackmon. The two had discussed getting money from the Blackmons. The appellant parked his 1976 white Camaro several blocks away from the Blackmons' house. Milstead went in the Blackmons' house first and held a gun on the Blackmons while the appellant came in the house. Both Milstead and the appellant had guns. One was a .25 caliber and the other was a .22 caliber gun. Mr. Blackmon agreed to get Milstead and this appellant money from his bank. Mr. Blackmon wrote out a check and the appellant accompanied him to the bank. A check in the amount of $5,000 was cashed at the bank and Mr. Blackmon gave the money to the appellant and they returned to Blackmon's house.
Once they got back to the house, the appellant and Mr. Blackmon, along with Milstead and Mrs. Blackmon, left the house in Mr. Blackmon's Cadillac Eldorado. Before leaving the house, the appellant took phones from the kitchen and upper bedroom because he knew the phones had been tapped.
Milstead drove the car and Mr. Blackmon sat in the front seat with Milstead. Mrs. Blackmon sat in the back seat with the appellant. They drove to Ohatchee and went down a dirt road to a spot on the river. The appellant said that they planned to tie the Blackmons up and leave them and he and Milstead were going to leave the state. Milstead took Mrs. Blackmon into the woods. When the appellant heard Mrs. Blackmon scream, he went into the woods. The appellant stated that Milstead hit Mrs. Blackmon from behind with a log and then he shot her. They left Mrs. Blackmon tied up there.
The two decided to knock Mr. Blackmon out and leave him. The appellant hit Mr. Blackmon on the head with a stick. Milstead then said they had to kill him and Milstead shot Mr. Blackmon. Mr. Blackmon's body was then put in the trunk of his car.
Milstead and the appellant then drove Mr. Blackmon's car to a grocery store parking lot and left it there until after dark. The two went back and picked up the car and drove it back to the river. They then drove the car off a boat ramp into the river.
The next morning, Milstead purchased some 55-gallon barrels. The appellant and Milstead then went back to the place where they left Mrs. Blackmon. They put Mrs. Blackmon's body into one of the barrels along with rocks to weigh it down. They then rolled the barrel into the river.
The appellant stated that he and Milstead split the money in half. He said that the guns he and Milstead had were thrown in a creek in Ohatchee.
On April 4, 1986, Watson went to a cement boat ramp located about 3/4 of a mile from the first scene. A 1985, two-door Cadillac Eldorado, Alabama tag number 11P-2864, was recovered from the river at this site. The windows were down and the doors were unlocked. A single key was in the ignition and the ignition was in the on position. The car was in first gear. The lights and radio were off. The right rear taillight was broken and there was damage to the front fender.
The scene where Mr. Blackmon was killed was also found that day. The scene was a dirt road. At this scene, several pieces of a taillight lens were found as was a silver Cadillac emblem. Two spent .25 caliber hulls were found here. A long white fiber was also located here. This evidence was collected.
On April 7, 1986, Watson obtained the key to the appellant's car and inventoried the contents of the vehicle. The vehicle was located in the police department's fenced and locked impound area. The windows were up and the doors were locked. Watson photographed the car and then conducted an inventory of the vehicle in compliance with the policies of the Anniston Police Department. Watson followed the standard inventory procedures for impounded vehicles.
Inside the car, Watson found a piece of white and yellow entwined cloth on the front floorboard of the car. One end of the cloth was knotted and there was hair entwined in the knot. A black mesh shirt, a pair of blue underwear, a black jacket, and another piece of cloth were also found in the right front floorboard.
Watson also found a roll of gauze in the console of the car along with a yellow gold necklace inside an envelope. The necklace was identified as belonging to Mrs. Blackmon. Two spent .22 caliber hulls were found on the dashboard.
On April 9, 1986, Watson went to a site on the Coosa River where a barrel had been recovered. This site was close to the initial crime scene, where Mrs. Blackmon's body was found.
On April 11, 1986, the appellant told the police where the guns that were used on March 26, 1986, had been thrown. A nickel plated Raven Arm Company .25 caliber automatic pistol and a black .22 caliber pistol were found at this location. Only one round was in the .25 and there were five live rounds in the .22 pistol.
Richard Townsley, an officer with the Anniston Police Department, went to the Wood's Body Shop on April 5, 1986. Mr. Blackmon's car was taken there and impounded after it was pulled from the river. Townsley compared the pieces of a taillight found on the dirt road to the missing portion of the taillight on Mr. Blackmon's car. The pieces matched.
That same day, Townsley went to Milstead's house at 515 Dixie Avenue in Anniston. A blue metal barrel and an ax were found in the backyard.
Larry Huys, a serologist with the Department of Forensic Sciences, testified that the soil samples given to him from the place where Mrs. Blackmon was killed contained type A blood. Stains on the articles of clothing found in the appellant's car tested positive for blood.
David Higgins, a firearms and toolmarks examiner for the Department of Forensic Sciences, testified that the two bullets found in Mr. Blackmon's body and the three expended cartridges found at the murder scenes were fired from the .25 caliber pistol found in the creek. Higgins could not check for toolmarks comparison between the ax found in Milstead's backyard and the barrel removed from the river because the barrel was rusty.
John Case, a criminalist with the Department of Forensic Sciences, testified that he examined numerous pieces of evidence collected in this case. He stated that the hair samples collected at the scene where Mrs. Blackmon was killed matched the known scalp hair of Mrs. Blackmon. The hair found in the appellant's car had some similarities to Mrs. Blackmon's hair. The cloth found on the floorboard of the appellant's car was the same fabric as the ligatures from the ankles and head of Mrs. Blackmon and the gag on Mr. Blackmon. Case also testified that some blue smears found on the ax from Milstead's back yard were consistent with scrapings of the barrel which was recovered from the river.
Kenny Surrett testified that he is a friend of the appellant and grew up with him. He stated that he was with the appellant and Milstead the night before the murders took place. Surrett saw a silver .25 caliber gun and a .32 caliber gun in the appellant's car.
On March 27, 1986, Surrett went by the appellant's house to talk to him about some money the appellant owed him. When Surrett arrived, the appellant came out of the bathroom and said he could not believe how cold-blooded he was.
Then the appellant said he had something to tell Surrett. He said he and Milstead went to the Blackmons' house on the morning in question. The appellant took Mr. Blackmon to the bank and Mr. Blackmon got some money. Milstead and the appellant then took the Blackmons to the river. The appellant said Milstead hit Mrs. Blackmon in the nose and then shot her a couple of times. Later, the two broke Mrs. Blackmon's back and put her in a barrel which they pushed into the river.
The appellant said he hit Mr. Blackmon with a stick and then shot him. They put Mr. Blackmon's body into the trunk of his car and drove it into the river.
After the appellant finished talking, Surrett noticed some money on a table. The appellant said he got the money from Mr. Blackmon and paid Surrett the money he owed him.
The next week, the appellant called Surrett and asked him if he had heard the news about the Blackmons being missing. The appellant asked Surrett if he believed his story now. Surrett told the appellant that he did not want to hear it, and it was not something to joke about.
The next day, Surrett was with the appellant at the barber shop. The appellant made a joke that the Blackmons might be at the bottom of the river. The following day, Surrett told the appellant that he had told somebody about what the appellant told him. The appellant was mad.
Robert Denton Milstead testified that he pleaded guilty to four counts of capital murder in connection with the Blackmons' deaths. He received a life sentence in exchange for his testimony at this trial.
On March 24, 1986, the appellant told Milstead that he was going to blackmail Mrs. Blackmon with names of the men she had slept with while she was married to Mr. Blackmon. He said he was then going to sell the names to Mr. Blackmon. He did not mention anything about kidnapping the Blackmons. Milstead did not know the Blackmons.
On the morning of March 26, 1986, the appellant and Milstead drove by the Blackmons' house and then parked the appellant's car several blocks away. The appellant gave Milstead a .25 caliber gun and told him to go to the Blackmons' house and hold them until he came in the house. The appellant said the Blackmons would not let him in if he went to the door.
Milstead put the gun in his pants and knocked on the Blackmons' door. Mr. Blackmon came to the door with his pajamas on and let Milstead in. Milstead said he was a friend of Julie Greenwood and he had to talk to Mrs. Blackmon about her daughter's safety. Milstead then went downstairs to see Mrs. Blackmon. He told her that the appellant was on a “rampage” and he was scared the appellant would hurt her daughter. Milstead and Mrs. Blackmon then went upstairs and the appellant came in the house.
The appellant then put a .22 revolver to Mrs. Blackmon's head. Mrs. Blackmon told her husband to call the police. The appellant said it would not be a wise thing to do and told the Blackmons to sit down. He told Milstead to hold the gun on them and he then went into the kitchen and ripped a pillow case into pieces. The appellant then tied up Mrs. Blackmon and gagged and blindfolded her.
The appellant went back to the kitchen and pretended to dial a number on the phone. He said, “We're in here and everything is going ok. If I call you back and let the phone ring once, kill Julie and get out.” (R. 713.) The appellant then told Mr. Blackmon that Julie was a hostage and he wanted $75,000. Mr. Blackmon said he did not have that much money that he could get to because his money was tied up in stocks. The appellant then agreed to take $5,000. The appellant went upstairs with Mr. Blackmon while he changed his clothes, then the appellant and Mr. Blackmon went to the bank. Milstead stayed with Mrs. Blackmon. The appellant and Mr. Blackmon returned from the bank with $5,000 in $100 bills. The appellant later gave Milstead half of this money.
The appellant told Milstead that they were going to take the Blackmons to a secluded spot, tie them up and leave them so he and the appellant could get out of the state.
The four then left in Mr. Blackmon's Eldorado. Before they left the house, the appellant took $1,500 from Mr. Blackmon's wallet and one of Mrs. Blackmon's gold necklaces which the appellant later left in his car. The appellant also took some phones because he knew they were tapped.
Milstead drove the car and Mr. Blackmon sat beside him in the front seat. The appellant and Mrs. Blackmon sat in the back seat. Milstead drove across the Coosa River to Ohatchee (in St. Clair County) and drove down a dirt road. At some point, the appellant, Milstead, and Mrs. Blackmon got out of the car and walked to a clearing behind a brush pile. The appellant then told Mrs. Blackmon to sit down. He tied her hands and feet, gagged and blindfolded her. After talking to Mrs. Blackmon, the appellant hit her on the nose with a stick and then hit her on the forehead. Mrs. Blackmon screamed and the appellant tried to choke her with a cloth. The appellant then took the .22 gun, muffled it with the cloth and shot Mrs. Blackmon. The shot did not kill her so the appellant took the .25 gun from Milstead and shot Mrs. Blackmon in the back and head. They covered Mrs. Blackmon's body up and left.
Milstead and the appellant then took Mr. Blackmon back across the river (into Calhoun County) and parked on a dirt road. The appellant told Mr. Blackmon to get out of the car. The appellant hit Mr. Blackmon on the head with a stick. This hit broke the taillight on Mr. Blackmon's car. Then the appellant took a piece of cloth and started choking Mr. Blackmon. Mr. Blackmon struggled and stabbed the appellant with a stick. The appellant took out the .25 gun and put it to Mr. Blackmon's throat. Mr. Blackmon begged the appellant not to shoot him and said he could get $50,000 for him. The appellant told Mr. Blackmon it was too late and shot him in the chest and neck. Milstead and the appellant then put Mr. Blackmon's body in the trunk. Milstead and the appellant then drove Mr. Blackmon's car to the Piggly Wiggly grocery store lot and parked it there. They went to Milstead's father's house and washed up and changed clothes. Later that night, Milstead and the appellant went back and picked up Mr. Blackmon's car and drove it to a boat ramp on the Coosa River. The appellant rolled the windows of the car down and rolled the car down the ramp into the river. After a few minutes, the car sank. They threw the two pistols in a creek that night.
The next morning, Milstead and the appellant went back to the place where they left Mrs. Blackmon's body. They were going to put her body in a barrel that Milstead bought the previous afternoon. The appellant said the body was too stiff and he took Milstead's ax and tried to cut Mrs. Blackmon's body in half. He then took the body and broke Mrs. Blackmon's back. The two then put her body into the barrel with some cement blocks and rocks. The appellant cut some holes in the barrel with the ax. Milstead and the appellant then rolled the barrel into the river and it sank.
The appellant told Milstead to tell the police a story about the mafia if he was questioned concerning the Blackmons' deaths. He said that Milstead would wind up like Mrs. Blackmon if he said anything to the police about him.
Milstead testified that he had a conversation with Sharon Johnson on the day the murders occurred. Milstead told Johnson that he and the appellant kidnapped the Blackmons and that the appellant killed them.
Sharon Johnson testified for the defense. She said that she had a conversation with Milstead on March 26, 1986. Milstead told her that he shot Mrs. Blackmon and the appellant shot Mr. Blackmon. She said she saw the appellant that day with $3,000 in cash. She and the appellant were dating at the time.
I
On the afternoon of April 3, 1986, the appellant was arrested for kidnapping in the first degree as he drove up to and parked his automobile in front of his house at 701 Mulberry Street in Anniston, Alabama. The police took the appellant into custody and impounded his vehicle. The vehicle was taken to the Anniston Police Department's impound area. This area was fenced and locked. The vehicle's windows were up and the doors were locked.
On the morning of April 7, 1986, Officers Watson and Bradley conducted an inventory search of the appellant's vehicle according to the standardized procedures of the Anniston Police Department. All of the contents of the vehicle were inventoried. During the course of the inventory, Watson and Bradley seized certain items which circumstantially linked this appellant to the Blackmons' deaths.
At trial, the appellant objected to the admission of these items of evidence on the ground that they were illegally seized during a warrantless search of his vehicle. He contends on appeal that this search was unreasonable and in violation of the Fourth Amendment to the United States Constitution.
In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court recognized an inventory search exception to the warrant requirement of the Fourth Amendment. Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); Ringer v. State, 489 So.2d 646 (Ala.Cr.App.), cert. denied 489 So.2d 646 (Ala.1986); Lippold v. State, 365 So.2d 1015 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1022 (Ala.1979).
In Opperman, the United States Supreme Court ruled that inventories of lawfully impounded vehicles which are conducted pursuant to standard police procedures are reasonable under the Fourth Amendment.
Here, both officers testified that the inventory search of the appellant's vehicle was conducted according to standard procedures of the Anniston Police Department. The fact that the inventory was conducted some four days after the vehicle's impoundment does not necessarily render the inventory search unreasonable. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) (the Supreme Court upheld an inventory search which was carried out one week after the defendant's arrest and the vehicle's impoundment). During the four days between the appellant's vehicle's impoundment and the inventory of its contents, the Anniston Police Department was locating the various sites at which the events of this case took place. Officer Watson was involved in the collection of evidence found at these sites. Certainly, the discovery and preservation of evidence, found where each of the killings took place, were more important at the time than the inventory of the contents of the appellant's vehicle, which was properly secured. Under these circumstances, we cannot say that the inventory search of the appellant's vehicle four days after its impoundment was unreasonable.
The appellant also claims that the inventory search of the appellant's vehicle was a subterfuge for obtaining evidence in this case. Officer Bradley testified that police are always aware that they may find incriminating evidence when conducting an inventory search. However, “... the mere expectation of uncovering evidence will not vitiate an otherwise valid inventory search. United States v. Prescott, supra, 599 F.2d [103] at 106.” Ringer, 489 So.2d at 649 (quoting United States v. Bosby, 675 F.2d 1174, 1179 (11th Cir.1982).
In Bertine, the Supreme Court upheld an inventory search of the defendant's vehicle where “there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation.” Bertine, 107 S.Ct. at 742. The court concluded that “reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment....” Bertine, 107 S.Ct. at 742.
On the afternoon of March 28, 1986, some two days after Mr. and Mrs. Blackmon disappeared, Julie Greenwood and her father, Mr. Greenwood, filed a missing persons report with the Anniston Police Department. In the case at bar, there was no showing that the officers acted in bad faith or conducted the inventory for investigative purposes. The police had probable cause to believe that the appellant's vehicle had been used in the commission of the crimes. This probable cause was supplied by the accomplice, Milstead, who had given the police a detailed statement several hours before the appellant was arrested as he drove up in front of his home. See State v. Stott, 395 So.2d 714 (La.1981). Thus, we conclude that the inventory search of the appellant's vehicle was reasonable and not in violation of the United States Fourth Amendment. (Authorities herein cited.)
II
The evidence adduced at the appellant's trial showed that Mrs. Blackmon's death and murder occurred in St. Clair County, Alabama. The appellant argues on appeal that he should have been tried in St. Clair rather than Calhoun County for Mrs. Blackmon's murder since the killing took place in that county.
Section 15-2-2, Code of Alabama (1975) states that: “ Unless otherwise provided by law, the venue of all public offenses is in the county in which the offense was committed.” (Emphasis added.)
Section 15-2-6, Code of Alabama, provides that: “When an offense is committed partly in one county and partly in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, venue is in either county.”
In Ex parte Williams, 383 So.2d 564 (Ala.1980), cert. denied, Williams v. Alabama, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980), the Alabama Supreme Court examined the language of § 15-2-6, Code of Alabama (1975). In that case, the court stated:
“Obviously, the phrase, ‘or requisite to the consummation of the offense’ means requisite to the completion of the offense-to the achievement of the unlawful purpose-to the ends of the unlawful enterprise. By the use of the word ‘consummation’ the legislature drew a distinction between an act or an effect thereof which is essential to the commission of an offense, and an act or effect thereof which, although unessential to the commission of the offense, is requisite to the completion of the offense-that is, to the achievement of the unlawful purpose of the person committing the offense.”
Williams, 383 So.2d at 566 (quoting People v. Megladdery, 40 Cal.App.2d 748, 106 P.2d 84 (1940).
The appellant was charged with two counts of kidnapping/murder and two counts of robbery/murder involving the death of Mrs. Blackmon. In Ex parte Baldwin, 456 So.2d 129 (Ala.1984), the Alabama Supreme Court, interpreting the 1975 capital murder statute stated:
“The crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating with the act of intentionally killing the victim. The offense consists of two elements, robbing and intentionally killing, but does not consist of two separate offenses. See Ex parte Clements, 370 So.2d 723 (Ala.1979); Horsley v. State, [374 So.2d 363] (Ala.Crim.App.1978).”
Baldwin, 456 So.2d at 133.
Although the language in the present 1981 capital murder statute defining robbery/murder differs somewhat from the earlier statute, the offense of robbery/murder is still a single offense consisting of two elements. The capital offense of robbery/murder cannot be consummated unless there is a 1) murder committed by the defendant, 2) during the course of a robbery in the first degree or an attempt thereof. The capital offense of kidnapping/murder likewise is a single offense consisting of two elements-1) a murder committed by the defendant, 2) during the course of a kidnapping in the first degree or an attempt thereof.
As was stated earlier, the appellant was charged with two counts of kidnapping/murder (counts I & III) with regard to Mrs. Blackmon's death.
Section 13A-6-43(a), Code of Alabama (1975) provides that:
“A person commits the crime of kidnapping in the first degree if he abducts another person with intent to
(1) hold him for ransom or reward; or
(2) use him as a shield or hostage; or
(3) accomplish or aid the commission of any felony or flight therefrom; or
(4) inflict physical injury upon him, or to violate him sexually; or
(5) terrorize him or a third person; or
(6) interfere with the performance of any governmental or political function.”
Count I of the indictment charged the appellant with the murder of Mrs. Blackmon during an abduction of her with the intent to inflict physical injury upon her. Count III of the indictment charged the appellant with the murder of Mrs. Blackmon during an abduction of her with the intent to terrorize her.
The definition of “abduct” as it relates to § 13A-6-43, Code of Alabama (1975) is as follows:
“To restrain a person with intent to prevent his liberation by either:
a. Secreting or holding him in a place where he is not likely to be found, or
b. Using or threatening to use deadly physical force.”
Ala.Code, § 13A-6-40(2) (1975).
“Restrain” is defined as follows:
“To intentionally or knowingly restrict a person's movements unlawfully and without consent, so as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved. Restraint is ‘without consent’ if it is accomplished by:
a. Physical force, intimidation or deception....”
Ala.Code, § 13A-6-40(1) (1975).
Applying the above definitions to the case at bar, there is ample evidence that the offense of kidnapping (the abduction of Mrs. Blackmon by the appellant with the intent to 1) inflict physical injury upon her, and 2) terrorize her) occurred in Calhoun County, Alabama. The abduction of Mrs. Blackmon was a requisite to the completion of the capital offense of kidnapping/murder. Thus, venue was properly in Calhoun County, Alabama, with regard to counts I and III of the indictment (kidnapping/murder).
The appellant was also charged with two counts of robbery/murder in counts V and VII of the indictment.
“A person commits the crime of robbery in the first degree if he violates § 13A-8-43, and he
(1) Is armed with a deadly weapon or dangerous instrument; or
(2) Causes serious physical injury to another.”
Ala.Code, § 13A-8-41(a) (1975).
Section 13A-8-43(a), Code of Alabama (1975) provides:
“A person commits the crime of robbery in the third degree if in the course of committing a theft he:
(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance, or
(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”
In count V of the indictment, the appellant was charged with the murder of Mrs. Blackmon during the course of a robbery (of the Cadillac and $5,000) while armed with a deadly weapon. Obviously, the robbery element, as alleged in count V was completed in Calhoun County, Alabama, when the appellant and Milstead obtained unauthorized control of the $5,000 and the Cadillac automobile while armed with deadly weapons.
Count VII of the indictment charged the appellant with the murder of Mrs. Blackmon during the course of a robbery, and during said robbery, he caused serious physical injury or death to her. Although there was no evidence that the appellant caused Mrs. Blackmon serious physical injury or death in Calhoun County, venue is still proper in Calhoun County with regard to count VII of the indictment. The theft of the Cadillac and the $5,000 by the threat or use of force against Mrs. Blackmon by the appellant, was an act requisite to the completion of the offense of robbery/murder. Although the robbery element as contained in count VII was consummated in St. Clair County, it began in Calhoun County.
From our examination of § 15-2-6, Code of Alabama (1975), and the Alabama Supreme Court's interpretation in Williams, of the language used in this statute, we conclude that venue, for the kidnapping/murder and robbery/murder charges against this appellant for the death of Mrs. Blackmon, was properly in Calhoun County, Alabama.
III
During the course of the jury's deliberations during the guilt phase of trial, the following occurred:
“THE COURT: Let the record reflect the jury is outside the courtroom. Counsel for the defendant and the state are present.
“I have received a note from the jury which reads: ‘Could we have a distinction between murder and capital murder?’ I have responded: ‘Murder and capital murder have already been defined to you. You should use your own recollection of those definitions to determine any distinction.’
“What says the state?
“MR. FIELD: Satisfied, Your Honor.
“THE COURT: What says the defendant?
“MR. PARIS: Satisfied, Your Honor.
“THE COURT: I'll send the note back up.” (R. 961.)
The appellant asserts in his brief that a proper objection was made to the trial court's refusal to give additional instructions on murder and capital murder. The only evidence concerning this matter which is contained in the record before us is the above-quoted portion of the record, a motion to correct or modify the record filed with the trial court and an order by the trial court denying this motion. The order of the trial court, dated July 10, 1987, states that a hearing was held on the appellant's motion. The order further states that the trial judge, after hearing testimony from both sides and reviewing the court reporter's notes and tapes of the trial, found that “any objections made by the Defense Counsel to the Court's response to the question submitted by the Jury to the Court were not preserved for the record.” Thus, the evidence before this court is that the appellant failed to object to the court's refusal to give additional instructions to the jury, and, therefore, counsel had not preserved this issue for our review.
The appellant has attached to his brief a motion to extend the record on appeal (appellant's brief, p. 39-40), and copies of affidavits made by the appellant's attorneys (appellant's brief, p. 43-45). In the affidavits made by counsel, Brian Stephen Levinson, he states:
“On March 20, 1987, in the midst of appellant's trial, I was present and objected to the trial judge's failure to recharge the jury as to capital murder and murder, after the jury asked for a distinction of the two, and I also objected to the trial judge's failure to inquire of the jury what the basis of their inquiry was. I informed the judge of my intent to object thereto, on the record, I then did object thereto, although the Court Reporter did not note my objection for the record.” (Appellant's brief, p. 43.)
In the affidavit made by counsel, Grant A. Paris, he states:
“In Volume 5, at Page R961, of said transcript, it indicates that I was present and answered, ‘Satisfied, Your Honor,’ when in fact I was not present in the Courtroom at that time and never so answered.” (Appellant's brief, p. 45.)
This court cannot consider the appellant's motion to extend the record on appeal and the accompanying affidavits as part of the record merely because they are attached to the appellant's brief. See Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971); Dunaway v. State, 50 Ala.App. 198, 278 So.2d 198, cert. denied, 291 Ala. 777, 278 So.2d 200 (1973); Anderson v. State, 455 So.2d 957 (Ala.Cr.App.), cert. denied, 455 So.2d 957 (Ala.1984).
The appellant has failed to make a proper motion to supplement the record under Rule 10(f), A.R.A.P. Thus, the validity of the affidavits attached to the appellant's brief cannot be considered on appeal. Turner v. State, 380 So.2d 393 (Ala.Cr.App.1980); Callens v. State, 471 So.2d 482 (Ala.Cr.App.1984), cert. denied, 471 So.2d 482 (Ala.1985); Edwards, supra.
In Vaughn v. Britton, 740 F.2d 833 (11th Cir.1984), cert. denied, 469 U.S. 1163, 105 S.Ct. 920, 83 L.Ed.2d 932 (1985), defense counsel stated in the defendant's brief to this court that he had objected to the trial court's Allen charge to the jury, but that his objection was not noted in the record. The Eleventh Circuit held that this was insufficient, under Alabama law, to comply with the duty to file a correct record on appeal and that this procedural default precluded review of the merits of the issue.
When a defendant fails to file a proper 10(f) A.R.A.P. motion and the record demonstrates the trial proceedings are regular on its face, this court can only conclude that the record on appeal is correct. Hollins v. State, 415 So.2d 1249 (Ala.Cr.App.1982).
Thus, this issue has not been preserved for our review.
Furthermore, we do not find the trial judge's refusal to give additional instructions to the jury on murder and capital murder to be error, since the trial judge thoroughly instructed the jury on these matters in his oral charge to them. There is no basis of error to reversal shown here.
IV
Section 13A-5-53, Code of Alabama (1981), requires this court to review the propriety of the appellant's death sentence and to examine the record for any errors affecting this conviction.
This court has reviewed the entire record in this cause as required by § 13A-5-53(a), Code of Alabama (1975), and we have found no error adversely affecting the rights of this appellant. Beck v. State, 396 So.2d 645 (Ala.1980). See also rule 45A, A.R.A.P.
The trial court found the existence of two aggravating circumstances: “The capital offense was committed while this defendant was engaged in the commission of, or flight after committing or attempting to commit Robbery and Kidnapping,” (§ 13A-5-49(4)), and, that, “The Capital offenses were especially heinous, atrocious or cruel when compared to other capital offenses.” (§ 13A-5-49(8).) (P.C. 200.)
The first aggravating circumstance is fully supported by the record, supra. Further, we are convinced that these capital offenses were especially heinous, atrocious, and cruel. Hubbard v. State, 500 So.2d 1204 (Ala.Cr.App.1986), affirmed, 500 So.2d 1231 (Ala.1986), cert. denied, Hubbard v. Alabama, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780 (1987). The appellant planned to obtain some money from these victims and went to their home to carry out his plan. He told the victims that Mrs. Blackmon's daughter was being held hostage and obtained $5,000 from the Blackmons based on this story. He then kidnapped both victims and gagged and bound them. He took Mrs. Blackmon to a secluded spot and hit her with such force that same broke her nose. Then the appellant shot her three times and left her. He returned the next day, mutilated her body and then put her in a “weighted barrel” and pushed it in the Coosa River. Mr. Blackmon was shot and killed after he begged for his life and offered the appellant $50,000 to spare his life. His body was placed in his automobile's trunk and driven into the Coosa River. These facts certainly sustain and support the trial judge's finding of the second aggravating circumstance. See Thompson v. State, 503 So.2d 871 (Ala.Cr.App.1986), affirmed, 503 So.2d 887 (Ala.1986), cert. denied, Thompson v. Alabama, 484 U.S. 872, 108 S.Ct. 204, 98 L.Ed.2d 155 (1987).
The trial judge found one statutory mitigating circumstance. “The defendant was twenty (20) years of age at the time of the commission of the crime charged.” (§ 13A-5-51(7).) (P.C. 202). See Neelley v. State, 494 So.2d 669 (Ala.Cr.App.1985), aff'd, 494 So.2d 697 (Ala.1986), cert. denied, Neelley v. Alabama, 480 U.S. 926, 107 S.Ct. 1389, 94 L.Ed.2d 702 (1987) (wherein this court found that the same two aggravating circumstances present here outweighed the one statutory mitigating circumstance of age (18 at the time of the offense), and several non-statutory mitigating circumstances).
The trial court also considered the fact that the appellant “to some degree assisted the law enforcement officers in locating the bodies of the two victims and the weapons used in the crime,” and evidence concerning the appellant's background and character as mitigating circumstances. The trial judge's finding regarding the mitigating circumstances is also supported by the record.
We find no evidence in this record that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. Hubbard, supra; Thompson, supra. Our independent weighing of the aggravating and mitigating circumstances convinces us that death was the proper sentence to be imposed in this case. Further, the sentence of death here is not disproportionate to the penalty imposed in similar cases, considering the crime and this appellant. See Beck v. State, 396 So.2d 645, 654, n. 5 (Ala.1980) (the great majority of death sentences are for robbery (murder); Neelley (kidnapping/murder) (and cases cited therein). Furthermore, the fact that the appellant's accomplice received a life without parole sentence does not render this appellant's sentence disproportionate. See Neelley and Ex parte Womack, 435 So.2d 766 (Ala.1983,), cert. denied, Womack v. Alabama, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983) (wherein accomplices had not even been prosecuted for the offense).
We have carefully searched this record for plain error and have found none. Therefore, the appellant's judgment of conviction and sentence of death is proper. The same is due to be, and is hereby, affirmed. FN* The trial judge's findings and sentencing order are set out in an appendix to this opinion.
AFFIRMED. All the Judges concur.
APPENDIX
{A) GUILTY PHAZE B)AGGRAVATING CIRCUM. PHAZE}
FINDINGS OF FACT BY THE COURT FROM THE EVIDENCE AND TESTIMONY
PRESENTED DURING THE GUILT PHASE OF THE TRIAL
After consideration of the evidence and testimony presented before the Court during the guilt phase of the trial in this cause, the Court finds as follows:
On March 26, 1986, Evelyn Holmes Caine Blackmon and Fred Leonard Blackmon resided as husband and wife at 401 Fairway Drive, Anniston, Alabama, Calhoun County. Julie Greenwood, Mrs. Blackmon's daughter by a previous marriage, also lived with them. Julie last saw her mother and Fred Blackmon alive on the morning of March 26, 1986, at their home prior to her (Julie) going to school.
On that same morning William Glen Boyd (a former boyfriend of Julie's) and Robert Denton Milstead drove to a place near the home of Evelyn and Fred Blackmon. They were in Boyd's white 76' Camaro automobile. Boyd told Milstead to go to the house and tell Evelyn that he (Boyd) had arranged for Julie to be kidnaped, that he was on a rampage, that he wanted to talk to her, and that when she let him in, he (Milstead) was to leave the back door unlocked so he (Boyd) could slip in. After Milstead got inside the home, Boyd did slip in the back door, armed with a pistol. After some conversation and threats, Boyd tied up Evelyn and told Milstead, who was also armed, to watch her. Boyd then forced Fred to go with him.
Later that morning, at 9:15 a. m., Linda Jenkins, an operations officer at 1st Alabama Bank of Anniston approved and cashed a $5000.00 check for Fred Blackmon at a drive in window at the bank. She testified that a white, slender male with long, dark hair was in the car with Mr. Blackmon. In a short while Boyd and Fred Blackmon returned to the house. Boyd had a large amount of money and took $1500.00 from Fred's billfold. Boyd also took a necklace of Evelyn's and ripped two phones from the wall. Boyd and Milstead then forced Evelyn and Fred to leave with them in a 1985 Cadillac belonging to Fred. The auto was an Eldorado Barritz with VIN# 1G6EL578FE667616 Alabama License tag number 11-p-2864.
The Court further finds, from the evidence and testimony, that Boyd and Milstead took the victims in Fred's car to an area on the west side of the Coosa River where Boyd took Evelyn into a thicket where he gagged her, and while she was bound and gagged, he attempted to knock her out by hitting her in the face and on the head with a large limb. Having failed to knock her out - even though her face was crushed - he pulled out a pistol and shot her in the neck and head. She continued to struggle and Boyd shot her again in the back.
The third shot killed her and Boyd threw some limbs on her and left.
Boyd and Milstead then drove Fred Blackmon back across the river into Calhoun County to another remote area and Boyd took Fred into the woods while Milstead remained near the car a short distance away. Boyd tried to knock out Fred by hitting him in the head with a long stick. When he failed to knock him out he told Milstead, “Get me the gun out of the back seat”, whereupon Milstead obliged and while Fred was begging Boyd not to kill him, Boyd said he “had to”, and shot Fred Blackmon in the neck causing him to fall and roll toward the water. Boyd drug Fred to the back of the Cadillac and when he saw he was still alive, he shot him in the chest area again. Boyd and Milstead then put Fred's body into the trunk of the Cadillac, drove back to near the Fairway residence of the Blackmons and retrieved Boyd's car. Later they took the Cadillac - with Fred's body still in the trunk - back to the Ohatchee area and left it in a grocery store parking lot until that evening. That afternoon Milstead purchased two blue 55 gallon drums with a locking top at a salvage store in Bynum, Alabama. Later that night Boyd and Milstead took the Cadillac back to a boat ramp area on the west side of the river and Boyd let the car windows down, put the car in gear, turned off the lights, and ran it out into the river approximately 30 feet from shore where it sank below the surface. Boyd then wanted to dispose of Evelyn's body that night, but Milstead was too scared to go into the woods.
They threw the guns used to kill the Blackmons into a creek off a bridge. They were later recovered and identified.
The next morning Boyd and Milstead returned to where Evelyn's body had been left. Boyd kicked Evelyn and seeing that she was stiff, got an axe from the truck and attempted to chop her body at the lower back area so that it would go in one of the drums. Having failed to chop her in two, Boyd then pulled her legs backward toward her head until her backbone broke. Boyd said (according to Milstead, and the Court so finds) “he had to make her fit into the drum someway”. They then put her mutilated body in the blue drum, piled in some rocks to weight it down, sealed the top, and Boyd chopped holes in the drum to let in water; then they threw the drum into the river a short distance (approximately 12 feet) from the shoreline of the river.
Lt. Carroll of the Anniston Police Department testified he talked with Boyd on two (2) oocasions: April 3, 1986, and April 11, 1986. The Court finds that the Defendant, William Glen Boyd, while not represented by an attorney, freely, voluntarily and having full knowledge and understanding of his rights, waived his rights to silence and to an attorney and admitted to Lt. Carroll that he and Robert Denton Milstead robbed, abducted the victims (Fred and Evelyn Blackmon) and that he was present when both victims were tied up, gagged, beaten and killed.
The Court further finds that the police, in their investigation, recovered from the crime scenes two (2) spent shells of the same caliber as the murder weapons, some hair identified by John Case, a criminalist, as being the same as Evelyn Blackmon's, broken red glass later matched to Fred's Cadillac, some pieces of cloth and string that were the same kind of cloth as the clothes on Evelyn's body when it was recovered, hair from the trunk of the Cadillac was identified as Fred's. These items of evidence tended to connect the Defendant to the crimes.
Dr. Embry, toxicologist, testified that the cause of death of Evelyn Blackmon was multiple gun shot wounds.
Dr. Schurman, toxicologist, testified that the cause of death of Fred Blackmon was gun shots to the chest and neck.
Kenny Surrett testified, and the Court so finds, that Boyd called him to come to his house because he wanted to tell him something. When Surrett got to Boyd's house, he saw a lot of money on a table. Boyd told him that he got it from Fred Blackmon, and that he (Boyd) did not realize how cold-blooded he was. He admitted killing Fred and said that Milstead killed Evelyn; however, the Jury convicted Boyd of killing both victims and the Court so finds.
The Court having considered all the testimony and all the evidence, both for the State and the Defendant, William Glen Boyd, finds that William Glen Boyd, actively participated in the robbery and kidnaping of Fred and Evelyn Blackmon, and that during, or in the course of said robbery and kidnaping, that the Blackmons were shot, beaten and killed, (hair and fiber evidence, together with a necklace identified as Evelyn's found in the Defendant Boyd's car, a white Camaro, at the time of his arrest support this.)
The Court further finds that the Defendant, Boyd, attempted to hide, and ultimately destroy the bodies of the deceased, together with the vehicle of Fred Blackmon and the guns (pistols) used to kill the victims.
FINDINGS CONCERNING THE EXISTENCE OR NON EXISTENCE
OF AGGRAVATING CIRCUMSTANCES
In accordance with mandate of Sections 13A-5-45 and 13A-5-47 Code of Alabama, 1975 (as amended), the Court makes the following findings in regard to the aggravating circumstances set out by Section 13A-5-49 Code of Alabama, 1975 (as amended). The Court finds as follows:
(1) That the Capital offense was not committed by a person under sentence of imprisonment.
(2) That the Defendant had not been previously convicted of another Capital felony, and had not been previously convicted of a felony involving the use of threat of violence to another person.
(3) The acts allegedly committed by the Defendant in the instant case were not ones that created a great risk of death to many persons.
(4) The Capital offense was committed while the Defendant was engaged in the commission of, or flight after committing or attempting to commit Robbery and Kidnaping.
(5) The Capital offense was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(6) The Capital offense was not committed for pecuniary gain.
(7) The Capital offense was not committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(8) The Capital offenses were especially henious, atrocious, or cruel when compared to other Capital offenses. The Court reaches the conclusion that this aggravating circumstance exists based upon the interpretation of the aggravating circumstances as made by the Alabama Court of Criminal Appeals and the Supreme Court of Alabama in defining heinous, atrocious or cruel, and evidence of the following:
(a) That Defendant invaded the privacy of the victims, threatened to kill their daughter (and step-daughter), robbed them, kidnaped them at gun point from their home, bound and gagged them, took them to a remote area and abused both of them while they were fighting and begging for their lives.
(b) The Defendant inflicted severe pain and suffering upon both victims by hitting them on the head and in the face with a large limb while they were tied up and blindfolded.
(c) The Defendant shot each victim two or three times after physically abusing them.
(d) The Defendant used an ax to cut Evelyn Blackmon so that her body would go into a 55 gallon drum.
(e) The Defendant bragged about the killings and about how cold blooded he was.
By any standard acceptable to a civilized society, these crimes were extremely wicked and shockingly evil. They were purpetrated with a design to inflict a high degree of pain with utter indifference to the suffering of the victims. The Court recognizes that all Capital offenses are heinous, atrocious and cruel to some extent, but the degree of heinousness and cruelty in these offenses far exceeds that which is common to all Capital offenses. No other aggravating circumstances are found by the Court to exist in this case. The Court makes the following findings under Sections 13A-5-50 and 13A-5-51 Code of Alabama, 1975 (as amended) in regard to mitigating circumstances. The Court finds that:
(1) The Defendant has a significant history of prior criminal activity, as shown by the pre-sentence report introduced into evidence with no objection from the Defendant.
(2) The Defendant was not under the influence of extreme mental or emotional disturbances during the commission of the Capital offenses charged in this case.
(3) The victim was not a participant in the Defendant's conduct.
(4) The Defendant was not merely an accomplice in the Capital offenses committed by another person, further the Defendant's participation was not relatively minor.
(5) The Defendant did not act under extreme duress or under the substantial domination of another person.
(6) The Defendant did have the capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law.
(7) The Defendant was twenty (20) years of age at the time of the commission of the crime charged.
The Court further finds that the Defendant, William Glen Boyd, to some degree assisted the law enforcement officers in locating the bodies of the victims and the weapons used in the crime. The Court has considered this as a non-statutory mitigating circumstance.
In addition to the above, the Court has considered the evidence and testimony presented to the jury and to the Court in regard to the Defendant's background and character as the same pertains to the mitigating circumstances that should be properly considered by the Court.
The Court finds that the jury in this case was not emotionally influenced with passion, prejudice or other arbitrary factors in arriving at its findings of guilty as to the Capital offenses. As to the recommendation of punishment of life without parole, the Defendant, his sister and his mother made highly emotional pleas against the death penalty, the State presented no testimony in the sentence recommendation hearing. The Court further finds that if the jury was emotionally influenced with passion as a result of this testimony, it was all in favor of the Defendant as was evident from the jury's advisory verdict of life without parole.
After due consideration of all the matters that were presented to the Court during this hearing, both in mitigation and aggravation, the Court has carefully weighed the aggravating and mitigating circumstances which it finds to exist in this case, and has given consideration to the recommendation of the jury contained in its advisory verdict, and has taken into consideration all other matters that are properly before the Court, including the pre-sentence report and the arguments of the State and the Defendant. While the mitigating circumstances and the jury's recommendation of life without parole have weighed heavy in the Court's consideration, this Court does now find, and is convinced beyond a reasonable doubt and to a moral certainty that the aggravating circumstances of this horrible, cold blooded crime as shown and brought before the Court far outweigh the mitigating circumstances shown to the Court, and that said aggravating circumstances outweigh the said mitigating circumstances in all regards and that they are sufficient in both quantity and quality to more than uphold a sentence of DEATH in this case
ORDER OF THE COURT ON IMPOSITION OF SENTENCE
The Defendant in the above-styled case, William Glen Boyd, was charged by Indictment returned by the Grand Jury of Calhoun County, Alabama, during its April, 1986, session, with eight (8) counts of Capital Murder as codified in Section 13-5-40, Code of Alabama, 1975 (as amended). More specifically, the Defendant, William Glen Boyd, was charged with the following Capital Offenses:
Two counts of Murder during a Kidnaping in the First Degree of Evelyn Blackmon;
Two counts of Murder during a Kidnaping in the First degree of Fred Blackmon;
Two counts of Murder of Evelyn Blackmon during a Robbery in the First Degree;
Two counts of Murder of Fred Blackmon during a Robbery in the First Degree.
This case came on to be heard before the Court and a Jury of five women and seven men (and two alternate Jurors who were discharged according to law) duly impaneled and sworn as required by law; whereupon the principal jurors after hearing the evidence, the Court's charge as to the applicable law, including the lesser included offenses of Murder, Kidnaping in the First Degree, Robbery in the First Degree and upon consideration of the law and the evidence, found the Defendant guilty of the Capital Offenses of Murder by the Defendant of Evelyn Blackmon during a Kidnaping in the First Degree or attempt thereof as charged in Counts I and III of the Indictment, guilty of the Capital Offense of Murder by the Defendant of Fred Blackmon during a Kidnaping in the First Degree or attempt thereof as charged in Counts II and IV of the Indictment, guilty of the Capital Offense of Murder by the Defendant of Evelyn Blackmon during a Robbery in the First Degree as charged in Counts V and VII of the Indictment, and guilty of the Capital Offenses of Murder by the Defendant of Fred Blackmon during a Robbery in the First Degree as charged in Counts VI and VIII of the Indictment. The Jury, upon request of the Defendant, was polled as to its Verdict and the Verdict was determined to be unanimous.
The Court announced the Jury Verdict on March 20, 1987, and the Court then, in accord with the Jury Verdict adjudged the Defendant, William Glen Boyd, guilty of eight (8) counts of Capital Murder as charged in Counts I, II, III, IV, V, VI, VII, VIII of the Indictment.
The Court commenced a punishment phase hearing before the same Jury as required by Section 13A-5-46, Code of Alabama, 1975 (as amended). After hearing evidence during the punishment phase the Jury was again charged as to the applicable law advising said jury if the mitigating circumstances outweighed the aggravating circumstances proven by the State beyond a reasonable doubt, then punishment would be life imprisonment without eligibility for parole, but if the aggravating circumstances proven by the State beyond a reasonable doubt outweighed the mitigating circumstances as shown by the Court's charge, then the verdict should be death. The jury was further charged that they must avoid any influence from passion, prejudice or sympathy to enter into their verdict one way or the other. Both the State and the Defendant's attorneys advised the Court they were satisfied with the Court's charge to the jury.
After due deliberation, the Jury returned a Verdict fixing the Defendant's punishment at life without parole. The body of the Verdict stated that the vote was five votes in favor of Death and seven for life without parole in accordance with Section 13A-5-46(f), Code of Alabama, 1975 (as amended).
After the jury verdict was returned and read in open court, the Court set a formal hearing for April 9, 1987, at 9:00 a. m. At said hearing the Defendant, his attorneys, Grant Paris, Stephen Levinson, and Mannon Bankson were present. Robert Field was present for the State.
The Court has ordered and received a written pre-sentence investigation report and has conducted an additional sentence hearing pursuant to Section 13A-5-47, Code of Alabama, (Recomp. 1975). At the sentence hearing, the State, through its District Attorney offered the pre-sentence report into evidence, and the Court considered same, and urged that the Court fix the Defendant's punishment at death. The Defendant, through his counsel, argued that the Court should fix his punishment, in accordance with the jury's recommendation, at life in prison without parole.
ACCORDINGLY, IT IS ORDERED ADJUDGED, AND DECREED that the Defendant, William Glen Boyd, shall be punished by death by electrocution.
Boyd v. State, 746 So.2d 364 (Ala.Crim.App. 1999). (PCR)
After convictions for capital murder were affirmed on appeal, 542 So.2d 1276, petition was filed for postconviction relief. The Circuit Court, Calhoun County, No. CC-86-454.60, R. Joel Laird, Jr., J., denied petition. Petitioner appealed. The Court of Criminal Appeals, Cobb, J., held that: (1) neither trial nor appellate counsel were ineffective; (2) many claims were procedurally barred; and (3) petitioner failed to sufficiently plead some of his claims. Affirmed. On Application for Rehearing
COBB, Judge.
The unpublished memorandum of December 18, 1998, is withdrawn and the following opinion is substituted therefor.
On March 20, 1987, the appellant, William Glenn Boyd, was convicted for intentionally murdering Evelyn Blackmon and Fred Blackmon during the course of a robbery and kidnapping. By a vote of 7-5, the jury recommended that Boyd be sentenced to life in prison without the possibility of parole. On April 9, 1987, the trial court sentenced Boyd to death by electrocution. He appealed. This court affirmed Boyd's conviction and sentence. Boyd v. State, 542 So.2d 1247 (Ala.Cr.App.1988).FN1 The Alabama Supreme Court affirmed the conviction and death sentence on February 24, 1989, Ex parte Boyd, 542 So.2d 1276 (Ala.1989), and on April 7, 1989, that Court denied rehearing. The United States Supreme Court denied Boyd's petition for certiorari review on October 2, 1989. Boyd v. Alabama, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989).
FN1. A complete rendition of the facts appears in Boyd v. State, 542 So.2d 1247 (Ala.Cr.App.1988). However, a reprint of those facts can been found in note 9 of this opinion.
On July 5, 1990, Boyd, through counsel, filed a Rule 20, Ala.R.Crim.P.Temp., (now Rule 32, Ala.R.Crim.P.),FN2 petition for postconviction relief, which he amended on November 30, 1990, and July 8, 1994. Among the claims made in the petition are substantive claims alleging errors in his trial and claims that his trial counsel and appellate counsel were ineffective. The State filed a response, arguing that all the issues, except those claiming ineffective assistance of counsel, were procedurally precluded. (Vol.1, C.R.52.) FN3 On September 12, 1990, the circuit court summarily dismissed Boyd's petition by notation on the case action summary sheet. (Vol.1, C.R.2.) On October 15, 1990, Boyd petitioned for reconsideration of the dismissal of the petition. On October 16, 1990, the trial court reinstated the petition. Prior to Boyd's Rule 32 hearing, the circuit court summarily dismissed all of Boyd's grounds for relief, except those claims alleging ineffective assistance of trial counsel and appellate counsel, finding the dismissed claims to be precluded by Rule 32.2(a), and subject to summary dismissal pursuant to Rule 32.7(d) Ala.R.Crim.P. (Vol. 3, C.R. 498; Vol. 16, R. 100.) Beginning on September 8, 1994, and continuing on October 6, 1994, October 7, 1994, and October 12, 1994, the circuit court conducted an evidentiary hearing at which the parties submitted oral testimony, exhibits, and depositions. At the end of the hearing, the circuit court instructed the parties to submit post-hearing briefs and proposed orders at a designated time after their receipt of the hearing transcript. However, the transcript was not timely prepared so the parties submitted their post-hearing briefs in September 1996, without the aid of a record. On July 25, 1997, the trial court denied the petition by written order, finding as follows:
FN2. Hereafter, the Rule 20, Ala.R.Crim.P.Temp., petition will be referred to as the Rule 32 petition.
FN3. The record in this case includes the original twenty volume clerk's record (C.R.) and hearing transcript (R.), filed on November 20, 1997. Two supplemental records were filed. A three volume supplemental record was filed on January 9, 1998, and a six volume supplemental record filed March 5, 1998. Citations to the original record are designated by the volume (Vol.) number and the page number to either the clerk's record or the hearing transcript. Citations to the supplemental records are designated by the date, volume number, and page number. Citations to the record on direct appeal are designated as such.
“This matter comes before the Court on the Petitioner's Petition as amended pursuant to Rule 20 (Temporary) Rules of Criminal Procedure (now Rule 32, Alabama Rules of Criminal Procedure ). This Court has previously dismissed all claims asserted by the Petitioner except the Petitioner's claims of ineffective assistance of counsel. The Court has heard and considered extensive testimony concerning the issues of ineffective assistance of counsel in this case, has given the parties an opportunity to present written arguments and caselaw and has reviewed the file and transcript of the original trial in this case.
“The Petitioner raises thirty (30) separate claims of ineffective assistance of counsel, both at the trial level and appellate level. Upon consideration of all of the above as it concerns and applies to each separate claim, this Court finds that the Petitioner has failed to show that his counsel's representation, both at the trial level and appellate level, fell below the objective standard of reasonableness or that there was a reasonable probability that but for counsel's unprofessional errors, if any, the outcome of his case would have been different, as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
“It is therefore, 0RDERED, ADJUDGED, AND DECREED that the Petitioner's request for relief pursuant to Rule 20 (now Rule 32) of the Alabama Rules of Criminal Procedure is hereby DENIED.”
(Vol.5, C.R.944-45.)
Boyd appealed.
Boyd raises numerous issues on appeal, including substantive claims alleging errors in his trial and claims that his trial counsel and appellate counsel were ineffective. He also contends that the trial court erred in summarily dismissing claims that were properly presented in his Rule 32 petition.
In reviewing the trial court's denial of the appellant's petition, we are guided by the following principles.
“ ‘ “ ‘[T]he plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence.’ Thompson v. State, 615 So.2d 129 (Ala.Cr.App.1992).” Cade v. State, 629 So.2d 38, 41 (Ala.Cr.App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994).
“ ‘In addition, “[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.” State v. Tarver, 629 So.2d 14, 19 (Ala.Cr.App.1993).’ ”
Davis v. State, 720 So.2d 1006, 1012-13 (Ala.Cr.App.1998) (quoting Brownlee v. State, 666 So.2d 91, 93 (Ala.Cr.App.1995)).
I.
Boyd contends that the trial court erred in not finding that he was denied the effective assistance of his counsel in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the Constitution and laws of the State of Alabama. “In cases in which, as here, trial counsel also served as appellate counsel, claims of ineffective assistance of counsel are cognizable in a Rule 32, Ala.R.Crim. P., petition.” Grayson v. State, 675 So.2d 516 (Ala.Cr.App.1995).
“ ‘To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
“ ‘ “The appellant must show that his counsel's performance was unreasonable, considering all of the attendant circumstances.... ‘[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.’ Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.”
“ ‘ Duren v. State, 590 So.2d 360, 362 (Ala.Cr.App.1990), aff'd, 590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992).
“ ‘When this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App.1985). The burden is on the appellant to show that his counsel's conduct was deficient. Luke.’
“ ‘ “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 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. at 2065-66. (Citations omitted.) Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).
“ ‘Initially we must determine whether counsel's performance was deficient. We must evaluate whether the action or inaction of counsel of which the petitioner complains was a strategic choice. “Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengeable....” Lawley, 512 So.2d at 1372. 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. Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991).’
“ Hallford v. State, 629 So.2d 6, 8-9 (Ala.Cr.App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994).
“ ‘In determining whether a defendant has established his burden of showing that his counsel was ineffective, we are not required to address both considerations of the Strickland v. Washington test if the defendant makes an insufficient showing on one of the prongs. Id. [466 U.S.] at 697, [104 S.Ct. 2052]. In fact, the Court explained that “if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. ...’
“ Thomas v. State, 511 So.2d 248, 255 (Ala.Cr.App.1987).
“Furthermore, to render effective assistance, an attorney is not required to raise every conceivable constitutional claim available at trial and on appeal. Holladay v. State, 629 So.2d 673 (Ala.Cr.App.1992), cert. denied, 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994); McCoy v. Lynaugh, 874 F.2d 954, 965-66 (5th Cir.1989). Rather, counsel must be given some discretion in determining which claims possibly have merit, and thus a better chance of success, and which claims do not have merit, and thus have little chance of success. Heath v. State, 536 So.2d 142 (Ala.Cr.App.1988); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Engle v. Isaac, 456 U.S. 1001, 102 S.Ct. 2286, 73 L.Ed.2d 1296 (1982).”
Davis v. State, 720 So.2d 1006 (Ala.Cr.App.1998).
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
I.A.
The Roman numerals used in section headings in this opinion correspond to the Roman numerals in Boyd's brief to this Court. The issue or issues we treat in Part I.A. of this opinion are raised in Part I.A. of Boyd's brief. In some parts of this opinion we have treated two or more issues, and in those parts we use both section numbers as a heading, e.g. “I.B. and V.”
Boyd contends that trial counsel failed to investigate his background, to conduct in-depth interviews with family members, or to otherwise develop mitigating evidence during the sentencing phase of the trial. According to Boyd, no investigation was conducted, no strategy devised, and virtually no inquiry made into his background and character in an effort to secure a sentence of life imprisonment without parole. Boyd claims that “[h]ad counsel made such efforts, they would have discovered a wealth of mitigating evidence.” (Appellant's brief at p. 3.) Instead, according to Boyd, “[c]ounsel's sole effort was to ask Mr. Boyd's sister [Mrs. Cindy Pierce] to write down some facts about her brother.... Mrs. Pierce was then asked to read this statement to the jury.” (Appellant's brief at pp. 2-3.) The record on direct appeal reflects that, in addition to Mrs. Pierce, the following witnesses testified during the sentencing phase: Geraldine Oliver, Boyd's mother; Herbert Hicks, Boyd's pastor; and Boyd.
“The principles regarding an attorney's duty to conduct an investigation into mitigating evidence have been summarized as follows:
“ ‘An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence. Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986). First, it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end. Funchess v. Wainwright, 772 F.2d 683, 689-90 (11th Cir.1985). If, however, the failure to present the mitigating evidence was an oversight, and not a tactical decision, then a harmlessness review must be made to determine if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Thus, it must be determined that defendant suffered actual prejudice due to the ineffectiveness of his trial counsel before relief will be granted.’
“ Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.1988).”
Daniels v. State, 650 So.2d 544, 569 (Ala.Cr.App.1994).
Boyd claims that his trial counsel failed to present sufficient mitigating evidence to dissuade the trial court from overriding the jury's recommendation. At the Rule 32 hearing, Boyd presented a wealth of testimony characterizing his childhood as consisting of continual gross poverty; gross physical and emotional abuse; gross neglect; and various humiliations. These indignities were bestowed at the hands of a cruel and alcoholic father and stepfather; a mentally disturbed mother; and loving but severely alcoholic grandparents.
In addition to testimony from family and friends confirming Boyd's terrible childhood, Boyd's mitigation argument relies heavily on what experts would have said during the penalty phase of the trial had they been called as witnesses. FN5
FN5. This characterization of his horrible childhood was presented at the Rule 32 hearing by the following witnesses, whom Boyd asserts trial counsel should have called as witness at the sentencing phase of his trial: Jan Vogelsang, a licensed social worker and psychotherapist; Cindy Pierce, his sister (she also testified at sentencing phase); Bill Whatley, a retired Anniston police officer who had investigated domestic disputes at Boyd's childhood home; Roy C. Snead, Jr., Sheriff of Calhoun County, who was familiar with William Hardy Boyd Jr.'s (Boyd's father), arrest record and alcoholism; Kathy Gurley, who would have testified to the circumstances surrounding Boyd's childhood; Charles Pierce, Jr., Boyd's brother-in-law, who would have testified to the circumstances surrounding Boyd's childhood; Joseph Burton, a forensic pathologist from Georgia who reviewed material in Boyd's case; Carl Majeskey, a consultant for lawyers and insurance companies in the field of firearms; and Louis Mulray Tetlow, a licensed clinical psychologist. Boyd also presented records from the Department of Human Resources, hospitals, and courts to support the oral testimony.
At the Rule 32 hearing, Boyd called Jan Vogelsang, a clinical social worker with extensive expertise in victimization and trauma. She testified that in preparing a psychosocial assessment FN6 on Boyd, she determined that Boyd came from “one of the worst family situations [she] ha[d] seen in terms of violence and neglect, alcoholism. It certainly rank[ed] up there in the top three or four worst cases.” (Vol.17, R. 292-93.) However, when asked if Boyd made a choice to participate in the murders, Vogelsang testified that, “[Boyd] made a choice to go there, and once he was there, obviously things got out of control. Everyone has choices, but sometimes they make bad decisions and make bad choices, and in this case he certainly did that.” (Vol. 17, R. page 279.)
FN6. Psychosocial assessment was defined as “the procedure that is used to gather voluminous information and to use that information to try and explain human behavior and then design a plan in some situations to try to change that behavior.” Vol. 17 at 293.
We agree with the trial court's ruling that the appellant's trial counsel did not render ineffective assistance for failing to call these witnesses. “ ‘There ha[s] never been a case where additional witnesses could not have been called.’ ” Fortenberry v. State, 659 So.2d 194, 199 (Ala.Cr.App.1994) (quoting State v. Tarver, 629 So.2d 14, 21 (Ala.Cr.App.)) See also Lightbourne v. Dugger, 829 F.2d 1012, 1025-26 (11th Cir.1987) ( “This court has specifically ruled that counsel's decision to rely on the defendant's testimony rather than offering the testimony of the defendant's family members to show a ‘turbulent family history’ may be a reasonable strategic choice under the circumstances.”). Moreover, “Failure to present psychiatric evidence in mitigation does not necessarily constitute ineffective assistance of counsel.” Duren v. State, 590 So.2d 360, 365 (Ala.Cr.App.1990).
“We cannot say that trial counsel's performance was deficient simply because he did not call every witnesses who conceivably may have been willing to testify at the sentencing phase of his trial. See State v. Tarver, 629 So.2d at 21. ‘In a challenge to the imposition of a death sentence, the prejudice prong of the Strickland inquiry focuses on whether “the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” ’ Stevens v. Zant, 968 F.2d 1076, 1081 (11th Cir.1992), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 695 (1993), quoted in Daniels, 650 So.2d at 568.”
Bui v. State, 717 So.2d 6, 22 (Ala.Cr.App.1997).
The trial court in this case chose to override the jury's recommendation because the aggravating circumstances greatly outweighed the mitigating circumstances. The following is an excerpt from the trial court's “Findings Concerning the Existence or Non-Existence of Aggravating Circumstance.”
“By any standard acceptable to a civilized society, these crimes were extremely wicked and shockingly evil. They were perpetrated with a design to inflict a high degree of pain with utter indifference to the suffering of the victims. The Court recognizes that all Capital offenses are heinous, atrocious and cruel to some extent, but the degree of heinousness and cruelty in these offenses far exceeds that which is common to all Capital offenses.
“....
“After due consideration of all the matters that were presented to the Court during this hearing, both in mitigation and aggravation, the Court has carefully weighed the aggravating and mitigating circumstances which it finds to exist in this case, and has given consideration to the recommendation of the jury contained in its advisory verdict, and has taken into consideration all other matters that are properly before the Court, including the pre-sentence report and the arguments of the State and the Defendant. While the mitigating circumstances and the jury's recommendation of life without parole have weighed [heavily] in the Court's consideration, this Court does now find, and is convinced beyond a reasonable doubt and to a moral certainty that the aggravating circumstances of this horrible, cold-blooded crime as shown and brought before the Court far outweigh the mitigating circumstances shown to the Court, and that said aggravating circumstances outweigh the said mitigating circumstances in all regards and that they are sufficient in both quantity and quality to more than uphold a sentence of DEATH in this case.”
Boyd v. State, 542 So.2d 1247, 1268-70 (Ala.Cr.App.1988) (Appendix to opinion).
Boyd has not shown that the lack of psychological evidence or any other evidence at the sentencing phase prejudiced him. In fact, the evidence suggested that Boyd's childhood, although terrible, was not a factor in his committing two murders. Although family and friends testified at the Rule 32 hearing that Boyd had endured a terrible childhood and mental health experts testified in an effort to connect Boyd's childhood to his participation in the double murder, it was the conclusion of each expert that, at the time of the murders, Boyd knew right from wrong but made a choice to commit murder. We do not believe that this additional evidence would have shifted the balance between the aggravating circumstances and the mitigating circumstances and changed the outcome of the trial.
Only one of Boyd's three appointed counsel, Steve Levinson, testified at the Rule 32 hearing. He first stated that the defense did not plan a strategy for the sentencing hearing. He then testified that, upon a conviction, the defense strategy was to “try to mitigate the effect of the conviction through a family member's testimony; humanize the defendant, so to speak.” (Vol.16, R. 132.) Counsel's tactical choices will not be second-guessed.FN7 Moreover, Levinson's penalty phase strategy was successful; the jury recommended, by a vote of 7-5, that Boyd be sentenced to life imprisonment without parole.
FN7. Boyd's complaint that the trial court severely handicapped his penalty-phase presentation by allowing only 40 minutes between the guilt phase and the penalty phase is without merit. He stated that he asked the trial court for more time to prepare but that the trial court refused. We note that refusing to allow more time was not error. Section 13A-5-45(a), Ala.Code 1975, states that when the sentence hearing is conducted before the trial jury, “[t]he sentence hearing shall be conducted as soon as practical after the defendant is convicted.” See, Fortenberry v. State, 659 So.2d 194 (Ala.Cr.App.1994) (“The appellant further contends that his counsel's performance was ineffective because, he says, counsel failed to investigate in preparation for the penalty stage of the proceedings and failed to call additional witnesses. The record reflects that the guilt phase was completed on Saturday. Counsel asked for a continuance until Monday to have more time to prepare for the penalty phase. The court polled the jury and after ascertaining that the members of the jury wished to proceed, the court continued the proceedings without delay.” We found no error in Fortenberry, stating that additional witnesses can always be called and that under the facts, the defendant suffered no prejudice.).
Moreover, even if the alleged failure to present mitigating evidence was an oversight and not a tactical choice by counsel, it was harmless error. In overruling the jury's recommendation and sentencing Boyd to death, the trial court found that these crimes were “extremely wicked and shockingly evil.” The trial court continued: “all Capital offenses are heinous atrocious and cruel to some extent, but the degree of heinousness and cruelty in these offenses far exceeds that which is common to all Capital offenses.” Boyd, 542 So.2d at 1268. Although it was established at the Rule 32 hearing that Boyd had had a traumatic and unhappy childhood, there was also testimony that he knew right from wrong and that he had just made a bad decision in committing a double murder. Had the testimony presented at the Rule 32 hearing regarding Boyd's childhood been presented at the sentencing hearing it is highly unlikely that the trial court would have been persuaded to sentence Boyd differently.
We cannot say that Boyd's counsel's performance was deficient or that Boyd suffered prejudice because counsel failed to call additional mitigation witnesses at sentencing.
I.B. and V.
Boyd claims that his constitutional right to be free from double jeopardy was violated and that his trial counsel was ineffective for failing to assert that violation.
The substantive claim, which concerns a challenge to the indictment, is procedurally barred because it was raised and addressed at trial and could have been raised on direct appeal. Rule 32.2(a)(2), and (a)(5), Ala.R.Crim.P. To the extent that the issue is presented as a double-jeopardy issue it is precluded because it could have been raised at trial and on appeal. Rules 32.2(a)(3) and (a)(5), Ala.R.Crim.P.
Boyd was tried and convicted of eight counts of capital murder for the deaths of two people. According to Boyd, “[t]he State's slicing up this offense into eight different counts deprived Mr. Boyd of his right to be free from double jeopardy under state and federal law.” (Appellant's brief at p. 7.) He argues that “his trial counsel did not properly challenge this multiplicity of counts or the fact that Mr. Boyd was charged with separate crimes that were not even offenses themselves under Alabama law (e.g., ‘murder during a kidnapping with intent to terrorize’).” Boyd also asserts that this issue was not presented on direct appeal.
According to Boyd,
“Had his trial counsel properly challenged this overcounting, Mr. Boyd would have gone to trial on a smaller number of legally-cognizable counts of murder. A jury faced with fewer counts of murder would be less likely to be overwhelmed by the charges or to see the defendant before them as a unrestrained killer. Not only might this have made individual jurors less prone to convict, but the jury would likely have recommended life-without-parole by a larger margin, which also would likely have had an effect on the judges's final sentence. But for counsel's failure, the results of Mr. Boyd's trial and sentencing would have been different.”
(Appellant's brief at p. 8.)
Levinson testified at the Rule 32 hearing that Boyd's original appointed counsel, Levinson's predecessor, had filed a motion objecting to the indictment. That motion was denied. Levinson stated that when he was appointed to represent Boyd, he adopted and ratified prior counsel's motions. Therefore, trial counsel was not ineffective on this ground because trial counsel's performance was not deficient.
Moreover, we agree with the State's assertion that Hyde v. State, [Ms. CR-95-2036, January 30, 1998] --- So.2d ---- (Ala.Cr.App.1998), is dispositive of this claim and shows that Boyd was not prejudiced by counsel's performance. In Hyde we stated:
“The United States Supreme Court has explained the purpose of the Double Jeopardy Clause as follows:
“ ‘It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’
“ North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). ‘The Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’ Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). In this case, the appellant was not prosecuted a second time for the same offense after an acquittal or after a conviction. Therefore, we must determine only whether the appellant is being punished multiple times for the same offense or is receiving a greater punishment than the legislature intended. Because this case involved the death penalty, the appellant cannot be punished twice for the same offense. He ‘has only been sentenced to die once, and indeed, can only be put to death once.’ Ex parte McWilliams, 640 So.2d 1015, 1022 (Ala.1993). Furthermore, even if the appellant's right to be free from double jeopardy was violated by the two convictions for the murder of a single witness, any error is harmless. If one conviction for the murder of a witness was void, the convictions for the other count of murder of a witness and for murder during a burglary would remain, and either conviction would be sufficient to support a death sentence. Id.
“The appellant's argument that, during the sentencing phase, the jurors might have been influenced by the number of convictions is refuted by the fact that the jury recommended a sentence of life imprisonment without parole. His argument that the trial court, in sentencing him, considered the fact that he had multiple convictions is also without merit. In its statement of the facts of the case, the trial court simply indicated that the appellant had been found guilty of two counts of murdering a witness. However, the trial court could not have, and in fact did not, consider these convictions as aggravating circumstances in determining the appellant's punishment. Therefore, there is no indication in the trial court's sentencing order that the trial court improperly considered the two convictions in sentencing the appellant to death by electrocution. For the foregoing reasons, the appellant's argument is without merit.”
778 So.2d at ----. It is clear that the jury was not overwhelmed by the number of charges pending against Boyd because it returned a sentence recommendation of life imprisonment without parole. Moreover, the trial court's sentencing order did not reflect that the number of convictions were treated as an aggravating circumstance. Boyd can suffer only one punishment in this case-he can be put to death only one time.
Therefore, Boyd has not shown that counsel's performance was deficient or that he was prejudiced by counsel's performance. He has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had made these objections in a different manner, the result of the trial would have been different.
I.C. and III.
Boyd claims that a complete transcript was not made of his trial-i.e., he complains that the following proceedings were not transcribed: voir dire examination, jury selection, arguments of counsel, and bench conferences. He also argues that his trial counsel was ineffective for failing to require that these proceedings be transcribed. He asserts that “[t]he failure to transcribe this record accurately prevented Mr. Boyd from receiving a full review of his case and has precluded him from adequately litigating such claims as the improper denial of strikes for cause and improper elimination of black veniremembers by the prosecution.” (Appellant's brief at p. 42.) We construe this language as asserting that Boyd was prevented from receiving review of possible violations of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
The substantive claim is procedurally barred because it could have been, but was not, raised and addressed at trial and on direct appeal. Rule 32.2(a)(3) and (5), Ala.R.Crim.P.
Boyd argues that because trial counsel failed to ensure that all aspects of his trial were transcribed, appellate counsel was unable to properly raise all issues concerning jury selection, the need for a change of venue, and jury strikes for cause, and the appellate courts were unable to review such issues. Because Boyd's trial counsel also served as his appellate counsel, counsel should have been aware of and alleged specific facts showing prejudice in his petition. However, Boyd's claim is speculative; he has not presented a single specific allegation suggesting that an incomplete record caused him to suffer prejudice. He has not argued that a single black veniremember was struck. (Appellant does make this argument later; that argument is discussed in Parts I.D. and XII, infra.) Moreover, a court reporter has never been required to transcribe bench conferences or to record the striking of the jury unless requested to do so. Ex parte Harris, 632 So.2d 543, 545 (Ala.1993), aff'd, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995); Ex parte Land, 678 So.2d 224, 245 (Ala.1996). At the time of Boyd's March 1987 trial there was no requirement that the voir dire be transcribed. Section 12-17-275, Ala.Code 1975, did not require transcription of the voir dire. It was not until the implementation of Rule 19.4(a), Ala.R.Crim.P., effective January 1, 1991, that court reporters were required to record the voir dire examination of the jury.
Therefore, this issue has been insufficiently pleaded because the claim is based on mere allegations and conclusions. See Rule 32.3 and 32.6(b), Ala.R.Crim.P. Likewise, he has not established that trial counsel's performance was deficient or that he was prejudiced under Strickland. Boyd has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had made this objection, the result of the trial would have been different.
I.D. and XII.
Boyd claims that the State exercised its peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), and that his counsel failed to object.
The substantive claim is procedurally barred because it could have been, but was not, raised and addressed at trial and on direct appeal. Rule 32.2(a)(3) and (5), Ala. R.Crim. P.
Boyd contends that trial counsel did not object even though the state used five peremptory strikes to remove five of the six black veniremembers remaining in the pool after challenges for cause. According to Boyd, “the State of Alabama never provided race-neutral reasons for the striking of nearly all the African-Americans at Glenn Boyd's trial, and the court below did not require it to.” (Appellant's brief at p. 59.)
Boyd is white. At the time of his March 1987 trial, Powers, which extended Batson to white defendants, had not been decided. “ ‘We cannot say that counsel's performance was deficient for failing to forecast changes in the law.’ ” Davis v. State, 720 So.2d 1006, 1019-20 (Ala.Cr.App.1998) (quoting Hallford v. State, 629 So.2d 6, 11 (Ala.Cr.App.1992)). “[Boyd's] trial lawyers were not obliged to object based on possible future developments in the law in order to render effective assistance.” Thompson v. State, 581 So.2d 1216, 1236 (Ala.Cr.App.1991) (citing Knight v. Dugger, 863 F.2d 705, 733 (11th Cir.1988); Elledge v. Dugger, 823 F.2d 1439, 1443 (11th Cir.), modified on other ground, 833 F.2d 250 (11th Cir.1987), cert. denied, 485 U.S. 1014, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988); Thompson v. Wainwright, 787 F.2d 1447, 1459 n. 8 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987); and Funchess v. Wainwright, 772 F.2d 683, 691 (11th Cir.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1242, 89 L.Ed.2d 349 (1986)).
Therefore, Boyd has not shown that his counsel's performance was deficient or that he was prejudiced by his counsel's performance in this regard. Strickland, supra. He has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had made this objection, the result of the trial would have been different.
I.E. and XVII.
Boyd claims that improper victim impact evidence was admitted and that it permeated the trial and sentencing. He also argues that his trial counsel was ineffective for allowing the admission of the evidence.
The substantive claim is procedurally barred because it could have been, but was not, raised and addressed at trial and on direct appeal. Rule 32.2(a)(3) and (a)(5), Ala.R.Crim.P.
Boyd contends that trial counsel erroneously allowed the trial court to consider a presentence report that included the explicit desire of the victims' families that Mr. Boyd be put to death. Boyd is referring to the following information contained in the presentence report:
“ Victim Impact
“The State contends that the family of both victims have suffered great mental and emotional distress at the hands of Glenn Boyd and Robert Milstead and they continue to seek the death penalty in this case.”
(C.R. in direct appeal, p. 386.)
Trial counsel was not ineffective because the record from direct appeal indicates that there was no victim's impact statement. (direct appeal, C.R. 386.)
Moreover, Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), holds:
“If a State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.”
(overruling Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989)).FN8
FN8. Booth “prohibited consideration of a victim's family members' characterization and opinions about the crime, the defendant, and the appropriate sentence during the sentencing phase of a capital murder trial.” Gathers extended Booth to include a prosecutor's statements made at sentencing about the personal qualities of the victim.
Moreover, even if the information in the presentence report was considered to be an inadmissible victim's impact statement, we would not find that its admission prejudiced Boyd. This alleged victim impact statement consisted of 14 lines in a 7-page report. Additionally, the presentence report in this case was not presented to the jury, but was presented to the court. There was no indication in the trial court's sentencing order that it had considered the alleged victim's impact statement in sentencing Boyd. “[A] remand [for new sentencing] is not required in every death penalty case in which a victim impact statement appears in a presentence investigation report.” Arthur v. State, 711 So.2d 1031, 1092 (Ala.Cr.App.1996), aff'd, 711 So.2d 1097 (Ala.1997). Arthur was distinguished from Booth (which was subsequently overruled by Payne ) as follows:
“ ‘ “[The appellant] next contends that the introduction of victim impact information at the sentencing phase of the trial violated the Eighth and Fourteenth Amendments to the United States Constitution.
“ ‘ “After the jury had rendered its advisory verdict in the sentencing phase of the trial, but before the trial court had pronounced sentence, a ‘presentence report’ was filed by the Alabama Board of Pardons and Paroles. That report contained the following statement, which, [the appellant] contends, violates the Eighth and Fourteenth Amendments:
“ ‘ “ ‘It is the belief of this officer that this offense has had a significant impact on the lifestyle of [the victim's wife]. She is now a single parent whose son has lost his father. She reports that her life has changed socially, emotionally, and that she is very paranoid, often nervous and very easily upset.’
“ ‘ “....
“ ‘ “... In the present case, the presentence report [containing the victim's impact information] was not presented to the jury, but was presented to the court. We also note that the victim impact information comprises only three sentences in a 36-page report that contains, among other things, details of the offense, mitigating and aggravating circumstances, [appellant's] criminal record, and [appellant's] personal history. We hold that the introduction of the presentence report containing the above statement was not error.” ’ ”
Arthur v. State, 711 So.2d at 1092 (quoting Ex parte Martin, 548 So.2d 496, 497-98 (Ala.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989)); Ex parte Rieber, 663 So.2d 999 (Ala.1995). Boyd has not shown that trial counsel's failure to object constituted deficient performance or that he was prejudiced by counsel's performance. Nor has Boyd shown that counsel's performance was outside “the wide range of reasonable professional assistance” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, or that there is a reasonable probability that, if trial counsel had made these objections in a different manner, the result of the trial would have been different.
I.F.
Boyd contends that trial counsel failed to prepare properly for pretrial hearings. According to Boyd, trial counsel did not effectively argue a motion for a change of venue, did not adequately pursue Boyd's right to individually sequestered voir dire, and did not sufficiently challenge the indictment. Boyd asserts that had trial counsel filed and pursued the appropriate pretrial motions the outcome of his trial would have been different. Boyd has presented no facts to support this claim. The claim is based on mere allegations and conclusions. Boyd has not met either the burden imposed by Rule 32.3 or the specificity requirements of Rule 32.6(b), Ala.R.Crim.P. Likewise, Boyd has not shown that trial counsel's performance was deficient or that he was prejudiced by counsel's performance. He has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, nor has he shown that there is a reasonable probability that, if trial counsel had made these objections in a different manner, the result of the trial would have been different.
I.G.
Boyd contends that trial counsel failed to adequately cross-examine and otherwise to impeach the credibility of key state witnesses, including Robert Milstead, Kenny Surrett, and the State's forensic experts. According to Boyd:
“It was essential that Mr. Boyd's attorneys impeach the testimony of the state's main witness[es]. These included the forensic experts, who gave evidence regarding which wounds were caused by which firearms, what kind of wounds the victims suffered, and how long after the infliction of the wounds they died. Their testimony must have been used to support the trial court's finding of heinous, atrocious or cruel aggravating factor, and was also used by the prosecutor to bolster his theory to the jury on how the murders occurred. Also critical was Kenny Surrett, who testified that petitioner told him about the killings. But probably the most important testimony to impeach was that of codefendant Robert Milstead who was the sole eyewitness to (and participant in) the killings and who testified that petitioner was responsible for them.”
(Appellant's brief at p. 12.) According to Boyd: “Defense cross-examination of Kenny Surrett only served to bolster his allegations that petitioner had said that he personally had been involved in the killings.” (Appellant's brief at p. 14.) (Emphasis in appellant's brief.)
We agree with the State that Boyd's contentions concerning Surrett are unclear. The claim consists of conclusory allegations unsupported by facts sufficient to show that Boyd is entitled to any relief. Therefore, regarding Surrett, Boyd has not met either the burden imposed by Rule 32.3 or the specificity requirements of Rule 32.6(b), Ala.R.Crim.P. It follows that Boyd has not shown that his counsel's performance was deficient or that he was prejudiced by his counsel's performance in this regard. Strickland, supra.
Boyd argues that trial counsel failed to obtain experts in ballistics, firearms, or pathology to challenge the testimony of State's witnesses.
According to Boyd:
“Examination of [State] experts Higgins, Embry and Scheuerman failed to expose the inconsistencies in their testimony and the failure of their data to support their conclusions about the manner and time of death and the wounds allegedly inflicted on the victims.”
(Appellant's brief at p. 14.)
Boyd asserts that a pathologist could have testified that much of Robert Milstead's testimony against Boyd was a lie. Boyd states that a pathologist could have testified that Milstead's,
“claim that Mrs. Blackmon's nose was ‘driven through her skull’ was pure, sick hyperbole.... They could have established that Mr. Blackmon could not have been beaten with a stick as Mr. Milstead averred and that there was no evidence of strangulation.... They would have shown that much of the disfigurement seen in Mrs. Blackmon's body likely occurred after she died and her body was buffeted about in a barrel.... They would also have shown that Mrs. Blackmon most likely died quickly as a result of gunshot wounds and that there was no evidence for either victim of a lingering death.... All of this would have been critically important to establishing that Mr. Milstead was a liar and that while terribly wrong and tragic, the deaths of the Blackmons were not the gruesome, ‘heinous' spectacle the prosecution contended.”
(Appellant's brief at p. 13.)
We do not agree with Boyd's assertion that testimony of a pathologist would have changed the outcome of the trial.FN9 The testimony given by the State's pathologist at trial essentially corroborated Milstead's version of the injuries sustained by the victims during the incident.
FN9. The pertinent part of Milstead's testimony at trial was as follows.
“Milstead drove the car and Mr. Blackmon sat beside him in the front seat. The appellant and Mrs. Blackmon sat in the backseat. Milstead drove across the Coosa River to Ohatchee (in St. Clair County) and drove down a dirt road. At some point, the appellant, Milstead, and Mrs. Blackmon got out of the car and walked to a clearing behind a brush pile. The appellant then told Mrs. Blackmon to sit down. He tied her hands and feet, gagged and blindfolded her. After talking to Mrs. Blackmon, the appellant hit her on the nose with a stick and then hit her on the forehead. Mrs. Blackmon screamed and the appellant tried to choke her with a cloth. The appellant then took the .22 gun, muffled it with the cloth and shot Mrs. Blackmon. The shot did not kill her so the appellant took the .25 gun from Milstead and shot Mrs. Blackmon in the back and head. They covered Mrs. Blackmon's body up and left.
“Milstead and the appellant then took Mr. Blackmon back across the river (into Calhoun County) and parked on a dirt road. The appellant told Mr. Blackmon to get out of the car. The appellant hit Mr. Blackmon on the head with a stick. This hit broke the taillight on Mr. Blackmon's car. Then the appellant took a piece of cloth and started choking Mr. Blackmon. Mr. Blackmon struggled and stabbed the appellant with a stick. The appellant took out the .25 gun and put it to Mr. Blackmon's throat. Mr. Blackmon begged the appellant not to shoot him and said he could get $50,000 for him. The appellant told Mr. Blackmon it was too late and shot him in the chest and neck. Milstead and the appellant then put Mr. Blackmon's body in the trunk. Milstead and the appellant then drove Mr. Blackmon's car to the Piggly Wiggly grocery store lot and parked it there. They went to Milstead's father's house and washed up and changed clothes. Later that night, Milstead and the appellant went back and picked up Mr. Blackmon's car and drove it to a boat ramp on the Coosa River. The appellant rolled the windows of the car down and rolled the car down the ramp into the river. After a few minutes, the car sank. They threw the two pistols in a creek that night.
“The next morning, Milstead and the appellant went back to the place where they left Mrs. Blackmon's body. They were going to put her body in a barrel that Milstead bought the previous afternoon. The appellant said the body was too stiff and he took Milstead's ax and tried to cut Mrs. Blackmon's body in half. He then took the body and broke Mrs. Blackmon's back. The two then put her body into the barrel with some cement blocks and rocks. The appellant cut some holes in the barrel with the ax. Milstead and the appellant then rolled the barrel into the river and it sank.
“The appellant told Milstead to tell the police a story about the mafia if he was questioned concerning the Blackmons' deaths. He said that Milstead would wind up like Mrs. Blackmon if he said anything to the police about him.
“Milstead testified that he had a conversation with Sharon Johnson on the day the murders occurred. Milstead told Johnson that he and the appellant kidnapped the Blackmons and that the appellant killed them.”
Boyd v. State, 542 So.2d 1247, 1253-1254 (Ala.Cr.App.1988).
“Eugene Hunt Scheuerman testified that he was a medical examiner with the Department of Forensic Sciences in March of 1986. He stated that he was present when a black Cadillac Eldorado [automobile], tag number 11P-2864, was pulled from the Coosa River. The body of Fred Blackmon was removed from the trunk of this vehicle. Fred Blackmon was identified by the use of dental records.
“Scheuerman performed the autopsy on Fred Blackmon's body. Mr. Blackmon's clothing was soiled, muddy, and wet when it was removed from the trunk of the vehicle. There was a strip of white cloth on Mr. Blackmon's body which was used as a gag. Three holes were present on Mr. Blackmon's shirt. Two gunshot wounds were found on Mr. Blackmon's body. One of the gunshots penetrated the neck and passed into the chest cavity. The other gunshot penetrated the left side of the chest and passed through the heart. Both of these projectiles were recovered. The weapon which caused these gunshot wounds was fired at close range.
“Scheuerman also found minor blunt force injury to Mr. Blackmon's head. However, he determined Mr. Blackmon's cause of death to be the gunshot wounds to the chest and neck.
“Dr. Joseph Embry, a forensic pathologist with the Department of Forensic Sciences, testified that he was present when a 55-gallon barrel was pulled from the Coosa River. The body of Evelyn Blackmon was found inside the barrel. She was identified through the use of head X-rays. Cinder blocks and bricks were also found in this barrel.
“Embry performed the autopsy on Mrs. Blackmon's body. There was a gag in Mrs. Blackmon's mouth and a piece of cloth tied around her ankles. Mrs. Blackmon sustained three gunshot wounds. One of the wounds was to the head and it was a superficial wound. Another one of the wounds was to the right side of the neck. The other wound was to the back. None of the projectiles which caused these wounds was found in Mrs. Blackmon's body.
“Mrs. Blackmon also sustained a laceration of her right forehead. She had numerous fractures to her nose and face. Mrs. Blackmon also had a chop wound in her lower back which penetrated her backbone. Mrs. Blackmon's cause of death was due to the two gunshot wounds to her neck and back.”
Boyd v. State, 542 So.2d 1247, 1249-50 (Ala.Cr.App.1988).
Joseph Burton testified for the defense as an expert in forensic pathology at Boyd's Rule 32 hearing. The essence of Burton's testimony was that the victims sustained injuries that caused their deaths but those injuries were not as gruesome as Milstead described. Burton also testified that the absence of blood around the victims' wounds (other than the fatal gunshot wounds) suggested that the wounds were inflicted post-mortem. The intent of this testimony was to negate a finding that the murders were especially heinous, atrocious, or cruel. However, Burton conceded that the length of time that the victims' bodies were underwater made designation of the wounds as anti- or post-mortem inconclusive. (Vol.18, R. 206.) Therefore, Burton's testimony did not discredit the testimony of the State's pathologist.
Additionally, we note that the trial court found the murders to be especially heinous, atrocious, and cruel not only because of the severe physical pain and suffering sustained by the victims prior to their death, but also because of the mental suffering inflicted before they were killed. Boyd came into the victims' home and told them he was going to kill their daughter (his ex-girlfriend), he robbed them, he kidnapped them at gunpoint, and he bound, gagged, and blindfolded them. He took them to a secluded area where they begged for their lives. Mrs. Blackmon was killed first and Mr. Blackmon continued to beg for his life. After disposing of the bodies in the river, Boyd bragged about the killings and about how cold-blooded he was. Boyd v. State, 542 So.2d 1247, 1268 (Ala.Cr.App.1988)(Appendix to the opinion). The absence of physical suffering by the victims could not mean that this crime was not especially heinous, atrocious, and cruel.
According to Boyd, a firearms or ballistics expert could have impeached Milstead's version of who shot the victims and could have made a “huge difference in confronting the evidence against Mr. Boyd for both aspects of the trial.” (Appellant's brief at p. 13.)(Emphasis in appellant's brief.) According to Boyd, an expert would have shown that it was far more likely that both murders were committed with Milstead's gun. It was Milstead's testimony at trial that Boyd took Milstead's gun and shot the victims. See Boyd v. State, 542 So.2d 1247, 1250 (Ala.Cr.App.1988). The testimony of a ballistics expert would not resolve who pulled the trigger. Therefore, we fail to see how a ballistics expert could have impeached Milstead's testimony regarding who shot the victims.
Boyd has not met either the burden of pleading imposed by Rule 32.3 or the specificity requirements of Rule 32.6(b), Ala.R.Crim.P. Therefore, Boyd has not shown that his counsel's performance was deficient or that he was prejudiced by his counsel's performance in this regard. Strickland, supra.
Regarding the impeachment of Milstead, Boyd contends:
“While forced to repeat only that he was saving himself from the electric chair, the defense could also have truly impeached the codefendant's testimony with this evidence.... Indeed, the trial testimony itself was riddled with statements unsupported by and contradicted by the state's physical evidence; was internally inconsistent; and contradicted numerous elements of the statements previously given. Milstead changed his testimony about whether he had a gun ...; whether he knew the victims ...; what money was stolen and what happened to it.... He added commentary on the stand that had never been mentioned in any prior statement.... His testimony about how the victims were killed and where he allegedly was at the time was begging for impeachment. Moreover, had they adequately prepared, counsel could have challenged Milstead with the very contradictory and wholly inconsistent statements he had given the police prior to trial. The codefendant had given seven different statements.... These ranged from asserting no part in the murders, to claiming mere assistance, to describing petitioner's involvement with Fred Blackmon. These statements totally contradicted one another about what allegedly took place in the Blackmon residence and by the river.
“Trial counsel did not undertake such important cross-examination. Mr. Boyd's trial lawyer did little more than point out that the testimony and statement differed, period.... They did not expose to the jury the codefendant's lies on the stand. They did not elicit the key aspects in which the witness continually contradicted himself. The examination by the defense was rambling and did not convince the jury to reject what should have been proved to be the least credible evidence from the prosecution....
“Defense counsel's failures to impeach the state's case prejudiced petitioner immeasurably. Had jury and judge been apprised of the weaknesses in the state's case, Mr. Boyd would not have been convicted of capital murder and sentenced to death.”
(Appellant's brief at pp. 14-15.)(Footnote omitted.)
We agree with the State's assessment that the record from the direct appeal reflects that the jury knew that Milstead was testifying in exchange for a sentence of life imprisonment without parole and it knew that Milstead had given many different versions of the crime and had admitted that some statements he had made were not true. Boyd's allegation regarding Milstead ignores the cross-examination and the fact that the jury was informed that Milstead gave different versions of the crime and that he admitted that some of his statements to the police were untrue. These statements were entered into evidence. Trial counsel specifically attacked Milstead's credibility in closing arguments by challenging the jurors to read Milstead's various statements and to compare them to Boyd's statement to determine who was telling the truth. Milstead's testimony was also impeached at trial by the testimony of Sharon Johnson, Boyd's girlfriend, who testified that Milstead told her that he had shot Mrs. Blackmon and that Boyd had shot Mr. Blackmon. Boyd v. State, 542 So.2d 1247, 1254 (Ala.Cr.App.1988). Moreover, Milstead was cross-examined concerning the physical assaults on the victims. During closing arguments, trial counsel pointed out that forensic evidence did not support Milstead's testimony, in particular his horrible testimony about the alleged use of an ax on Mrs. Blackmon's body.
Boyd has not shown that his counsel's performance was deficient or that he was prejudiced by his counsel's performance in this regard. Strickland, supra.
I.H. and XX.
Boyd claims that the prosecutor made improper arguments and misleading statements of facts and law throughout the trial, and that his counsel was ineffective for failing to object.
The substantive claim is procedurally barred because it could have been, but was not, raised and addressed at trial and on direct appeal. Rule 32.2(a)(3) and (5), Ala. R.Crim. P.
Boyd contends that his trial attorneys were ineffective because they did not object to the prosecutor's alleged improper arguments and misleading statements of facts and law allegedly made throughout the trial. Boyd's allegations are followed by string cites to the record on direct appeal.
I.H.-A.
Boyd argues that during opening and closing arguments, without objection from the defense, the prosecutor made exaggerated comments about Evelyn Blackmon's injuries, which were not supported by facts; stated whose “idea” it was to kill the Blackmons, without supporting facts in the record; stated that Boyd told Kenny Surrett that he had killed two people; made inaccurate representations about what Boyd told the police concerning his role in the crime; provided improper commentary on the answers Boyd gave to police interrogators; and made improper comments to the jury about Boyd's reasons for calling certain defense witnesses.
“ ‘ “During closing argument, the prosecutor, as well as defense counsel, has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference.”... “To justify reversal because of an attorney's argument to the jury, this court must conclude that substantial prejudice has resulted.” ’ ”
Hyde v. State, [Ms. CR-95-2036, January 30, 1998] --- So.2d ---- (Ala.Cr.App.1998). Boyd's alleged instances of misconduct do not demonstrate how he was prejudiced. As was stated in Hyde:
“Viewed in the context of the entire trial, the alleged instances of misconduct, even if they constituted misconduct, did not so infect the trial with unfairness as to make the resulting sentence a denial of due process. In fact, the jury recommended a sentence of life imprisonment without the possibility of parole, not death. Therefore, this issue is without merit.”
--- So.2d at ---- . Here, the jury returned a recommendation of life imprisonment without parole. Therefore, Boyd has not shown how counsel's performance resulted in prejudice. Moreover, we have searched the record on direct appeal for “plain error” that may have adversely affected Boyd's substantial rights and have found none. “ ‘A finding of no plain error is one factor to consider when assessing the performance of trial counsel.’ ” Grayson v. State, 675 So.2d 516, 524 (Ala.Cr.App.1995) (quoting Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988), aff'd, 548 So.2d 547 (Ala.)).
I.H.-B.
Boyd argues that the prosecution misled the jury by telling it that there was no evidence tending to show whether Milstead would receive a sentence of life imprisonment or death. This, according to Boyd, was a falsehood because, he says, Milstead was testifying against Boyd in exchange for his life. The circuit court at the Rule 32 hearing would not hear testimony from Milstead's defense attorney who, according to Boyd, would have testified that the agreement between the State and Milstead was that in return for testifying against Boyd he could escape the death penalty. Appellant's brief at p. 76, n. 22.
Again the jury's recommendation of life imprisonment without parole negates his showing that he was prejudiced by counsel's performance. Moreover, we have searched the record on direct appeal for “plain error” that may have adversely affected Boyd's substantial rights and found none. “ ‘A finding of no plain error is one factor to consider when assessing the performance of trial counsel.’ ” Grayson v. State, 675 So.2d 516, 524 (Ala.Cr.App.1995) (quoting Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988), aff'd, 548 So.2d 547 (Ala.1989)).
I.H.-C.
Boyd contends that the State withheld information about deals it made with Robert Milstead and Kenny Surrett; that it withheld the full statement of Tony Gathye, who he says would have testified that Boyd did not control Milstead's actions when he saw them after the murder; that the lunacy commission report on Milstead, which contained evidence tending to show that he was in touch with reality at the time of the crime and that he exhibited adult antisocial behavior, could have shown that Milstead was aggressive and knew what he was doing. Boyd asserts that these undisclosed documents and witnesses would have presented exculpatory and material evidence, and had trial counsel had access to them, the outcome of both the guilt and sentencing would have been different. Therefore, he argues, it was prejudicial error for the State not to have disclosed this information, which was in its possession.
This claim does not concern trial counsel's failure to challenge allegedly improper statements by the prosecutor. If the State withheld this information as Boyd alleges, then counsel cannot be ineffective for not objecting because counsel was not aware of the information.
I.H.-D.
Boyd argues that the State's use of the testimony of Robert Milstead was improper, because, he says, the State knew or should have known that testimony was false, based on the number of conflicting statements Milstead gave. This claim does not concern trial counsel's failure to challenge allegedly improper statements by the prosecutor. Moreover, this claim conflicts with Boyd's claim that trial counsel failed to properly use Milstead's statements for impeachment purposes. Nevertheless, as stated elsewhere in this opinion, Milstead's statements were properly before the jury, and the jury was aware of their content. Boyd has not shown that counsel was deficient or that he was prejudiced in this regard.
I.H.-E.
Boyd argues that the prosecutor misstated the law by suggesting to the jury that it had a duty to Robert Milstead to convict Boyd of capital murder. Boyd also argues that the prosecutor improperly suggested to the trial court that the court had no authority to impose a sentence of life imprisonment without parole and improperly sought the death sentence by relying on religious precepts. “[T]he trial court is presumed to know the law and to disregard any improper comments or evidence in sentencing.” Hyde, supra. Without a more specific argument, we assume that the trial court did that. Boyd has not demonstrated how he was prejudiced. Moreover, we have searched the record on direct appeal for “plain error” that may have adversely affected Boyd's substantial rights and found none. “ ‘A finding of no plain error is one factor to consider when assessing the performance of trial counsel.’ ” Grayson v. State, 675 So.2d 516, 524 (Ala.Cr.App.1995) (quoting Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988), aff'd, 548 So.2d 547 (Ala.)).
In addition to the above, Boyd has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had objected to the allegedly improper comments, the result of the trial would have been different.
I.I.
Boyd contends that trial counsel allowed improper and prejudicial evidence to be admitted without objection. He argues that trial counsel failed to object to
“certain of the many gruesome photographs of the victims that were unnecessary to the determination of any issue at trial and [that] were introduced solely to inflame the jurors against [Boyd].... They did not object when the prosecutor elicited ‘other crimes' evidence from an important state witness. They did not object when the other irrelevant evidence was allowed to go to the jury, including evidence regarding a necklace found in Mr. Boyd's car that was never sufficiently tied to Evelyn Blackmon....
“These failures to object, individually and together, undermine confidence in the outcome of petitioner's trial and sentencing and severely prejudiced him....”
(Appellant's brief at p. 17.)
At the Rule 32 hearing, Levinson testified that the victims were identified at trial from photographs. He stated that the parties could have entered into a stipulation as to identity to avoid introducing the photographs. It is pure conjecture and speculation as to whether the State would have agreed to such a stipulation. Boyd has not shown that trial counsel was ineffective in this regard or that the outcome of the trial would have been different had there been a stipulation.
Regarding his allegation about other crimes and the necklace, Boyd has not presented any facts to support these claims. The claims are based on mere assertions and conclusions. Boyd has not specified how any alleged failure to object rendered counsel ineffective. Therefore, Boyd has not met either the burden of pleading imposed by Rule 32.3 or the specificity requirements of Rule 32.6(b), Ala.R.Crim.P. Boyd has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had objected to alleged improper and prejudicial evidence, the result of the trial would have been different.
I.J.
Boyd contends that trial counsel failed to seek appropriate expert assistance for the pretrial, trial, and sentencing proceedings. Boyd argues:
“While trial counsel sought the assistance of a mental health expert and saw their motion denied ... they did not pursue the need for other experts in an effort to fight the state's case for a capital conviction and sentence of death. Had they obtained such assistance, they would have been able to raise sufficient doubts to preclude a capital conviction and the ultimate imposition of death sentence.
“For example, trial counsel did not move the court for funds for a ballistics and firearms expert despite the fact that they had no training or expertise in these fields.... Had they done so, they would have been able to present evidence demonstrating that the shots fired at Evelyn Blackmon were more consistent with bullets fired from the .25, the gun possessed by codefendant Robert Milstead.... The State's forensic experts could have been cross-examined credibly with the help of a ballistics specialist with regard to which firearm likely shot the bullets that resulted in each wound. Similarly, the damaging testimony about the use of an ax to ‘chop’ Evelyn Blackmon would have been impeached with proper cross-examination about toolmark identification and the attributes of the allegedly used ax.... The assistance of an expert on these matters also would have led to proper impeachment of state witness David Higgins regarding the inadequacies in his testing to determine the actual use of each gun....
“The defense had equal need for a specialist in pathology. A pathologist would have countered the state's theory that the victims lingered before they died, thereby challenging the state's ability to rely on the heinous, atrocious, or cruel aggravating factor and the trial court's finding of the same. A defense pathologist also would have challenged the unfounded speculations about what was allegedly done to Mrs. Blackmon both before and after her death.... Such expertise would have been critical in challenging the state's expert as well as the testimony of the codefendant....
“In addition to failing to investigate Mr. Boyd's troubled background ... trial counsel also failed to seek the services of a specialist who could have explained to jury and judge why growing up in an environment characterized by abuse, neglect, and alcoholism put petitioner at great risk for behaving violently himself.... Such an expert would have presented numerous mitigating factors and demonstrated for the factfinders how petitioner's background would have affected his development and judgment as a young adult. Counsel were also ineffective for making their one request for psychiatric assistance in open court rather that ex parte, as the state opposed the request and convinced the trial court to send Mr. Boyd to the state mental hospital over defense objection rather than provide a trained professional to explain the effects of petitioner's upbringing on his psychological make-up.... Had trial counsel made a proper and thorough argument detailing the need for mental health assistance and done so out of the presence of the district attorney, they would have received the aid of a psychiatric expert to work with rather than against the defense in pretrial, trial and sentencing proceedings.
“Trial counsel needed such expert assistance. They were not themselves trained in any of these areas ... and they had the testimony of a number of state experts to rebut. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) had been decided prior to Mr. Boyd's capital trial. His attorney's failure to secure expert assistance in this complex case was deficient performance that prejudiced petitioner at all phases of his capital trial.”
(Appellant's brief at pp. 17-20)(footnote omitted).
Boyd was evaluated by a licensed psychologist before trial. It was trial counsel's opinion that the report generated from this evaluation was not particularly helpful in his defense. Boyd disagrees with this assessment but offers nothing specific in rebuttal. (Appellant's reply brief at p. 12.)
Moreover, Dr. Joseph Burton, a pathologist; Carl Majesky, a consultant in firearms; Dr. Louis Mulry Tetlow, a psychologist; and Jan Vogelsang, a social worker, testified at the Rule 32 hearing. While their testimony was intended to be favorable to Boyd, and in some aspects appears to be so on the surface, none of the testimony presented at the Rule 32 hearing from these experts conclusively supports the claims quoted above. In the final analysis, all the testimony was either reconciled with the opinions of the State's experts or its reliability was called into question. For instance, Burton stated that the victims' bodies had stayed underwater too long to determine when specific injuries were inflicted; Majesky's qualifications were questionable and he did not know the effect of decomposition of the victims' bodies; Tetlow and Vogelsang said Boyd's actions were the result of bad decision-making on his part. Boyd has not shown that trial counsel's performance was deficient or that he was prejudiced. He has not shown that counsel's failure to call additional experts was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Moreover, Boyd has not shown that additional testimony would have changed the outcome of the case.
I.K. and XIII
Boyd claims that the security measures in the courtroom were excessive and prejudicial and that counsel was ineffective for failing to object to the use of those measures.
The substantive claim is procedurally barred because it could have been, but was not, raised and addressed at trial and on direct appeal. Rule 32.2(a)(3) and (5), Ala. R.Crim. P.
Boyd contends that his trial attorneys were ineffective because they did not object to the courtroom's being filled with uniformed officers, to the placement and use of a metal detector outside the courtroom, and to the fact that Boyd wore shackles inside the courtroom. According to Boyd, had trial counsel objected, and “these extreme and prejudicial ‘security’ steps been removed or diminished, the jury would have been able to deliberate in an untainted, nonthreatening atmosphere, and the result of the trial would have been different.” (Appellant's brief at pp. 20-21.)
Boyd has not presented any facts to support this claim. The claim is based on mere assertions and conclusions. Therefore, Boyd has not met either the burden of pleading imposed by Rule 32.3 or the specificity requirements of Rule 32.6(b), Ala.R.Crim.P. Boyd has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had made these objections, the result of the trial would have been different.
I.L.
Boyd contends that trial counsel was ineffective for failing to object to the admission into evidence of statements he says were illegally obtained from codefendant Robert Milstead. According to Boyd:
“Among the various statements made by Mr. Milstead and admitted into evidence against Mr. Boyd ... was a statement taken just minutes after the codefendant had asserted his right to counsel.... There is no evidence in the record to explain how Milstead came to ‘change his mind’ after invoking his 5th Amendment right. Indeed, any questioning after that point by any law enforcement officer would have been impermissible, as no lawyer had been provided during the interrogation.... The statement-incriminating as to Mr. Boyd-was thus illegally obtained and should not have been entered into evidence against petitioner. Trial counsel's failures to object to this inadmissible evidence was prejudicial error.”
(Appellant's brief at p. 21.)
Boyd did not have standing to object to the introduction of Milstead's statement. “The general rule is that a defendant has standing to challenge the admission of evidence only if the defendant's constitutional rights have been violated.” Williams v. State, 710 So.2d 1276, 1311 (Ala.Cr.App.1996) (“The appellant had no standing to challenge the voluntariness of [another's] statement or grand jury testimony.”), aff'd, 710 So.2d 1350 (Ala.1997). Boyd has not alleged any possible exception to this rule. Moreover, his claim ignores the possibility that Milstead may have reinitiated contact with interrogators. The United States Supreme Court held in Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378, (1981), that where an accused initiates further communication, exchanges, or conversations with the police, his prior invocation of the right to counsel during the interrogation is waived. See Whitt v. State, 733 So.2d 463 (Ala.Cr.App.1998).
Therefore, this claim is barred as being insufficiently pleaded because it is based on mere assertions and conclusions. Boyd has not met either the burden of pleading imposed by Rule 32.3 or the specificity requirements of Rule 32.6(b), Ala.R.Crim.P. Neither has Boyd shown that trial counsel was deficient or that he was prejudiced because of counsel's performance. He has not shown that counsel's performance was outside “the wide range of reasonable professional assistance” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, nor that there is a reasonable probability that, if trial counsel had made this objection, the result of the trial would have been different.
I.M., XXIV, and XXVIII.
Boyd claims that erroneous instructions were given by the trial court at the guilt phase of his trial and that his counsel was ineffective for failing to object to these instructions.
The substantive claims are procedurally barred because they could have been, but were not, raised and addressed at trial and on direct appeal (Issue XXIV), or were addressed on direct appeal (Issue XXVIII). Rules 32.2(a)(2), (3), and (5), Ala. R.Crim. P.
Boyd contends that his trial attorneys were ineffective because they did not object to what he says were erroneous instructions. According to Boyd:
“Trial counsel's failure regarding the court's jury charges were manifold. They did not object adequately to the absence of a proper instruction on accomplice testimony; to the court's improper charges on lesser included offenses, including the absence of a felony murder instruction; to improper charging of multiple offenses; to the confusing charge on reasonable doubt; to the failure to define all critical terms to the jury; or to the flawed charge on intent to kill with regard to accomplice liability. Counsel failed adequately to object to the court's refusal to charge the jury on the distinction between murder and capital murder. See [Issue] XXVIII.... Trial counsel further failed to object to improper and prejudicial verdict forms. See [Issue] XXIV.
“Had counsel requested proper charges, made the necessary objections and secured accurate instructions, Mr. Boyd's jury would not have convicted him of the capital murders of both Fred and Evelyn Blackmon. Petitioner's counsel were ineffective for their handling of the instructions at their client's trial for his life.”
(Appellant's brief at p. 22.)
Regarding Issue XXIV Boyd argues that trial counsel was ineffective because error was committed when the trial court
“gave the jury only one acquittal form for each victim even though the court instructed the jury on eight counts of capital murder .... The failure to provide the jury with acquittal verdict forms for each and every one of the eight capital murder counts deprived the jury of the opportunity to consider each count separately and effectively coerced the jury into returning a guilty verdict on four counts of capital murder even if it only believed Mr. Boyd guilty of one count of capital murder and not guilty on the other counts.”
(Appellant's brief at pp. 88-89.) (Emphasis in appellant's brief.)
No error was committed because when Boyd was convicted in 1987, before the effective date of the Alabama Rules of Criminal Procedure, the
“common law in Alabama ... allowed a general verdict of guilty to be returned if any one count or offense in the indictment was sustained by the proof, so long as the sentence pronounced did not impose a greater punishment than that prescribed for one of the offenses charged in the indictment. See Black v. State, 39 Ala.App. 269, 97 So.2d 833 (1957) (upheld general verdict returned on indictment in two counts charging two distinct offenses).”
Knotts v. State, 686 So.2d 431, 462 (Ala.Cr.App.1995), aff'd, Ex parte Knotts, 686 So.2d 486 (Ala.1996).FN10 Other than the fact that Milstead and Boyd each blamed the other for the actual killings, the facts in this case were undisputed. If the jury believed that Boyd killed the Blackmons, he was subject to a conviction for each of the eight counts. Each conviction warranted a death sentence. The sentence pronounced did not impose a greater punishment than that prescribed for one of the offenses charged in the indictment.
FN10. Today, Rule 23.2(c)(1), Ala.R.Crim.P., “requires the jury to specify the particular counts on which it finds the defendant either guilty or not guilty.” Knotts, supra.
Counsel cannot be said to be ineffective for not filing a motion for which there is no legal basis. See Patrick v. State, 680 So.2d 959, 963 (Ala.Cr.App.1996); Hope v. State, 521 So.2d 1383, 1386 (Ala.Cr.App.1988).
Regarding Issue XXVIII Boyd argues:
“During the deliberations at Mr. Boyd's capital trial, the jury returned a note to the trial court stating ‘Could we have distinction between murder and capital murder?’... The Court refused to answer the question, and, instead, indicated that the terms had already been defined and that the jury should use its own recollection of the definitions to determine the distinction.... Without receiving any further instruction, the jury returned with a verdict of guilty as charged in the indictment. The jury was allowed to return a guilty verdict of capital murder even though it had indicated it did not understand the charge of capital murder.”
(Appellant's brief at p. 93.) (Emphasis in appellant's brief.) The substantive claim was decided adversely to Boyd on direct appeal. We stated:
“Furthermore, we do not find the trial judge's refusal to give additional instructions to the jury on murder and capital murder to be error, since the trial judge thoroughly instructed the jury on these matters in his oral charge to them. There is no basis of error to reversal shown here.”
542 So.2d 1247, 1259 (Ala.Cr.App.1988).
Counsel cannot be said to be ineffective for not filing a motion for which there is no legal basis. See Patrick v. State, 680 So.2d 959, 963 (Ala.Cr.App.1996); Hope v. State, 521 So.2d 1383, 1386 (Ala.Cr.App.1988).
Boyd has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, regarding Issue XXVIII and Issue XXIV. Nor has Boyd shown regarding these issues that there is a reasonable probability that, if trial counsel had made these objections, the result of the trial would have been different.
Other claims presented as ineffective assistance of counsel under I.M. are based on mere assertions and conclusions and have been insufficiently pleaded in that they lack the necessary specificity. Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P.
I.N. and XXI.
Boyd claims that his conviction was obtained based on the uncorroborated testimony of his accomplice, Robert Milstead and that his counsel's failure to object to Milstead's testimony on that basis constituted ineffective assistance.
The substantive claim is procedurally barred because it could have been, but was not, raised and addressed at trial and on direct appeal. Rule 32.2(a)(3), and (5), Ala. R.Crim. P.
[52] Boyd contends that his trial attorneys were ineffective because, he says, they did not object to the lack of corroborating evidence. According to Boyd:
“Trial counsel failed to object adequately to the absence of evidence corroborating the testimony of accomplice Robert Milstead.... Counsel believed the codefendant was lying ... but did not protect their client or the record regarding his testimony or the evidence that supposedly corroborated it. The prosecution did not present the kind of evidence necessary under Alabama and federal law to legally corroborate the self-serving testimony of the codefendant. Had they done so, a capital conviction could not have been sufficient for a finding of guilt on all the elements of the offense.... Counsel were ineffective for their failure to make the appropriate motions. A new trial is required.”
(Appellant's brief at p. 23.)
Boyd further argues:
“The only evidence presented to indicate that petitioner was the actual killer of both the Blackmons was the dubious testimony offered by is codefendant, Robert Milstead.... The evidence to support the state's theory of robbery, kidnaping, and intentional murder all came from this witness whose motive to save his own skin was undeniably strong.... Subtracting Robert Milstead's testimony from the state's case against Glenn Boyd leaves almost nothing.”
(Appellant's brief at pp. 79-80.)
“ ‘ “The test for determining whether there is sufficient corroboration of the testimony of an accomplice consists of eliminating the testimony given by the accomplice and examining the remaining evidence to determine if there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense.” Tarver v. State, 500 So.2d 1232 (Ala.Cr.App.1986), affirmed, 500 So.2d 1256 (Ala.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987), citing, Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973) (emphasis supplied).’ Garrison v. State, 520 So.2d 219 (Ala.Cr.App.1987) (wherein accomplice testimony was sufficiently corroborated by a witness who testified that, prior to the incident, he overheard a conversation in which the appellant discussed plans for a burglary).”
Patterson v. State, 538 So.2d 44, 45 (Ala.Cr.App.1988).
The testimony of Kenny Surrett was sufficient corroboration of Milstead's testimony to connect Boyd to the offense. Surrett testified
“that he is a friend of the appellant and grew up with him. He stated that he was with the appellant and Milstead the night before the murders took place. Surrett saw a silver .25 caliber gun and a .32 caliber gun in the appellant's car.
“On March 27, 1986, Surrett went by the appellant's house to talk to him about some money the appellant owed him. When Surrett arrived, the appellant came out of the bathroom and said he could not believe how cold-blooded he was.
“Then the appellant said he had something to tell Surrett. He said he and Milstead went to the Blackmons' house on the morning in question. The appellant took Mr. Blackmon to the bank and Mr. Blackmon got some money. Milstead and the appellant then took the Blackmons to the river. The appellant said Milstead hit Mrs. Blackmon in the nose and then shot her a couple of times. Later, the two broke Mrs. Blackmon's back and put her in a barrel which they pushed into the river.
Z “The appellant said he hit Mr. Blackmon with a stick and then shot him. They put Mr. Blackmon's body into the trunk of his car and drove it into the river.
“After the appellant finished talking, Surrett noticed some money on a table. The appellant said he got the money from Mr. Blackmon and paid Surrett the money he owned him.
“The next week, the appellant called Surrett and asked him if he had heard the news about the Blackmons being missing. The appellant asked Surrett if he believed his story now. Surrett told the appellant that he did not want to hear it, and it was not something to joke about.
“The next day, Surrett was with the appellant at the barber shop. The appellant made a joke that the Blackmons might be at the bottom of the river. The following day, Surrett told the appellant that he had told somebody about what the appellant told him. The appellant was mad.”
Boyd v. State, 542 So.2d 1247, 1252-53 (Ala.Cr.App.1988).
Counsel cannot be said to be ineffective for not filing a motion for which there is no legal basis. See Patrick v. State, 680 So.2d 959, 963 (Ala.Cr.App.1996); Hope v. State, 521 So.2d 1383, 1386 (Ala.Cr.App.1988).
Boyd has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown regarding this claim that there is a reasonable probability that, if trial counsel had made this objection, the result of the trial would have been different.
I.O.
Boyd contends that trial counsel failed to advocate on his behalf adequately at the penalty phase. According to Boyd:
“In addition to failing to present available and compelling mitigating evidence at the penalty phase ... counsel otherwise failed to represent their client adequately. They provided otherwise inadmissible evidence about petitioner's criminal history to the sentencing jury and judge.... Defense counsel's ‘closing argument’ consisted of fifteen words.... Counsel failed to object to improper conduct and argument by the state. See [Issues] I.D, I.E, I.H, I.I, I.L, I.Q, supra.
“These and the other deficiencies recounted in this brief rendered counsel's penalty phase representation wholly inadequate.... Counsel's failures prejudiced Mr. Boyd before the sentencing court and before the jury in that proper advocacy would have resulted in a unanimous jury recommendation of life-without-parole for petitioner.”
(Appellant's brief at pp. 23-24.) This claim amounts to an assertion that the cumulative effect of other alleged errors during the penalty phase rendered trial counsel ineffective. We have reviewed these other claims and found them to be insufficiently pleaded or not error.
Moreover, trial counsel called four witnesses at the penalty phase of Boyd's trial. See I.A. After hearing the evidence, the jury recommended a sentence of life imprisonment without parole. At the Rule 32 hearing much evidence was presented concerning Boyd's childhood. However, as stated in Part I.A. of this opinion, there were sufficient aggravating circumstances to justify overriding the jury's recommendation despite this evidence.
Boyd has not shown that trial counsel was deficient or that he was prejudiced by counsel's performance. Nor has he shown that counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had performed differently his sentence would have been different.
I.P.
Boyd contends that trial counsel failed to present a strategy to save his life and that counsel otherwise failed to properly represent him at the sentencing hearing before the trial court. According to Boyd:
“[trial counsel] failed to present any mitigation, including evidence of the serious abuse he suffered as a child; the neglect of his parents; the chaotic and dysfunctional homes in which he was reared; the alcoholism in his home; the poverty, inadequate food, and lack of medical care; the effect of all of this on his development; or the evidence of those in the community who worried about him as he grew up.... They neither sought nor presented evidence pertaining to the culpability and background of the codefendant, nor records documenting the family instability, or other evidence that would have supported a case for life imprisonment without parole. They did not present any expert testimony. Abundant evidence was available for the trial court's consideration but was not discovered or used.... Counsel's dropping the ball after the jury's recommendation and their total failure to investigate, explore, prepare and present any of this evidence was grossly ineffective.... This Court must reverse the court below and require a new judge [for] sentencing in this case.
“These were not the only deficiencies in counsel's performance. Trial counsel also failed to make effective arguments before the sentencing court as to why it should accept the jury's verdict. Counsel failed to object to the admission into evidence of a prejudicial presentence investigation report which included inadmissible hearsay, the fruits of an uncounseled interview with petitioner, a recounting of the effects of the crime on the victims' family, juvenile arrests, the personal commentary of the author, and the victim's families' desire for death.... Trial counsel failed to object to the use of improper and invalid convictions to negate the mitigating circumstance of not significant prior criminal history....
“Finally, trial counsel failed to object to the impropriety of the trial court's rejecting the jury life verdict in this case on equal protection, due process, and Eighth Amendment grounds.... They failed to object to the court's improper reliance on invalid aggravating circumstances, including a lack of sufficient evidence, double counting, and the vagueness of the heinousness factor. They did not contest the trial court's rejection of established mitigating circumstances and made no inquiry into possible bias by the trial judge....
“Trial counsel's performance was grossly deficient at the most important stage of these proceedings. Had they advocated properly, William Glenn Boyd would not have been sentenced to death....”
(Appellant's brief at pp. 25-27.)
Trial counsel stated that the defense strategy was to humanize Boyd for the jury. Four witnesses were presented during the penalty phase in this effort. For the reasons stated in Part I.A of this opinion, we do not find counsel's efforts to be ineffective. Moreover, § 13A-5-47, Ala.Code 1975, governs the determination of sentence by the trial court. Section 13A-5-47, Ala.Code 1975, does not provide for the presentation of additional mitigation evidence at sentencing by the trial court. Therefore, trial counsel did not err in failing to do so.
A presentence report is entirely hearsay but admissible under § 13A-5-47, Ala.Code 1975. Dill v. State, 600 So.2d 343 (Ala.Cr.App.1991), aff'd, 600 So.2d 372 (Ala.1992). Therefore, trial counsel did not err in failing to object to the presentence report.
Other assertions of ineffective assistance of counsel under the heading I.P. in the appellant's brief to this court are based on mere assertions and conclusions and have been insufficiently pleaded without the necessary specificity. Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P.
Boyd has not shown that trial counsel's performance was deficient or that he was prejudiced by counsel's deficient performance. Nor has he shown that counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown regarding these claims that there is a reasonable probability that, if trial counsel had objected on this ground, the result of the trial would have been different.
I.Q. and XXXIII.
Boyd claims that his sentence of death was imposed pursuant to a pattern of racial bias against defendants who are convicted of killing white victims and that his counsel was ineffective for failing to object on that basis.
The substantive claim is procedurally barred because it could have been, but was not, raised and addressed at trial and on direct appeal. Rule 32.2(a)(3) and (5), Ala.R.Crim.P.
Boyd contends that his trial attorneys were ineffective because, he says, they did not properly object on the basis that the imposition of the death penalty in this case reflected a pattern evincing racial bias. Boyd, a white male, was sentenced to death for killing two white people. According to Boyd:
“Petitioner was sentenced to death for the killing of two prominent white [Calhoun] County citizens. This imposition of a death sentence was pursuant to a pattern of racial bias that characterizes the administration of the death penalty in [Calhoun] County and in Alabama as a whole.... At no point did counsel attempt to challenge the seeking of the death penalty in this case based on the prominence of the victims, nor did they confront the evidence right before them of racially biased decision-making in the elimination of virtually every single African American who was qualified for jury service.... Counsel's failure to object to the racially discriminatory use of the death penalty in petitioner's case deprived him of the effective assistance of counsel.... ”
(Appellant's brief at p. 28.)
Boyd argues:
“Petitioner was sentenced pursuant to a pattern of racial bias in Alabama generally and in Calhoun County in particular. Of the six people who have been sentenced to death to date in the county in the modern era, all have been sentenced for killing whites. This is so despite the fact the African Americans account for over half the victims of homicide in Calhoun County. The discretion of the district attorney in choosing which cases to prosecute as death cases-as well as the discretion of the sentencing judge in determining which cases to override-were influenced by concerns of the victims' race.... It was error for the trial court to dismiss this critical issue from consideration in this case.”
(Appellant's brief at p. 108.)(Emphasis in Appellant's brief; footnote omitted.) Boyd submitted as exhibits the strike list and the venire list showing each juror's race. (March 5, 1998, Supp.record, Vol.2, C.R.265-278.) As exhibit H to his “Evidentiary Proffer regarding Rule 32 Claims Dismissed by the Trial Court,” Boyd provided the affidavit of Michael L. Radelet, a professor in the department of sociology and in the Center for the Study of Criminal Law and Criminology at the University of Florida. Radelet's affidavit presents statistics suggesting that “death sentences in Alabama are more likely when whites are killed than when blacks are killed.” (March 5, 1998, Supp.record, Vol.1, C.R.115.) However, Radelet concedes in his affidavit that his data is inconclusive because more research is required to take into account legally relevant factors. Boyd presented nothing to support his allegation that Calhoun County, in particular, implemented the death penalty in a discriminatory fashion.
Moreover, we agree with the following assertion made by the State: “To prevail on an equal protection claim, which Boyd seems to be contending, he must prove that the decision makers in his case acted with discriminatory purpose. McCleskey v. Kemp, 481 U.S. 279, 291-300, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).” Appellee's brief at p. 66. Boyd has not offered such proof.
This claim is barred because it has been insufficiently pleaded. The claim is based on mere allegations and conclusions. Therefore, Boyd has not met either the burden of pleading imposed by Rule 32.3 or the specificity requirements of Rule 32.6(b), Ala.R.Crim.P. Boyd has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had objected on this ground, the result of the trial would have been different.
I.R. and XXXV.
Boyd claims that electrocution, the means by which the death penalty is carried out in Alabama, is cruel and unusual punishment. He also argues that his trial counsel was ineffective for failing to raise this issue. The substantive claim is procedurally barred because it could have been, but was not, raised and addressed at trial and on direct appeal. Rule 32.2(a)(3), and (5), Ala.R.Crim.P.
Boyd contends that his trial attorneys were ineffective because they did not properly object to the use of electrocution in Alabama as a means of imposing the death penalty as cruel and unusual punishment. According to Boyd:
“The State of Alabama seeks to execute William Glenn Boyd by subjecting him to torture, suffering and mutilation in its electric chair.... Mr. Boyd's former counsel failed to raise this issue at any level of the proceedings. Their failure to do so deprived petitioner of competent representation; prejudice lies in the fact that he will be subject to torture if executed in this state's machinery....”
(Appellant's brief at p. 28.)
We agree with the State:
“Both Alabama state and federal courts have consistently held that death by electrocution does not constitute cruel and unusual punishment. Sullivan v. Dugger, 721 F.2d 719 (11th Cir.1983) ... Lindsey v. Smith, 820 F.2d 1137, 1155 (11th Cir.1987), ... Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), ... Lowenfield v. Phelps, 817 F.2d 285 (5th Cir.1987), ... Ex parte Harrell, 470 So.2d 1309 (Ala.1985); Williams v. State, 627 So.2d 985 (Ala.Cr.App.1991), ... Stephens v. State, 580 So.2d 11 (Ala.Cr.App.1990), ... Jackson v. State, 516 So.2d 726 (Ala.Cr.App.1985), ... Wright v. State, 494 So.2d 726 (Ala.Cr.App.1985), ...”
Appellee's brief at p. 67. Moreover, we agree with the State's contention that “the claim that Alabama utilizes ineffective procedures and outdated equipment has previously been litigated and rejected. Thomas v. Jones, 742 F.Supp. 598, 602 (S.D.Ala.1990). See also Ritter v. Smith, 568 F.Supp. 1499 (S.D.Ala.1983), reasoning adopted and aff'd in relevant part, 726 F.2d 1505, 1519 (11th Cir.).” (Appellee's brief at p. 68.)
Based on the current state of the law, Boyd would not have prevailed on these claims had his trial counsel objected. Boyd has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had made this objection the result of the trial would have been different.
I.S.
Boyd contends that trial counsel failed to properly prepare, investigate or pursue an effective defense on his behalf. Other than Boyd's reference to substantive issues XV, XVI, and XVII, this claim consists of a list of the “plethora of errors regarding the presentation of the defense case individually and collectively [that] denied Mr. Boyd the effective assistance of trial counsel.” (Appellant's brief at p. 31.)
“This ‘grocery list’ of counsel's alleged failures is totally useless because it represents only legal conclusions unsupported by specific facts.... ‘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 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.’ ”
Hope v. State, 521 So.2d 1383, 1389 (Ala.Cr.App.1988) (quoting Moore v. State, 502 So.2d 819, 820 (Ala.1986)).
Boyd argues in issue XV of his brief that the police search of his car was illegal. Boyd concedes that the Alabama Supreme Court addressed this issue adversely to him on direct appeal. Ex parte Boyd, 542 So.2d 1276 (Ala.1989).
Boyd argues in issue XVI of his brief that the introduction at trial of what he says were highly inflammatory and prejudicial photographs of the victims' bodies violated his rights. Boyd concedes in this argument that “[a]t trial, defense counsel objected strenuously to their admission.... Nevertheless, the trial court admitted the evidence.” (Appellant's brief at page 67.) Therefore, Boyd has not shown trial counsel's performance to be deficient in this regard.
Boyd argues in issue XVII of his brief that his conviction and sentence rested upon improper emotional appeals to the jury by continual references to the suffering of the victims' families. There is no merit to this claim of ineffectiveness of trial counsel because 1) there was overwhelming evidence of Boyd's guilt; 2) the jury recommendation of life imprisonment without parole was the least severe option available; 3) this court's independent review of the implementation of the death penalty on direct appeal disclosed no errors and no suggestion that the sentence was “imposed under the influence of passion, prejudice, or other arbitrary factor”. Boyd v. State, 542 So.2d 1247, 1260 (Ala.Cr.App.1988). Boyd has not shown that counsel's performance was deficient or that he was prejudiced by counsel's performance. Nor has Boyd shown that trial counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had made this objection, the result of the trial would have been different.
I.T.
Boyd contends that his counsel failed to adequately object to the absence of meaningful appellate review of death penalty cases in the state of Alabama. According to Boyd:
“... the appellate courts of our state have neither articulated nor followed a system of meaningful appellate review in death penalty cases, particularly where a jury has first recommended life without parole.... With all due respect, petitioner submits that in his case in particular, the appellate opinions indicate little more than perfunctory recitation of the statutory requirements in affirming sentence ...
“Petitioner's counsel did not object to this inadequate system of review at any level of the process. He also did not adequately contest the failure of the appellate courts to consider his motion to supplement the record on appeal.... Counsel's failures cost Mr. Boyd a meaningful appeal and the likelihood of reversal of his capital conviction and sentence of death. Petitioner was thus severely prejudiced by counsel's deficient representation....”
(Appellant's brief at page 32-3.)
We agree with the State's assertion that “[t]he United States Supreme Court has reviewed Alabama's sentencing statute, and has found it to be constitutional. Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995).” (Appellee's brief at p. 70.) Boyd has not shown that trial counsel's performance in this regard was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had made this objection, the result of the trial would have been different.
Boyd contends that trial counsel did not adequately contest the failure of the appellate courts to consider his motion to supplement the record on appeal. The basis of this motion was the omission from the record on direct appeal of that portion of the record showing trial counsel's objection to the trial court's refusal to give additional instructions to the jury on murder and capital murder. On direct appeal we stated that the record did not reflect that the issue had been properly preserved for appellate review. However, in addition, we stated:
“Furthermore, we do not find the trial judge's refusal to give additional instructions to the jury on murder and capital murder to be error, since the trial judge thoroughly instructed the jury on these matters in his oral charge to them. There is no basis of error to reversal shown here.”
542 So.2d at 1259. Boyd would not have prevailed on this claim had trial counsel objected. Thus Boyd has not shown that he was prejudiced by trial counsel's performance. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had made this objection, the result of the trial would have been different.
Boyd contends that appellate counsel failed to provide effective assistance of counsel on appeal to the Alabama Court of Criminal Appeals and the Alabama Supreme Court. Boyd was represented on appeal by Steve Levinson, one of his trial counsel. Boyd's argument consists of a mere recitation of issues he says appellate counsel failed to pursue on direct appeal and the allegation that appellate counsel was too inexperienced to effectively handle Boyd's case.
This claim is barred because it has been insufficiently pleaded. The claim is based on mere allegations and conclusions. Therefore, Boyd has not met either his burden of pleading under Rule 32.3 or the specificity requirements of Rule 32.6(b), Ala.R.Crim.P. Boyd has not shown that trial counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had made objections, the result of the trial would have been different.
Moreover, § 13A-5-54, Ala.Code 1975, provides:
“Each person indicted for an offense under the provisions of this article who is not able to afford legal counsel must be provided with court appointed counsel having no less than five years' prior experience in the active practice of criminal law.”
Levinson testified at the Rule 32 hearing that he was licensed to practice law in 1978 and that he was appointed to Boyd's case in 1986. He stated that he was a sole practitioner who had never tried a murder case or a capital murder case, but that his practice included criminal work. He stated that Grant Paris was appointed as co-counsel to Levinson. Paris had the requisite five years experience in criminal law, but had not handled a capital case before. Mannon Bankson was also appointed, but only to assist Levinson and Paris because he did not have the required five years experience in criminal work. Vol.16, R. 102-03. Levinson and Michael Allsup were appointed to represent Boyd on appeal. During the appeal process, Allsup was suspended from the practice of law because he failed to fulfill continuing legal education requirements of the Alabama State Bar. Levinson prepared Boyd's appeal. We see no error with Boyd's representation at trial or on appeal.
At the Rule 32 hearing, Levinson testified that on appeal he “focused on the issues that [he] thought were most beneficial to [Boyd].” (Vol.16, R. 138.) We agree with the State's assertion that the United States Supreme Court has held that this practice is acceptable.
“[E]xperienced advocates have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Selecting the most promising issues for review has assumed a greater importance in an era when the time for oral argument is strictly limited in most courts and when page limits on briefs are widely imposed.”
Jones v. Barnes, 463 U.S. 745, 746, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
As stated above, this issue is insufficiently pleaded.
I.V.
Boyd contends that he was denied effective assistance of trial and appellate counsel because of the extremely low compensation provided by the State of Alabama for the defense attorneys representing capital defendants. He argues that the present payment scheme provides “a disincentive to do work necessary to defend their client properly.” (Appellant's brief at p. 38.) (Emphasis in appellant's brief.) In support of this claim, Levinson testified at the Rule 32 hearing that representing Boyd was a financial hardship that resulted in his losing money. He further testified that the payment that he did receive was insignificant. (Vol.16, R. 109.) According to Boyd: “Failing to pay his lawyers adequately for litigating one of the most difficult and trying cases violated various guarantees under the Alabama and federal constitutions, including the promise of equal protection for the indigent, due process of law, and effective representation, and constitutes a taking of the lawyer's property without just compensation.” (Appellant's brief at p. 38.)
Although included as a claim alleging ineffective assistance of counsel, this claim does not challenge the effectiveness of counsel. Boyd argues that because of low funding counsel had no incentive to perform. Boyd does not allege an instance where counsel did not perform effectively because of funding. Therefore, this claim is precluded from review in a Rule 32 petition because it could have been, but was not, raised and addressed at trial and on direct appeal. Rule 32.2(a)(3), and (5), Ala.R.Crim.P.
However, to the extent, if any, that the argument can be construed as asserting that Boyd's counsel was ineffective because of limited funds, we conclude that there has been no specific assertion that Boyd's counsel failed to provide effective assistance due to the lack of State provided funds. Therefore, Boyd has not met either his burden of pleading imposed by Rule 32.3 or the specificity requirements of Rule 32.6(b), Ala.R.Crim.P. Boyd has not shown that because of low funding trial counsel's performance was outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Nor has Boyd shown that there is a reasonable probability that, if trial counsel had been paid more for defending Boyd, the result of the trial would have been different.
PRECLUDED SUBSTANTIVE CLAIMS
The following claims are procedurally precluded because they could have been, but were not, raised and addressed at trial and on direct appeal. Rules 32.2(a)(3), and (5), Ala. R.Crim. P. The Roman numerals correspond to the number assigned that argument in Boyd's brief to this court.
II. Boyd's counsel was too inexperienced to try a capital case.
VIII. Boyd was deprived of due process, equal protection, and a fair trial and sentencing proceeding because the trial court refused to provide funds for expert assistance.
XVIII. The trial court erred in allowing the State to challenge Boyd's subpoenaed witnesses and in requiring him to disclose before trial what facts he hoped to gain from each witness.
XIX. The prosecution was allowed to present inadmissible evidence portraying Boyd as a “bad character” who should be convicted because he had violated the law on occasions other than the murder of the victims.
XX. Boyd was prejudiced by the prosecutor's alleged misconduct during the guilt and sentencing phases of the trial.
XXII. The trial court erred in failing to grant Boyd sufficient time to prepare at the guilt phase and the penalty phase of the trial.
XVIII. The trial court erred in allowing the State to challenge Boyd's subpoenaed witnesses and in requiring him to disclose before trial what facts he hoped to gain from each witness.
XXIII. The trial court's jury instructions at the conclusion of the guilt phase of the trial were erroneous.
XXV. The evidence was insufficient to sustain a conviction for the capital murder of Evelyn Blackmon.
XXVI. There was insufficient evidence to prove that Boyd kidnapped the victims with the intent to terrorize them.
XXIX. The trial court erred in considering a presentence report that contained impermissible material.
XXX. The trial court considered aggravating circumstances that were not applicable in this case.
XXXI. The trial court erred in failing to find nonstatutory mitigating circumstances based on evidence offered at the penalty phase.
XXXII. The trial court erred in imposing a sentence of death after the jury recommended a sentence of life imprisonment without parole.
XXXIV. The Alabama death penalty statute violates the Sixth, Eighth, and Fourteenth Amendments and the Alabama Constitution by failing to provide meaningful appellate review for those under sentence of death.
The following claims are procedurally precluded because they could have been, but were not, raised on direct appeal. Rule 32.2(a)(5), Ala. R.Crim. P.
IX. Boyd was deprived of independent psychiatric assistance and was sent against his will to the Taylor Hardin Medical Facility, a state facility.
X. Boyd's right to a fair trial by an impartial jury was violated by the trial court's failure to permit individually sequestered voir dire of prospective jurors.
XI. Boyd was deprived of an impartial jury by the failure of the trial court to grant his challenges for cause during jury selection.
The following claims are procedurally precluded because they were raised and addressed at trial and could have been, but were not, raised on direct appeal. Rule 32.2(a)(2) and (a)(5), Ala. R.Crim. P.
IV. Boyd was denied his right to jury pools representative of the community.
VII. The trial court erred in failing to grant a change in venue.
XIV. The trial court erred in admitting out-of-court statements made by Boyd.
XXII. The trial court erred in failing to grant Boyd sufficient time to prepare at the guilt and penalty phases of the trial.
The following claim is procedurally precluded because it was or could have been raised and addressed at trial, and it could have been, but was not, raised on direct appeal. Rule 32.2(a)(2), (a)(3), (a)(5), Ala. R.Crim. P.
XVI. The trial court erred in admitting highly inflammatory and prejudicial photographs of the deceased victims.
The following claim is procedurally precluded because it was raised or addressed on direct appeal. Rule 32.2(a)(4), Ala.R.Crim. P.
VI. The circuit court of Calhoun County was without jurisdiction to try Boyd for the capital murder of Evelyn Blackmon because Evelyn Blackmon was killed in St.Clair County. See, Boyd v. State, 542 So.2d 1247, 1257 (Ala.Cr.App.1988).
The following claim is procedurally precluded because it was raised or addressed at trial and was raised or addressed on direct appeal. Rule 32.2(a)(2), and (a)(4), Ala.R.Crim.P.
XV. Boyd's constitutional rights were violated by the admission of evidence he alleges was illegally seized from his automobile.
The following claim is procedurally precluded because it could have been but was not raised at trial, and was raised or addressed on direct appeal. Rule 32.2(a)(3), and (a)(4), Ala.R.Crim.P.
XXVIII. The trial court failed to define for the jury the distinction between murder and capital murder when the jury sought an explanation during deliberations.
ISSUES COGNIZABLE IN RULE 32 PETITION
XXXVI.
Boyd contends that the court that heard his Rule 32 petition committed reversible error in dismissing claims that are clearly cognizable in a Rule 32 postconviction proceeding. According to Boyd, these claims included: claims based on newly discovered evidence, which could not have been raised at trial; claims based on juror misconduct; claims based on the state's withholding exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and claims based on the allegation that exculpatory evidence had been discovered from other witnesses. The circuit court refused to hear testimony at the Rule 32 hearing on any claim other than those alleging ineffective assistance of counsel, holding that all other issues were precluded and were subject to summary dismissal. Moreover, the trial court refused to allow Boyd to proffer expected testimony from these witnesses on these claims.FN11
FN11. In a post-hearing motion to reconsider, Boyd submitted proffers and affidavits from witnesses to support his claims.
Under Rule 32.1, Ala.R.Crim.P., subject to the preclusions in Rule 32.2, a remedy is afforded a defendant when the grounds supporting the requested relief are based on newly discovered facts (1) that were not known by petitioner or petitioner's counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence; (2) that were not merely cumulative to other facts that were known; (3) that were not merely amounting to impeachment evidence; (4) that if they had been known at the time of trial or of sentencing, the result probably would have been different; and (5) that establish that petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence that petitioner received. Rule 32.1(e)(1) through (5), Ala.R.Crim.P. Rule 32.3 places the burden on the defendant to plead and prove facts necessary to obtain relief. Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief. Rule 32.6(b). When this is done, the burden shifts to the state to plead preclusionary grounds meriting summary dismissal.FN12 Rule 32.3. The burden then shifts to the petitioner to disprove a preclusionary ground plead by the state.
FN12. However, if the State fails to dispute a factual allegation contained in the petition, then that allegation is taken as true.
We agree that the above assertions are not necessarily precluded by Rule 32.2(a), Ala.R.Crim.P. We must evaluate the record to determine whether the trial court's summary dismissal of these claims requires a remand for the circuit court to take additional testimony. The substance of Boyd's claims is presented in the following issues.
XXXVII.
Boyd contends that improper conduct by the jurors deprived him of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights as well as rights guaranteed by Alabama law. He argues that the reliability of the verdict in his case was severely compromised by the consideration of extraneous evidence by several jurors.
E.W.W., an alternate juror, was a member of the Calhoun County volunteer fire department when the victims disappeared. Juror W. was involved in the search for victims in this case, had been to the crime scene, had seen some of the evidence, and was generally knowledgeable about the case. According to Boyd, Juror W. “shared his knowledge with other jurors once the case began.” (Appellant's brief at p. 117.) Also according to Boyd, juror B.M. impermissibly consulted a dictionary during the trial. Boyd argues that “jurors did consider extraneous evidence-about the crime and about legal issues-in deciding Mr. Boyd's fate, and that cannot be countenanced by this or any other court.... Boyd's capital conviction and death sentence cannot stand in light of such evidence.” (Appellant's brief at p. 119.)
Boyd filed his Rule 32 petition on July 5, 1990. The above issues were not raised in the petition. The trial court summarily dismissed the petition. On December 4, 1990, the circuit court heard Boyd's motion to reconsider the summary dismissal of the petition. The State conceded at this hearing that Boyd was entitled to be heard on his claims of ineffective assistance of counsel and any claims alleging newly discovered evidence. (Vol.16, R. 4.) At the conclusion of the hearing, the trial court stated that it would take the motion under advisement and “try to get an order out, if possible, by the end of the week.” The court stated that if the motion to reconsider was granted and the petition was reinstated, pending discovery motions would be ruled on. The circuit court also noted that an amended Rule 32 petition had been filed and would be taken up if it granted the motion to reconsider. The motion to amend was filed on November 30, 1990, and did not include the above issues. Monday April 1, 1991, at a hearing on the discovery motions, the judge stated that he “thought [he] had entered an order setting aside [his] previous order dismissing the petition” but the record reflected that he had not. (Vol.16, R. 11.) The circuit court stated in regard to granting the motion to reconsider:
“I intended to do so. I was going to set that order [dismissing the petition] aside and allow the petitioner to go forward on the grounds of ineffective assistance of counsel only, and I'll try to work on an order and get that out in the near future. I thought I had already done that, but not having done that, that's my intention in this point.”
(Vol.16, R. 12.) Boyd objected “for the record” to the dismissal of those of his claims other than ineffective assistance of counsel. (Vol.16, R. 25.) Boyd filed a second amended petition on July 8, 1994, in which he asserted the above issues in the following fashion:
“110. Mr. Boyd was deprived of a reliable verdict by the fact that members of his jury had extraneous information about the victims and the crime scene and other aspects of this case.
“111. Members of the jury also had connections with law enforcement and investigation efforts in this case that rendered them unfit to sit on petitioner's jury.
“112. The jurors were not forthcoming with this information before they sat in judgment on petitioner's life and liberty.”
(Vol.3, C.R.418.) These claims were not presented as newly discovered evidence. There was not even the bare assertion in the petition that these claims were newly discovered evidence. The State filed a motion for partial dismissal in which it addressed certain claims of ineffective assistance of counsel as being insufficiently pleaded. (Vol.3, C.R.439.) The State also filed an answer to Boyd's second amended petition in which it alleged that the above claims were procedurally precluded by Rule 32.2(a)(3) and (a)(5), or in the alternative, should be denied. The day before the Rule 32 hearing the circuit court issued a written order correctly dismissing these claims as precluded by Rule 32.2(a) and subject to summary dismissal pursuant to Rule 32.7(d). Immediately preceding the Rule 32 hearing, the trial court conducted a prehearing conference. At this hearing the presiding judge asked what witnesses the defense was going to call. Boyd's counsel stated that several jurors would be called, because “We have a claim in here that there was some misconduct on the part of the jurors.” (Vol.16, R. 94.) The circuit court stated that it would not hear arguments concerning this issue because it had dismissed that issue by written order the previous day. (Vol.16, R. 95.)
These issues were not pleaded as newly discovered facts and were therefore subject to the procedural bar pleaded by the State and accepted by the circuit court. The circuit court's ruling finding this claim precluded on procedural grounds was not error.
Having received the circuit court's order at the prehearing conference, Boyd filed a motion to reconsider. This motion did not allege the claims presented newly discovered facts.FN13 This motion was properly denied.
FN13. Boyd did plead that, “Mr. Williams was not forthcoming with this information during voir dire.” (Vol.3, R. 518.) However, this assertion is insufficient to support a claim of newly discovered facts.
During the hearing Boyd requested that the circuit court hear his proffer through the witness as to what the testimony would have been so that there would be a full record for appeal. The trial court denied the request. (Vol.16, R. 126.) Boyd alleged that this was error. Because the issue had been procedurally precluded it was not properly before the circuit court. Therefore, the trial court did not error in refusing to hear the proffer.
XXXVIII.
Boyd contends on appeal that it was reversible error for the State to withhold evidence that he says was exculpatory as to guilt and punishment. According to Boyd, the State withheld, after request by the defense, the lunacy report on Robert Milstead generated by the staff at the Taylor Hardin Secure Medical Facility. Boyd argues that this report was discoverable Brady material and that refusing to disclose it was clearly error. According to Boyd, the report revealed that Milstead was in touch with reality and that he suffered from adult antisocial personality disorder. Both of these findings, according to Boyd, would have led the jurors to see Milstead as an adult with strong criminal tendencies and not as a young innocent follower of Boyd as he portrayed himself on the witness stand, and it would have been important for jurors to know that mental disease did not diminish Milstead's criminal intent or responsibility. Also, according to Boyd, this evidence would have been critical for the judge to have and the defense to exploit at sentencing.
Boyd also argues that in addition to the lunacy report, State investigators had information that Tony Gathye, a banker seeking to collect on a debt, had gone to Boyd's home shortly after the murders and had seen Milstead and Boyd together. It was Gaythe's opinion that Milstead was so irritated and angry, that Boyd suggested that Gathye leave their presence. Gathye was interviewed by the police at the time about his knowledge and impressions. According to Boyd: “Combined with the undisclosed lunacy report, Tony Gathye's commentary would have been critical to establishing that it was Milstead and not petitioner who was the angry, impulsive actor between the two.” (Appellant's brief at page 122.)
This claim was presented to the circuit court in Boyd's second motion to amend his petition as follows:
“70. The prosecution deliberately withheld information about deals made with key witnesses such as Robert Milstead and Kenny Surrett and other information about witnesses and otherwise concealed material necessary to an adequate defense and mitigation case in violation of the trial court's discovery orders and the United States Constitution. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). This information includes but is not limited to the Lunacy Commissions Report on codefendant Robert Milstead to which petitioner sought access prior to trial (R. 155), the full statements of witnesses such as Sharon Johnson and Kenny Surrett, the identity of potentially exculpatory witnesses such as Tony Gathye, and other information.”
(Vol.3, C.R.409.)
The written order denying this claim stated that it was precluded under Rule 32.2(a) and was subject to summary dismissal under Rule 32.7(d), Ala.R.Crim.P., because it was not sufficiently specific. (Vol.3, C.R.498-99.) Boyd did not plead in his petition that this claim was based on newly discovered evidence and he did not allege how the evidence was exculpatory. Based on the pleading before the court, we find no error with this ruling. Therefore, the trial court correctly ruled that this claim was precluded and it was insufficiently pleaded to entitle Boyd to relief. See, XXXVII. We note that at the prehearing conference when the circuit court refused to hear this claim defense counsel stated that “Rule 32 does recognize newly discovered evidence as a claim that is cognizable under Rule 32.” (Vol.16, R. 93.) However, prior to this time, the claim had not been couched as newly discovered evidence.
XXXIX.
Boyd contends on appeal that he is entitled to a new trial because, he says, newly discovered evidence shows both 1) that the key evidence used to convict him was perjured, and 2) that the trial court was biased against him.
XXXIX-A.
Boyd contends on appeal that the testimony given by codefendant Robert Milstead was perjured. According to Boyd, Milstead's testimony at trial was that Boyd was the leader of the two and that Boyd murdered Evelyn Blackmon and Fred Blackmon. Also according to Milstead, Boyd struck the victims with sticks, tried to break Evelyn Blackmon's back with an ax, and made a sexually provocative comment about Evelyn Blackmon during the incident. According to Boyd, it was Milstead's testimony that provided evidence that the murders were heinous, atrocious, or cruel.
In his second amended Rule 32 petition Boyd asserted the following in paragraph 73 as prosecutorial misconduct: “The prosecution made use of testimony by critical witnesses such as Robert Milstead and Kenny Surrett which it knew or should have known was false.” (Vol.3, C.R.410.) At the prehearing hearing, defense counsel stated that Robert Milstead was a witness on “a claim in the petition regarding false evidence by Mr. Milstead.” (Vol.16, R. 96.)
This claim was presented to the circuit court as a claim alleging prosecutorial misconduct. It was presented on appeal as the discovery of perjured testimony. Boyd has raised an issue on appeal for the first time. Therefore it is not preserved for review. Wilkerson v. State, 686 So.2d 1266 (Ala.Cr.App.1996).
Moreover, this claim was not pleaded as newly discovered facts. See Part XXXVII.
XXXIX-B.
Boyd contends on appeal that the judge who presided over his trial and sentencing was himself committing crimes at that time and was seeking to avoid detection by the district attorney. Boyd argues that the judge needed to stay in the district attorney's good graces and he was therefore biased against Boyd and unfit to preside over his case. According to Boyd, the judge began committing insurance fraud in the early 1980s and that activity continued for seven years. Boyd states that this judge resigned because he was facing trial in the Alabama Court of the Judiciary. According to Boyd: “Yet given the pervasiveness of his criminal activity over the years and the ‘obvious trail’ he left, he must have feared such prosecution. Thus he had great reason to fear and to please the people who could send him to prison if they discovered him-i.e., the office of the District Attorney of Calhoun County.” (Appellant's brief at page 125.)
In his second amended Rule 32 petition Boyd asserted in paragraph 136 as a ground supporting his claim that it was improper for the trial court to impose a sentence of death upon Boyd: “The trial court's imposition of a death sentence resulted from the personal, political, and legal circumstances and considerations of the trial judge.” (Vol.3, C.R.423.) As presented in his petition and on appeal, this claim is precluded because it was not sufficiently pleaded. Moreover, it did not present newly discovered facts and was subject to preclusion. See Part XXXVII.
XL.
Boyd contends that it was error for the circuit court to exclude his evidence and to refuse to consider the merits of most of the claims he presented in his petition and amended petitions. We have addressed the alleged errors and on each error we have found adversely to Boyd. Further discussion is not warranted.
For the reasons stated above, we conclude that the circuit court properly denied Boyd's Rule 32 petition.
MEMORANDUM OF DECEMBER 18, 1998, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED; APPLICATION FOR REHEARING OVERRULED.
LONG, P.J., and McMILLAN, BASCHAB, and FRY, JJ., concur.
Boyd v. Allen, 592 F.3d 1274 (11th Cir. 2010). (Habeas)
Background: Following affirmance of his convictions for murder during the course of a kidnapping, murder during the course of a robbery, robbery, and kidnapping, and of his sentence of death, 542 So.2d 1276, and following affirmance of denial of state post-conviction relief, 746 So.2d 364, petitioner sought habeas corpus relief. The United States District Court for the Northern District of Alabama, No. 00-02919-CV-CLS-RRA, C. Lynwood Smith, Jr., J., granted petition in part. Petitioner and Commissioner of Alabama Department of Corrections appealed.
Holdings: The Court of Appeals, Marcus, Circuit Judge, held that:
(1) any deficient performance by counsel, in failing to adequately investigate and present mitigating evidence to sentencing jury and trial judge in capital murder trial, did not prejudice petitioner;
(2) evidentiary hearing was not warranted on juror misconduct claim;
(3) evidentiary hearing was not warranted on claim that state knowingly relied on perjured testimony; and
(4) state court's decision that petitioner had not established reasonable probability that any deficiencies of his trial counsel altered outcome of his trial, as required to establish ineffective assistance, was not contrary to or unreasonable application of Strickland.
Affirmed in part, reversed in part, and remanded with instructions. Barkett, Circuit Judge, filed opinion concurring in part and dissenting in part.
MARCUS, Circuit Judge:
In this capital case, the Commissioner of the Alabama Department of Corrections, Richard F. Allen, appeals from the district court's order granting in part William Glenn Boyd's petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. The district court granted relief on Boyd's claim that his trial counsel were constitutionally ineffective during the penalty phase of the trial, holding that trial counsel performed deficiently when they failed to conduct a reasonable investigation of mitigating evidence, particularly concerning his childhood, and, thereafter, failed to present this evidence to the jury and the sentencing judge. Boyd, in turn, cross-appeals from the district court's rejection of three additional claims: first, that some of the jurors impermissibly considered extra-judicial evidence during their deliberations; second, that the State knew its key witness had perjured himself; and, finally, that his trial counsel rendered ineffective assistance by failing to adequately challenge the testimony offered by a co-conspirator, and failed to seek expert assistance.
After thorough review, we affirm in part and reverse in part. Applying the law to the record before us, we conclude that there is no reasonable probability the performance of Boyd's counsel, even if deficient, prejudiced the outcome of the penalty phase of his trial. Moreover, we can discern no merit in Boyd's cross-appeal. Accordingly, we reverse the district court's order granting habeas relief, and remand with instructions to reinstate Boyd's original sentence.
I. Facts and Procedural History
The brutal facts surrounding the kidnaping, robbery, and murder of Fred and Evelyn Blackmon are these. The Blackmons disappeared from their home in Anniston, Alabama, on March 26, 1986. Between 9:30 and 10:00 a.m. that morning, Mr. Blackmon, accompanied by a slender white male with long dark hair, cashed a $5,000 check at the drive-in window of an Anniston branch of the First Alabama Bank, where Mr. Blackmon maintained an account. At around 9:00 p.m. that night, Julie Greenwood, petitioner Boyd's ex-girlfriend and Evelyn Blackmon's twenty-year-old daughter, returned to the Blackmons' house, where she lived, only to discover that Fred and Evelyn Blackmon were missing, along with their black Cadillac Eldorado. Two days later, Julie and her father, Wayne Greenwood, filed a missing person's report with the Anniston Police Department. The Blackmons were never seen alive again.
At about 8:40 a.m. on March 26, 1986, the day the Blackmons disappeared, Anniston Police Officer Ken Murphy was on routine patrol in the Blackmons' neighborhood. He noticed a 1976 white, two-door Chevrolet Camaro illegally parked near the intersection of Sunset and Fairway Drives, a quarter of a mile from the Blackmons' home. The license plate number on the illegally parked vehicle had been issued to William Glenn Boyd.
Soon thereafter, Boyd was arrested on the charge of first degree kidnaping on April 3, 1986. After being advised of his Miranda rights, Boyd signed a waiver-of-rights form and gave a statement to the police concerning the Blackmons' disappearance. In addition, Anniston Police Officers Robertson and Hall impounded Boyd's automobile. The same day, the police arrested Robert Milstead, who also gave a statement to the police about the Blackmons.
In the afternoon of April 3, 1986, the police-accompanied by Milstead-went to the locations where each of the Blackmons had been separately killed. At the scene of Mrs. Blackmon's murder, police found a trail through the woods. Officer Watson discovered bleached hair entwined with white fiber. Watson collected soil and debris samples which contained blood-stained leaves and soil. A .25 caliber shell casing was found close to the blood stain. The hair found near the blood stain later was microscopically compared to a hair sample taken from Mrs. Blackmon's body and determined to be the same.
Mr. Blackmon's 1985 Cadillac Eldorado was recovered from the Coosa River on April 4, 1986. Fred Blackmon was found dead, stuffed into the trunk of the car. The windows were down, the doors were unlocked, the ignition key was in the on position, and the car was in first gear. Upon discovering that the car's tail light was broken, the officers went to the area in Calhoun County where Milstead said Mr. Blackmon had been murdered. At that location, in the middle of a dirt road, the officers found broken pieces of a red plastic tail light lens, a silver plastic Cadillac emblem, two spent .25 caliber shell casings, and a long white fiber. On the same day the Blackmons' car was recovered, Officer Townsley went to Milstead's house, where he discovered an ax and several blue metal drums.
The state medical examiner, who performed an autopsy on Mr. Blackmon, found a torn strip of white cloth tied around his mouth as a gag. Mr. Blackmon had been shot twice. One of the gunshots penetrated his neck and the other passed through the heart. Both bullets were recovered. Mr. Blackmon also had suffered a minor blunt force injury to the back of his head. The gun shot wounds were determined to be the cause of his death.
Officers Watson and Bradley inventoried the contents of Boyd's Chevrolet Camaro on April 7, 1986. They found a piece of white and yellow entwined cloth, knotted on one end, with hair entwined in the knot, as well as a black mesh shirt, a pair of blue underwear, a black jacket, and another piece of cloth on the right front floorboard. They also discovered a roll of gauze in the console of the car along with a yellow-gold necklace inside an envelope. The necklace later was identified as belonging to Mrs. Blackmon. Two spent .22 caliber shell casings were found on the dashboard.
On April 9, 1986, a metal drum containing Evelyn Blackmon's body was recovered from the Coosa River too. Mrs. Blackmon's mouth had been gagged and a piece of cloth had been tied around her ankles. She had sustained three gunshot wounds: a superficial wound to her head; a wound to the right side of her neck; and a wound to her back. Mrs. Blackmon also had sustained a laceration to her right forehead, numerous fractures to her nose and face, and an ax wound to her lower back that broke her backbone. The gunshot wounds were determined to be the cause of her death.
At trial, there was conflicting testimony regarding whether Boyd had murdered Fred Blackmon, Evelyn Blackmon, or both victims. Anniston Police investigator Gary Carroll testified that Boyd insisted in his first statement to the police that his accomplice, Milstead, had killed both victims. Specifically, Boyd told the police that on the morning of March 26, 1986, he and Milstead, both armed, gained entry into the Blackmons' home. Boyd and Milstead had previously discussed robbing the Blackmons. Boyd admitted that he accompanied Mr. Blackmon to the bank, where Mr. Blackmon withdrew $5,000 and turned it over to Boyd, and returned to the Blackmons' house. Boyd and Milstead then forced the Blackmons into Mr. Blackmon's Cadillac Eldorado and drove to an area in Ohatchee, Alabama, near the river. After the car was parked, Milstead, according to Boyd, physically assaulted Mrs. Blackmon, and then shot her. Mr. Blackmon tried to barter for his life, but Boyd hit him on the back of the head, and then Milstead shot him too. Boyd and Milstead left the crime scene in the Cadillac Eldorado, only to return later that night. They stuffed Mr. Blackmon's body in the trunk of the Cadillac Eldorado and rolled the car down a boat ramp into the river. They left and returned to the crime scene still again the next morning, stuffed Mrs. Blackmon's body into a 55-gallon barrel and rolled the barrel into the river. They later disposed of the two guns used during the crime by throwing them into a creek.
On April 4, 1986, Boyd gave a second statement to the police that provided a detailed description of how to find the locations of the crime scenes. Boyd provided a third statement on April 6, 1986, claiming that he had remained in the car with Mr. Blackmon while Milstead took Mrs. Blackmon into the woods. Boyd said that Milstead was just supposed to leave her there, but decided to kill her instead. Boyd accompanied police to a creek on April 11, 1986, to show them where the guns had been discarded after the murders. A nickel-plated Raven Arms Company .25 caliber automatic pistol and a black .22 caliber pistol were recovered. There was one unfired round in the .25 caliber pistol, and five rounds still in the .22 pistol.
Milstead's statements and testimony, on the other hand, said that Boyd had killed both victims. Milstead pleaded guilty to capital murder and testified for the State against Boyd, in exchange for a sentence of life without parole. Prior to testifying, he had given five statements to the police, which varied in certain respects, but four of them consistently accused Boyd of shooting both victims as well as assaulting them.
Milstead testified that on the morning of the crime, Milstead, who did not know the Blackmons, gained entry into the Blackmons' house along with Boyd; they were both armed with loaded pistols. Boyd then gagged and blindfolded Mrs. Blackmon, and threatened the Blackmons that Mrs. Blackmon's daughter, Julie, had been taken hostage and would be killed if the Blackmons did not pay a ransom. Boyd forced Fred Blackmon to go to the bank to withdraw money, leaving Mrs. Blackmon alone at the house with Milstead. After Mr. Blackmon withdrew $5,000 and gave the money to Boyd, they returned to the home. Boyd and Milstead then forced Fred and Evelyn Blackmon at gunpoint into Mr. Blackmon's Cadillac Eldorado, and drove them to a secluded area by the river.
At that point, they separated the Blackmons, first forcing Mrs. Blackmon to walk away from the car to a clearing behind a brush pile. Boyd then re-gagged and blindfolded Mrs. Blackmon, and, after talking to her, struck Evelyn Blackmon across her forehead and nose with a stick. Mrs. Blackmon screamed, whereupon Boyd tried to strangle her with a cloth. Boyd then shot Mrs. Blackmon with a .22 caliber pistol, which he had muffled with the cloth. After she continued to fight for her life, Boyd took the .25 caliber gun from Milstead, who was standing with them, and shot her still again in the back and in the head.
Boyd and Milstead returned to the car and drove Mr. Blackmon to another location. After exiting the car, Boyd hit Mr. Blackmon's head with a stick. This blow also broke the taillight on Mr. Blackmon's Cadillac. Boyd then took a piece of cloth and started choking Mr. Blackmon with it. When Fred Blackmon struggled for his life and stabbed Boyd with a stick, Boyd took out the .25 caliber pistol and put it to Mr. Blackmon's throat. Mr. Blackmon begged Boyd not to shoot him, offering to give him $50,000. Boyd told Fred Blackmon that it was too late, and shot him in the chest and neck with the .25 caliber pistol. Boyd and Milstead left the scene in Mr. Blackmon's car. They returned later that night to the location of Fred Blackmon's murder, stuffed his body into the trunk of his car, and rolled it into the Coosa River. After a few minutes, the car sank. They threw the two pistols into a creek that night.
The next morning, Boyd and Milstead returned to the crime scene, finding Mrs. Blackmon's body. By Milstead's account, Boyd said the body was too stiff, so he took Milstead's ax and tried to cut Mrs. Blackmon's body in half. Boyd then took the body and broke Evelyn Blackmon's back, and along with Milstead threw her body into a metal barrel along with some cement blocks and rocks. Boyd cut some holes in the barrel with the ax. He and Milstead rolled the barrel into the river. The barrel sank in the water.
Kenny Surrett, who had grown up with Boyd, also testified for the State, providing another conflicting account indicating that Boyd had confided that he had shot Fred Blackmon, but not Mrs. Blackmon. Surrett said that on the night of March 25, 1986, the evening before the Blackmons were kidnaped and murdered, he was with both Boyd and Milstead. Surrett saw, among other things, a chrome or silver .25 caliber automatic pistol in Boyd's possession.
On the night of March 27, 1986, the day after the Blackmons disappeared, Surrett drove to Boyd's house to collect on a bad check Boyd had given him. Soon after Surrett arrived, Boyd said, “Kenny, I didn't realize how coldblooded I was.” R739.FN1 Boyd then said he had something to tell Surrett. Boyd admitted that he and Milstead had gone to the Blackmons' house to rob them, and Boyd had taken Mr. Blackmon to the bank where Mr. Blackmon withdrew some money. Milstead and Boyd then took the Blackmons to the river. Boyd said he hit Fred Blackmon on the back of his head with a stick and then shot him. Boyd also told Surrett that Milstead hit Mrs. Blackmon in the nose and shot her a couple of times. Boyd confessed that he chopped Mrs. Blackmon's back with an ax in order to be able to dispose of her body in a barrel. Boyd paid Surrett with money that, Boyd said, he had obtained from Fred Blackmon. A week later, Boyd joked with Surrett about the Blackmons being “at the bottom of the river.” R745.
FN1. “R” refers to pages in the transcript of the 1987 trial; “CR” refers to the clerk's record of that same transcript. “Vol.” refers to the state post-conviction record. The post-conviction record originally consisted of 20 volumes. Any citation to this 20 volume transcript will include a reference to the volume number ( e.g., Vol. 16 at _). There were two supplements to the state post-conviction transcript, one supplement was six volumes in length and the other was three volumes. “Supp. Vol. __ of 6” refers to the six-volume supplement. “Supp. Vol. _ of 3” refers to the three-volume supplement.
Sharon Johnson, who was dating Boyd at the time of the crime, gave an account of events roughly consistent with Surrett's. She testified that Milstead told her that he shot Mrs. Blackmon, and Boyd shot Mr. Blackmon. Johnson further said that she saw Boyd with approximately $3,000.
The Calhoun County Grand Jury indicted Boyd on eight counts of capital murder on April 25, 1986. The first four counts charged him with murder during the course of a kidnaping, in violation of Ala.Code § 13A-5-40(a)(1), and the remaining four counts charged him with murder during the course of a robbery, in violation of § 13A-5-40(a)(2). On March 16, 1987, Boyd's capital murder trial began. The jury returned verdicts on March 20, 1987, finding Boyd guilty on all eight counts.
B. The Sentencing Hearing Before the Jury
The penalty phase of the trial began the same day that Boyd was convicted. Although his lawyers had asked for the evening to prepare, the court gave them only “a few minutes.” R966.
The prosecutor did not present any evidence at the sentencing hearing before the jury, and instead relied on evidence presented at the guilt phase to argue in support of finding two statutory aggravating circumstances: (1) the capital offense had been committed during a robbery and kidnaping, see Ala.Code § 13A-5-49(4); and (2) the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses, see id. § 13A-5-49(8). In response, defense counsel presented four witnesses: Cindy Pierce, Boyd's sister; Geraldine Oliver, Boyd's mother; Herbert Hicks, a pastor; and Boyd himself.
At counsel's direction, Cindy Pierce had prepared a “life history” of Boyd that she read to the jury. Cindy's testimony emphasized the following themes:
1. Boyd's parents divorced when Boyd was two; Boyd's father went to prison, and attempted to escape from jail, leaving bad publicity and scars for the family; Boyd did not have much contact with his father, and as a result was adversely affected;
2. Boyd's younger sister was physically and mentally challenged; as she became older, the family, including Boyd, had to put her in physical restraints when she became violent;
3. Boyd grew up in an impoverished setting; at one point, Boyd and a friend burned down the family's trailer; Boyd was embarrassed by his family's financial difficulties;
4. Boyd had difficulties in school, ultimately dropping out at sixteen;
5. Boyd's mother remarried when Boyd was seven; this was difficult because Boyd was close to his mother and did not want to share her with anyone else; Boyd developed “serious problems” with his stepfather, who was “very strict and demanding”;
6. Boyd's grandfather died when Boyd was fourteen; this was difficult for Boyd as his grandfather essentially served as Boyd's father;
7. Boyd's stepfather's son was a bad influence on Boyd; when they got in trouble, Boyd's stepfather took his son's side;
8. At sixteen, Boyd moved to New Mexico to live and work with his great uncle; this was a “great opportunity” but Boyd became mired in debt and was “too immature to take advantage” of the opportunity; Boyd's grandmother paid off his debt and Boyd returned to Alabama;
9. Boyd had a romantic relationship with Julie Greenwood but Julie's mother, Evelyn Blackmon, forbade her daughter to date Boyd;
10. Boyd's sister, Cindy, married when Boyd was nine; Boyd grew very close to Cindy's husband who became a “brother figure”;
11. Boyd was a loving and caring uncle to Cindy's two children;
12. Boyd lived with Cindy and her husband after moving out of his mother's home when he was fourteen but eventually left Cindy's home because he resented her discipline;
13. Boyd's grandparents, to whom Boyd was close, were alcoholics;
14. Boyd served six months in jail for burglary when he was eighteen;
15. Boyd attended church as a youth and it was important to him.
See R974-91. Cindy also testified that Boyd expressed remorse for the crime and explained that “it was never meant to happen.” R989.
Boyd also testified at the sentencing phase, apologizing for “what happened,” and offering that he wished he could undo his actions. R991-92. Boyd's mother testified that Boyd was “sorry for all the hurt and pain that” he had caused. R993, 998. She described Boyd as a loving and caring person who was always very helpful. She said that she loved her son and tried to “bring him up in the right way.” R997-98. Finally, Pastor Herbert Hicks testified, after visiting Boyd in jail at the request of Boyd's mother. Pastor Hicks said that Boyd was sorry for his involvement in the crime even though he was “not guilty.” R999-1000. In addition, Boyd “had turned his face to the Lord and ... had made things right with Him.” R1000.
Following this testimony, defense counsel said to the jury: “You have heard it all. There's not much I can add. The decision is yours.” R1002.
The jury recommended, by a vote of seven to five, that Boyd be punished by life imprisonment without the possibility of parole. Thereafter, a date for the sentencing hearing before the trial judge was set.
C. The Sentencing Hearing Before The Trial Judge
The same judge who had presided over Boyd's trial commenced a sentencing hearing on April 9, 1987, nineteen days after the sentencing hearing before the jury. Alabama employs a trifurcated proceeding for the trial and sentencing of persons charged with capital offenses: (1) the guilt-innocence phase; (2) the penalty phase, during which the jury issues an advisory sentencing verdict based on its evaluation of aggravating and mitigating circumstances, see Ala.Code § 13A-5-46; and, finally, (3) a phase, after the jury has rendered its advisory verdict at the penalty phase, at which time the trial judge orders and receives a presentence investigation report, takes further argument, and may receive additional evidence concerning the aggravating and mitigating factors. Thereafter, the trial judge is obliged to enter written findings as to these factors and impose sentence. See id. § 13A-5-47; Brownlee v. Haley, 306 F.3d 1043, 1050 (11th Cir.2002).
At the sentencing hearing before the trial judge, neither Boyd nor the State offered any additional evidence, although both presented arguments in support of their positions. The trial judge then sentenced Boyd to death, and said that a written order would be filed later. In the sentencing order, the trial judge found the existence of two statutory aggravating circumstances: (1) the capital offense was committed while the defendant had been engaged in the commission of robbery and kidnaping, see Ala.Code § 13A-5-49(4); and (2) the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses, see id. § 13A-5-49(8).
The trial judge amplified the second aggravating circumstance with these written findings of fact:
(a) Th[e] Defendant invaded the privacy of the victims, threatened to kill their daughter (and step-daughter), robbed them, kidnaped them at gun point from their home, bound and gagged them, took them to a remote area and abused both of them while they were fighting and begging for their lives.
(b) The Defendant inflicted severe pain and suffering upon both victims by hitting them on the head and in the face with a large limb while they were tied up and blindfolded.
(c) The Defendant shot each victim two or three times after physically abusing them.
(d) The Defendant used an ax to cut Evelyn Blackmon so that her body would go into a 55 gallon drum.
(e) The Defendant bragged about the killings and about how cold blooded he was.
CR201.
The trial judge also found one statutory mitigating circumstance: Boyd was twenty years of age on the date of the offense. In addition, the trial judge took into account a non-statutory mitigating circumstance: the fact that Boyd, to some degree, had assisted police in locating the bodies of the victims and the weapons used in the murders. The trial judge also expressly took into account all of the evidence presented concerning Boyd's “background and character as the same pertains to the mitigating circumstances that should be properly considered by the Court.” CR202. The trial judge explained that the jury's penalty phase verdict possibly had been influenced by the very emotional testimony offered by Boyd's sister and mother. Finally, the trial judge concluded that “[w]hile the mitigating circumstances and the jury's recommendation of life without parole have weighed heavy in the Court's consideration, this Court does now find, and is convinced beyond a reasonable doubt and to a moral certainty that the aggravating circumstances of this horrible, cold blooded crime as shown and brought before the Court far outweigh the mitigating circumstances shown to the Court.” CR203.
D. Background Regarding the Performance of Boyd's Counsel
Boyd was represented at trial by Stephen Levinson and Grant Paris; Mannon Bankston, Jr. assisted. Only Levinson testified as a witness at Boyd's state habeas court evidentiary hearing (“the Rule 32 hearing”). According to Levinson, none of Boyd's lawyers had previously handled a capital case. Levinson had practiced for eight years before he represented Boyd, and had handled about six felony jury trials.
Levinson felt that he had the primary responsibility for pretrial preparation, although added that he would not be surprised if Grant Paris “felt that it evolved to him.” Vol. 16 at 109. Boyd would not initially speak with Levinson, but they eventually communicated some fifteen to twenty times before trial. As for witnesses, Boyd's counsel spoke with Boyd's mother, his sister, his brother, his brother-in-law, and his stepfather. Counsel learned that Boyd's father left the home when Boyd was about two years old. However, counsel did not talk to any family members about the possibility of neglect or deprivation, and did not obtain any official records about Boyd or his family. Levinson also “possibly” contacted Sharon Johnson, and unsuccessfully tried to contact Kenny Surrett, who feared he would be charged as an accessory if he did not testify against Boyd, since he had taken money from Boyd after the murders. Id. at 110, 118. Co-counsel Paris contacted the pastor.
Counsel also hired an “independent” psychologist, Dr. Alan Krichev, to evaluate Boyd, because they did not want Boyd sent to Taylor Harden Secure Medical Facility, a state-run mental health hospital.FN2 Dr. Krichev prepared a report concluding that Boyd had not suffered from any mental illness and was competent. The report further opined that “[t]here were no indications of major psychopathy,” and that Boyd showed a “lack of emotional content but otherwise w[as] not pathological in nature.” Vol. 16 at 157-58. Levinson decided that he would not call Dr. Krichev as a witness, since he “didn't know how [the report] would help Glenn.” Id. at 116. Levinson admitted that he lacked an understanding of the tests Dr. Krichev performed, which was probably “due to my inability to either understand or ask.” Id. at 156.
FN2. Notably, Dr. Krichev was not presented at the Rule 32 state habeas evidentiary hearing.
Levinson suggested that there was “some dissension between the attorneys” about “how we should handle the case, who should do what, and what essentially our strategy or theory of defense was.” Id. at 105. “We didn't really have a defense strategy other than ... to dispute what Robert Milstead was saying as best we could with what we had.” Id. at 126. Although Levinson thought it important to impeach Milstead, Milstead's attorney would not let Boyd's counsel speak with him before trial, and Levinson did not talk to any of Milstead's family or neighbors. Nor did Levinson consult with an independent pathologist or with the State's pathologist in preparation for trial.
Levinson offered that he was “possibly” in charge of the penalty hearing before the jury, and “guess[ed]” he did the preparation for it. Id. at 129. Levinson did not expect to have to start the penalty phase right after the guilt phase, but rather hoped to get an overnight continuance. In approaching the penalty phase, “there was an assumption that if there was a conviction, we would try to mitigate the effect of the conviction through a family member's testimony; humanize the defendant, so to speak.” Id. at 132.
Accordingly, Levinson asked Boyd's sister Cindy to write a story about her brother, “essentially ask[ing] her to tell me some positive things about Glenn's life as she grew up with him and as she knew him: to humanize him.” Id. at 131-32, 153-54. Levinson “[e]ssentially asked” Boyd's mother “to do the same thing, give us something to let the jurors see what type of person Glenn is in terms of his positive aspects, his good side, his bright side.” Id. at 153-54. Levinson said that he met with Cindy and Boyd's mother more than five times. He conceded that he would have welcomed evidence that Boyd grew up in a violent, abusive, or alcoholic home for a mitigation case, but that he did not investigate any of these possibilities. He also admitted that a penalty phase investigation might have been helpful.
Cindy, Boyd's sister, testified at the Rule 32 hearing that she met with Levinson about five times. Levinson asked Cindy about three months before trial to write a story about Boyd's life, but she did not really know the purpose of writing the story. In a meeting some two days before trial, Levinson told Cindy that she would be called as a witness. Cindy said that Levinson met with her mother only on that one occasion. Cindy did not know what she would be testifying to until the day she testified, when Levinson called her into the hall and told her to read to the jury the account she had written. Cindy offered that the lawyers had not asked her about the violence, neglect, abuse, or alcoholism in their home, but that she would have been willing to testify about these issues.
Levinson added that no one was in charge of the sentencing hearing before the judge that followed the jury's verdict, and that they did not present additional evidence at that time because “[w]e stupidly thought that the judge would accept the jury's recommendation.” Id. at 129-30, 145.
Levinson also represented Boyd on appeal. He considered raising on appeal whether the State had presented false or misleading testimony through Milstead, but said that while he thought Milstead was a liar, he did not think the State “had anything to do with that,” since he did not “think the state would have knowingly put on perjured testimony.” Id. at 137.
E. Potential Mitigating Evidence
Boyd presented several witnesses at the state habeas hearing to testify about further mitigating evidence that could have been introduced at his original trial.FN3
In addition, records maintained contemporaneously by social service institutions, hospitals, schools, and other agencies were made available to the state habeas court. These records document: the stepfather's abuse; alcoholism in the family; family depression and suicide attempts; Boyd's mother's inattention to her children's needs; the family's lack of resources; and his father's incarceration.
Jan Vogelsang, a clinical social worker with some fifteen years of expertise in victimization and child trauma, testified about the “psychosocial assessment” she performed on Boyd. Vol. 17 at 171. Her summary of the various risk factors apparent in Boyd's life included the following.
First, Boyd's father, Butch, was an alcoholic who was in and out of jail throughout Boyd's childhood, humiliated his children and failed to support them, attacked his aging parents, and when he would return to the house unannounced and raging, he would destroy its contents.
Second, Boyd's stepfather, Don Oliver, who married Boyd's mother when Boyd was eight, was a brutal man who beat the children. He regularly assaulted Boyd's mentally disabled sister, Susie, and would lock her in her room for days and weeks. Oliver's beatings of Boyd's sister Cindy ultimately led social services to remove her from the home. On one occasion Oliver struck Boyd with his fists when Boyd sought to intervene in defense of his sister Susie, beat him another time when Boyd tried to protect his mother, and frequently hit Boyd on the head with a rifle butt when they went hunting. However, Oliver's violence toward Boyd was not documented in any social service agency records. In addition, Dr. Karl Kirkland, the psychologist testifying on behalf of the State, said that Boyd had told him that Oliver hit him on the head with a rifle butt on one occasion.
Third, Boyd's mother loved her children but was unable either to provide for or to protect them, and attempted suicide when Boyd was eleven. Rats and snakes crawled in and out of the children's belongings; when there was insufficient food, Boyd and his siblings sought nutrients from dirt, and also received food from their grandparents. Several of the social service records did say, however, that the children appeared to be well cared for and supervised, but these records also indicated that the Boyds frequently received governmental assistance.
Fourth, Boyd's alcoholic grandparents, at whose house Boyd spent significant amounts of time, beat each other in front of the children, who were “used to seeing them crawl in the house drunk on their knees.” Id. at 194, 196. Their drunkenness led them to jeopardize the children's safety, as when they forced then-twelve-year-old Cindy to drive the family home from Florida to Alabama with six-year-old Boyd beside her.
Finally, Boyd's sister Cindy, who attempted to parent him, was only a child herself, and at some point, tried to kill herself. Cindy left when Boyd was nine years old and Oliver cut off her contact with Boyd, who was “basically left to more or less figure out life for himself.” Id. at 182, 212-13.
Based on these circumstances, Vogelsang claimed that Boyd's upbringing represented one of the worst family situations she had seen in terms of violence, neglect, and alcoholism. Vogelsang concluded that Boyd presented a high risk of being impulsive, had become emotionally constricted, and could not make sound decisions based on what he knew.
On cross-examination, Vogelsang admitted that she had not considered the following positive factors, which were also present in Boyd's life: (1) Boyd had very close relationships with his mother, his paternal grandparents, his sister, and his sister's husband; (2) Boyd and Julie Greenwood had a romantic relationship in which they discussed marriage; and (3) Boyd's great uncle, when Boyd was fifteen or sixteen years old, allowed Boyd to come live with him in New Mexico in order to teach Boyd how to become a mechanic.
Cindy Pierce, Boyd's sister, also testified at the Rule 32 hearing about Boyd's deprived family background, conveying both more and in greater detail than she did at trial about the abuse and neglect the children had endured. Cindy confirmed that: (1) their grandparents were alcoholics who “fought” with each other, Vol. 17 at 11-14; (2) their father was rarely around, but when he was, he was “crazy,” would come in and destroy the furniture, would knock or slap down their mother, and occasionally beat his parents, id. at 23-26, 28; and (3) their stepfather was very cruel, treated their mother like a slave, beat her severely twice, beat sister Susie at least three times a week, and while he “wasn't as quick and easy to beat [Boyd] as he was myself and [Susie],” probably beat Boyd about once a week. Id. at 29-33.
Despite growing up in the same household as Boyd, Cindy did not commit any crimes, and at the time she testified, worked as a training supervisor at a manufacturing company. She explained that Boyd moved in with her at some point when he was approximately fourteen years old but that her efforts to discipline him were not well received. She also said that Boyd did not take advantage of the opportunity offered by their great uncle.
At the Rule 32 hearing, Calhoun County Sheriff Roy Snead singled out Boyd's father as suffering from serious alcoholism; he added that the father had been arrested twenty-six times. Retired Anniston police officer Bill Whatley also offered an episode of Oliver's domestic abuse. Childhood neighbor Kathy Gurley, familiar with the stepfather's physical and verbal assaults on Boyd and the mother's helplessness, testified that violence was endemic throughout Boyd's neighborhood. Gurley opined that Boyd was among the kindest of the youngsters she knew and believed his involvement in these offenses was wholly out of character.
Boyd also relied upon the testimony of Dr. Louis Tetlow, a clinical psychologist for the Louisiana Department of Corrections. Dr. Tetlow performed a number of tests on Boyd and concluded that Boyd, among other things, had trouble planning ahead, was short-sighted and impulsive, unable to evaluate possible consequences or trust others, expressed emotional constriction, indicating an inability to be empathetic, had an abiding problem with authority, and evinced anger and rage. Dr. Tetlow further opined that Boyd had been adversely affected by his father's absence, and by the beatings he sustained at his stepfather's hand while his mother sat by passively.
Dr. Tetlow concluded, however, that Boyd had above-average intelligence, no delusional beliefs, no signs of organic brain damage, and no history of alcohol or drug abuse. Dr. Tetlow agreed with Dr. Krichev's pre-trial evaluation that Boyd did not meet the criteria for a psychological diagnosis and “really d [id] not have a major mental disorder.” Vol. 19 at 446.
Dr. Karl Kirkland, a licensed psychologist certified by the State as a forensic examiner, testified on behalf of the State at the Rule 32 hearing. Dr. Kirkland described what he had heard during Boyd's post-conviction hearing as “a pervasive history of emotional and physical abuse that has been very well documented.” Vol. 20 at 500-01. But, Dr. Kirkland opined, while Boyd had difficulty in expressing emotions, he was capable of recognizing many emotions and expressing many of those feelings. Dr. Kirkland said that Boyd could easily form emotional attachments; he described the close relationships Boyd had with his sister Cindy, with his mother and grandparents, and with Cindy's husband, and his fairly typical adolescent romantic relationship with Julie Greenwood.
Dr. Kirkland agreed with the conclusions of Drs. Krichev and Tetlow that Boyd did not meet the criteria for any psychological diagnosis, and presented no mental health history, and no drug or alcohol history. Dr. Kirkland further observed that Boyd was of average intelligence, scoring high in comprehension and low in math, and that possible learning difficulties in math might have explained why he left school early. Dr. Kirkland also noted Boyd's positive work history-including work in a fast-food restaurant as a dishwasher for a year, for a railroad company for a year, as an auto mechanic for three years, and as a television satellite technician for three to four months, rising to the level of a crew chief.
Dr. Kirkland concluded that the abuse Boyd suffered in his childhood did not cause Boyd to commit murder. Regarding Boyd's mental state at the time of the offense, Dr. Kirkland said that he could not find any evidence to suggest that Boyd was suffering from a mental illness at the time he committed the offenses or anything else that would reduce his criminal responsibility. Dr. Kirkland added that Boyd recognized the criminality of his conduct and was in complete control of his behavior at the time of the crime.
F. Post-Trial Procedural History
Boyd appealed his conviction and sentence to the Alabama Court of Criminal Appeals. He was represented again by one of his trial lawyers, Levinson, and Michael Allsup, a lawyer appointed by the court for purposes of appeal. Three claims were made on direct appeal: (1) the warrantless search of Boyd's impounded vehicle was unreasonable, and the evidence seized as a result of that search should have been deemed inadmissible; (2) the trial judge erred by refusing to answer the jury's request that he define the distinction between “Murder and Capital Murder”; and (3) the Circuit Court lacked jurisdiction to try Boyd for Evelyn Blackmon's murder.
The Alabama Court of Criminal Appeals rejected each of Boyd's claims, and affirmed Boyd's conviction and death sentence. Boyd v. State, 542 So.2d 1247 (Ala.Cr.App.1988). Among other things, the court affirmed the trial judge's decision to sentence Boyd to death, concluding that it had “found no evidence in th[e] record that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor.” Id. at 1260. The appellate court independently re-weighed the aggravating and mitigating factors considered by the trial judge, a process which the court said “convinces us that death was the proper sentence to be imposed in this case.” Id. The Alabama Court of Criminal Appeals added that Boyd's sentence was not disproportionate to the penalties that had been imposed “in similar cases,” and that “[we] carefully searched this record for plain error and [we] have found none.” Id.
Boyd petitioned the Supreme Court of Alabama for certiorari review; that court affirmed the decision of the Court of Criminal Appeals. Ex parte Boyd, 542 So.2d 1276 (Ala.1989). The United States Supreme Court denied certiorari. Boyd v. Alabama, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989).
2. State Habeas Proceedings
In July 1990, Boyd, represented by new counsel, filed a petition for post-conviction relief pursuant to Rule 20 of the Alabama Temporary Rules of Criminal Procedure, since renumbered as Rule 32. Boyd raised thirty-two claims in his Rule 32 petition, many with numerous sub-claims, including the suggestion that Boyd had received ineffective assistance of counsel both at trial and on direct appeal. The State responded, arguing that all of the claims, except those alleging ineffective assistance of counsel, were procedurally barred. After the state habeas court summarily dismissed Boyd's petition, Boyd moved for reconsideration of the dismissal of the petition, and on October 16, 1990, the trial court reinstated the petition.
Boyd then filed an amended Rule 32 petition on July 8, 1994, raising thirty-seven claims, including thirty-one subclaims involving ineffective assistance of counsel. On September 7, 1994, the Rule 32 trial judge entered an order of partial dismissal, dismissing all of Boyd's claims except for those raising ineffective assistance of counsel, finding that the dismissed claims were foreclosed by Rule 32.2(a) and subject to summary dismissal pursuant to Ala. R.Crim. P. 32.7(b). Boyd's Rule 32 petition primarily contended that his trial counsel had failed to investigate his background, or to conduct in-depth interviews with family members, or finally, to otherwise develop mitigating evidence for the sentencing phase.
Beginning on September 8, 1994, and continuing on October 6, 1994, October 7, 1994, and October 12, 1994, the state habeas court conducted an evidentiary hearing at which the parties submitted oral testimony, exhibits, and depositions. After receiving post-hearing briefs, the trial judge denied Boyd's Rule 32 petition on July 25, 1997. The trial court explained its ruling this way:
The Petitioner raises thirty (30) separate claims of ineffective assistance of counsel, both at the trial level and appellate level. Upon consideration of all of the above as it concerns and applies to each separate claim, this Court finds that the Petitioner has failed to show that his counsel's representation, both at the trial level and appellate level, fell below the objective standard of reasonableness or that there was a reasonable probability that but for counsel's unprofessional errors, if any, the outcome of his case would have been different, as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Vol. 5 at 944-45.
Boyd appealed on September 4, 1997, raising numerous issues, including substantive claims alleging errors at trial and claims that his trial counsel and appellate counsel were ineffective. He also contended that the trial court erred in summarily dismissing claims that were properly presented in his Rule 32 petition. On December 18, 1998, the Alabama Court of Criminal Appeals affirmed the denial of relief. Boyd v. State, 744 So.2d 954 (Ala.Crim.App.1998) (Table). Following Boyd's application for rehearing, the court withdrew the memorandum opinion and issued a published opinion on March 26, 1999, again affirming the denial of Boyd's Rule 32 petition. Boyd v. State, 746 So.2d 364 (Ala.Crim.App.1999).
The Alabama Court of Criminal Appeals described the evidence in support of Boyd's penalty phase ineffectiveness claim:
At the Rule 32 hearing, Boyd presented a wealth of testimony characterizing his childhood as consisting of continual gross poverty; gross physical and emotional abuse; gross neglect; and various humiliations. These indignities were bestowed at the hands of a cruel and alcoholic father and stepfather; a mentally disturbed mother; and loving but severely alcoholic grandparents.
Id. at 377; see also id. at 377 n. 5 (noting the witnesses who testified regarding the ineffectiveness claim, among others). After recounting the testimony of the Rule 32 experts (Vogelsang and Dr. Tetlow for Boyd, and Dr. Kirkland for the State), the court concluded that each found that Boyd had made a “choice” to participate in the offense and that his horrific upbringing did not “cause” him to commit murder. Id. at 377.
As for counsel's performance at the penalty phase, the trial court characterized Levinson's “assumption” that upon conviction counsel would “try to ... humanize the defendant, so to speak,” as a “tactical choice” that could not be second-guessed. Id. at 379. The court reiterated this conclusion when addressing counsel's subsequent performance before the sentencing court. Additionally, it held that the Alabama statute “does not provide for the presentation of additional mitigation evidence at sentencing by the trial court,” and that trial counsel therefore did not err in failing to present any. Id. at 398. The Alabama Court of Criminal Appeals also noted that “Levinson's penalty phase strategy was successful; the jury recommended, by a vote of 7-5, that Boyd be sentenced to life imprisonment without parole.” Id. at 379.
The court further concluded that Boyd had failed to show that the lack of psychological evidence or any other evidence at the sentencing phase prejudiced him. It observed that “[i]n overruling the jury's recommendation and sentencing Boyd to death, the trial court found that these crimes were ‘extremely wicked and shockingly evil[,’ and that] all Capital offenses are heinous atrocious and cruel to some extent, but the degree of heinousness and cruelty in these offenses far exceeds that which is common to all Capital offenses.” Id. (citing Boyd, 542 So.2d at 1268). The court determined that Boyd's background was not a “factor” in the murders and that Boyd knew right from wrong, and thus concluded that the trial court would not have been persuaded to follow the jury's recommendation even had this evidence been presented. Id. at 379. It said:
We do not believe that this additional evidence would have shifted the balance between the aggravating circumstances and the mitigating circumstances and changed the outcome of the trial.... Had the testimony presented at the Rule 32 hearing regarding Boyd's childhood been presented at the sentencing hearing it is highly unlikely that the trial court would have been persuaded to sentence Boyd differently.
Id.
The Alabama Court of Criminal Appeals also considered the merits of Boyd's claim that counsel failed to effectively impeach Milstead. It held that expert assistance to challenge Milstead's assertions “would [not] have changed the outcome of the trial.” Id. at 385-86. As for the sentencing impact of Milstead's testimony, the court pointed to other evidence supporting the heinous, atrocious or cruel aggravating factor. Id. at 387.
The court also determined that both the juror misconduct and the knowing-use-of-false-testimony claims had been defaulted. As for the former, it held that the trial court had “properly denied” the claim because it had not been pled pursuant to Ala. R.Crim. P. 32.1(e), which requires both proof of innocence and proof that the new facts would lead to a different result. Boyd, 746 So.2d at 405-07. It also ruled that the claim that the prosecution knew or should have known that it was introducing false testimony was presented differently in the trial court than on appeal. Id. at 409. The court also denied this claim on the ground that it too should have been pled pursuant to Rule 32.1(e). Id.
Boyd sought certiorari review on all of his claims, but the Alabama Supreme Court denied certiorari without opinion. Ex parte Boyd, No. 1981080 (Ala. Oct. 22, 1999).
3. Federal Habeas Proceedings
On October 16, 2000, Boyd commenced this federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in the United States District Court for the Northern District of Alabama, raising thirty-four claims. After receiving extensive briefing from both sides, the district court filed a 192-page memorandum opinion denying Boyd's habeas petition in all respects. See D. Ct. Docket Entry (“Doc.”) 40 (filed Dec. 7, 2004). Notably, the district court denied Boyd's claim of ineffective assistance of counsel during the penalty phase, on the ground that it “agree[d] with the conclusion of the Alabama Court of Criminal Appeals, that Boyd cannot satisfy the [ Strickland ] ... prejudice prong, which focuses on whether the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Doc. 40 at 69 (quotation, punctuation, and citations omitted). The court reached this conclusion based on its assessment that Boyd's argument as to prejudice rested on “a speculative foray into conceivable, but imponderable, outcomes.” Id.
On December 22, 2004, Boyd moved the district court to alter or amend the judgment, pursuant to Fed.R.Civ.P. 59(e). Almost three years later, the district court granted in part and denied in part Boyd's Rule 59(e) motion. Doc. 48. Specifically, based on “additional attention” to United States Supreme Court precedent, including the intervening decision of Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), as well as “[c]areful consideration” of the arguments contained in Boyd's Rule 59(e) motion, the district court granted Boyd relief on his claim that trial counsel was ineffective at the penalty phase, and ordered a remand “to the state trial court with instructions to assess the mitigating evidence that Boyd's attorneys attempted to present at the Rule 32 hearing, and thereafter to conduct a proper, constitutional, evaluation of all mitigating factors adduced at trial and at the Rule 32 hearing, in their entirety, before re-weighing all of such evidence against the aggravating factors found in Boyd's case.” Doc. 48 at 59 (emphasis omitted).
The State filed a timely appeal concerning that portion of the district court's order granting relief on the penalty phase ineffectiveness claim. On June 16, 2009, after the district court denied the State's motion to stay the judgment pending the State's appeal, this Court entered a stay. Order, Boyd v. Allen, No. 07-14908 (11th Cir. June 16, 2009).
Boyd also filed a notice of appeal to this Court on a number of the issues rejected by the district court. Boyd moved for a certificate of appealability, which the district court granted concerning the following issues:
I. Whether the extraneous evidence uttered in the jury room by alternate juror Edward Williams entitled Boyd to a full hearing and habeas relief;
II. Whether Boyd was denied effective assistance of counsel during the guilt phase of trial, and;
III. Whether the state courts' disposition of Boyd's claim that his co-defendant presented false testimony on the ground of a procedural default was an “adequate” basis upon which to preclude federal review of the claim.
Doc. 55 at 4 (footnotes omitted).
II. Standard of Review
Because Boyd filed his federal habeas petition after April 24, 1996, Section 2254(d) governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir.1998). Accordingly, a federal court may grant habeas relief only where the state court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court's factual findings are presumed correct unless rebutted by the petitioner with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is “contrary to” clearly established law if the court arrived at a conclusion opposite to one reached by the Supreme Court on a question of law, or if the state court confronted facts that are “materially indistinguishable” from relevant Supreme Court precedent but arrived at a different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is an “unreasonable application” of clearly established law if the state court unreasonably extends or fails to extend a clearly established legal principle to a new context. Id. at 407, 120 S.Ct. 1495. An application of federal law cannot be considered unreasonable merely because it is incorrect or erroneous; rather, a state court decision also must be unreasonable. Id. at 410-11, 120 S.Ct. 1495.
The district court's resolution of questions of law and mixed questions of law and fact is reviewed de novo, as is the district court's conclusion concerning the reasonableness of the state court's application of federal law. LeCroy v. Sec'y, Fla. Dep't of Corr., 421 F.3d 1237, 1259 (11th Cir.2005).
III. Ineffective Assistance of Counsel During the Penalty Phase
Boyd's central claim is that he received ineffective assistance of counsel during the penalty phase of his trial because his counsel failed to adequately investigate and present mitigating evidence to the sentencing jury and the trial judge. To succeed on an ineffective-assistance-of-counsel claim, Boyd must show that: (1) “counsel's representation fell below an objective standard of reasonableness,” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052; accord Knowles v. Mirzayance, --- U.S. ----, 129 S.Ct. 1411, 1420, 1422, 173 L.Ed.2d 251 (2009); Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Notably, a court “may decline to reach the performance prong of the ineffective assistance test if convinced that the prejudice prong cannot be satisfied.” Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir.1995) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052).
1. Strickland Performance
As an initial matter, we will assume, for purposes of this appeal, that the state habeas court unreasonably applied Strickland by finding that Boyd's counsel performed adequately in preparing for and presenting mitigating evidence at the penalty phase of trial. We ground this assumption on the fact that counsel hinged their preparation mainly on the undirected essay of one family member, without following up on or seeking any of the many available public records about Boyd and his family, which would have materially furthered Boyd's approach at sentencing.
As the record shows, before the penalty phase, Boyd's sister Cindy prepared, at counsel's request, a summary of Boyd's life that indicated a variety of childhood challenges-including an absentee father, a disabled sister, an impoverished upbringing, school problems, difficulties with his mother's remarriage, a close grandfather's death, and alcoholic grandparents. However, counsel never dug deeper into any of these issues. Had counsel done so, either by asking family members or looking into social service records, relevant mitigating evidence-about the Boyd children's destructive father, their violent stepfather, their ineffective mother, and the dangers their alcoholic grandparents exposed them to-would have come to light. Yet for no apparent reason, counsel simply failed to investigate. See Wiggins, 539 U.S. at 525, 123 S.Ct. 2527 (finding counsel's failure to investigate mitigating evidence deficient where “counsel uncovered no evidence in their investigation to suggest that a mitigation case, in its own right, would have been counterproductive, or that further investigation would have been fruitless”).
Evidence of abuse and other background details about Boyd would have supported the approach counsel took at sentencing-both to “humanize” Boyd, and to demonstrate that Boyd felt “remorse.” See id. at 526, 123 S.Ct. 2527 (criticizing counsel for their failure to introduce details of Wiggins' history, when “counsel put on a halfhearted mitigation case”). Indeed, defense counsel Levinson expressly testified that he would have welcomed evidence for a mitigation case that Boyd grew up in a violent, abusive, or alcoholic home, but he did not investigate any of these issues.
Also consonant with this lack of investigative follow-through, Boyd's counsel failed to prepare for or present any evidence at the sentencing hearing before the trial judge that followed the jury's verdict. According to Levinson, no one was in charge of this hearing: “[W]e didn't put any evidence on at the sentencing hearing, if I remember correctly. The jury had recommended life without [parole].... I think we felt that the job was essentially done.” Vol. 16 at 129-30. Levinson said that counsel did not present additional evidence because “[w]e stupidly thought that the judge would accept the jury's recommendation.” Id. at 145.
On this record and under our case law, the performance of Boyd's counsel likely was deficient. We need not, however, conclusively resolve this question, because as we determine below, Boyd has failed to satisfy Strickland's prejudice prong. See Windom v. Sec'y, Dep't of Corr., 578 F.3d 1227, 1248 (11th Cir.2009) (“We need not determine whether counsel's limited investigation into Windom's background and mental health constituted deficient performance under the first prong of Strickland because we conclude that, even assuming counsel performed deficiently, Windom was not prejudiced thereby.”); Hall v. Head, 310 F.3d 683, 699 (11th Cir.2002) ( “[A]lthough there is evidence in the record to support the district court's finding of deficient performance, we need not and do not ‘reach the performance prong of the ineffective assistance test [because we are] convinced that the prejudice prong cannot be satisfied.’ Indeed, in order for Hall to obtain habeas relief under Strickland, he must establish not only that counsel's performance was deficient, but also that counsel's errors ‘actually had an adverse effect on the defense.’ ” (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052)).
2. Strickland Prejudice
To show prejudice, it must be established that, but for counsel's unprofessional performance, there is a reasonable probability the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.... “It is not enough for the [petitioner] to show the errors had some conceivable effect on the outcome of the proceeding ...,” because “[v]irtually every act or omission of counsel would meet that test.” Id. at 693 [104 S.Ct. 2052].... Nevertheless, a petitioner “need not show that counsel's deficient conduct more likely than not altered the outcome in the case.” Id. at 693 [104 S.Ct. 2052].... Rather, where, as here, a petitioner challenges a death sentence, “the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695 [104 S.Ct. 2052]....
Putman v. Head, 268 F.3d 1223, 1248 (11th Cir.2001); see also Ferguson v. Sec'y for Dep't of Corr., 580 F.3d 1183, 1198-99 (11th Cir.2009) (noting that Strickland asks if a different result is “reasonably probable,” not if it is “possible”). Thus, “[i]n assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534, 123 S.Ct. 2527 (emphasis added). In so doing, we presume a reasonable sentencer. See Williams v. Allen, 542 F.3d 1326, 1342 (11th Cir.2008) (citing Strickland, 466 U.S. at 695, 104 S.Ct. 2052 (“[T]he idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency[,] ... are irrelevant to the prejudice inquiry.”)).
We begin our analysis accepting Boyd's claim-and the State's concession-that the state habeas courts unreasonably applied Strickland by resting their conclusions on the purported absence of a “causal relationship” between Boyd's mitigating evidence and the aggravating evidence in assessing prejudice. See Williams, 542 F.3d at 1343-44 (concluding that, based on the state habeas court's statement that “[t]he evidence regarding Williams' background was never found to have a causal relationship with Williams committing capital murder,” the court unreasonably applied Strickland by emphasizing “the absence of a ‘causal relationship’ between Williams' mitigating evidence and the statutory aggravator”).FN4
FN4. In Callahan v. Campbell, 427 F.3d 897, 937 n. 28 (11th Cir.2005), we held that the state habeas court's reliance on causation in its prejudice inquiry was not “contrary to” Strickland, since “we review the state court's decision and not necessarily its rationale.” Id. (citing Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 785 (11th Cir.2003)). Notably, however, the Callahan Court did not address whether it might be an “unreasonable application,” as Boyd argues, and which Williams v. Allen binds us to conclude.
As a result, in our analysis, we are obliged to weigh de novo the aggravating circumstances against the totality of mitigating evidence that Boyd introduced at his original sentencing hearing and in his post-conviction proceedings. See Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (“When a state court's adjudication of a claim is dependent on an antecedent unreasonable application of federal law, the requirement set forth in § 2254(d)(1) is satisfied. A federal court must then resolve the claim without the deference AEDPA otherwise requires.”). After conducting this de novo review, however, we are constrained to conclude, as the Supreme Court did in Strickland, that “[g]iven the overwhelming aggravating factors, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed.” 466 U.S. at 700, 104 S.Ct. 2052.
Indeed, the aggravating circumstances in this case are especially powerful. After hearing the testimony surrounding this particularly brutal double homicide, the trial judge explained his override of the jury's recommendation of life in these terms:
The Capital offenses were especially heinous, atrocious, or cruel when compared to other Capital offenses. The Court reaches the conclusion that this aggravating circumstance exists based upon the interpretation of the aggravating circumstances as made by the Alabama Court of Criminal Appeals and the Supreme Court of Alabama in defining heinous, atrocious or cruel, and evidence of the following:
(a) Th[e] Defendant invaded the privacy of the victims, threatened to kill their daughter (and step-daughter), robbed them, kidnaped them at gun point from their home, bound and gagged them, took them to a remote area and abused both of them while they were fighting and begging for their lives.
(b) The Defendant inflicted severe pain and suffering upon both victims by hitting them on the head and in the face with a large limb while they were tied up and blindfolded.
(c) The Defendant shot each victim two or three times after physically abusing them.
(d) The Defendant used an ax to cut Evelyn Blackmon so that her body would go into a 55 gallon drum.
(e) The Defendant bragged about the killings and about how cold blooded he was.
By any standard acceptable to a civilized society, these crimes were extremely wicked and shockingly evil. They were perpetrated with a design to inflict a high degree of pain with utter indifference to the suffering of the victims. The Court recognizes that all Capital offenses are heinous, atrocious and cruel to some extent, but the degree of heinousness and cruelty in these offenses far exceeds that which is common to all Capital offenses.
...
The Court finds that the jury in this case was not emotionally influenced with passion, prejudice or other arbitrary factors in arriving at its findings of guilty as to the Capital offenses. As to the recommendation of punishment of life without parole, the Defendant, his sister and his mother made highly emotional pleas against the death penalty, the State presented no testimony in the sentence recommendation hearing. The Court further finds that if the jury was emotionally influenced with passion as a result of this testimony, it was all in favor of the Defendant as was evident from the jury's advisory verdict of life without parole.
After due consideration of all the matters that were presented to the Court during this hearing, both in mitigation and aggravation, the Court has carefully weighed the aggravating and mitigating circumstances which it finds to exist in this case, and has given consideration to the recommendation of the jury contained in its advisory verdict, and has taken into consideration all other matters that are properly before the Court, including the pre-sentence report and the arguments of the State and the Defendant. While the mitigating circumstances and the jury's recommendation of life without parole have weighed heav[il]y in the Court's consideration, this Court does now find, and is convinced beyond a reasonable doubt and to a moral certainty that the aggravating circumstances of this horrible, cold-blooded crime as shown and brought before the Court far outweigh the mitigating circumstances shown to the Court, and that said aggravating circumstances outweigh the said mitigating circumstances in all regards and that they are sufficient in both quantity and quality to more than uphold a sentence of DEATH in this case.
Boyd, 542 So.2d at 1267-70 (appendix).
These findings are amply supported by the trial testimony. As we have already graphically detailed, the testimony revealed that Milstead and Boyd planned the robbery, based solely on Boyd's acquaintance with Mrs. Blackmon's daughter, Julie, whom Mrs. Blackmon had forbade Boyd from dating. In order to subdue the couple, Boyd and Milstead armed themselves with loaded pistols, gained entry into the Blackmon home, gagged and blindfolded Mrs. Blackmon, separated the couple, and threatened them with Julie's life, asserting that she had been kidnaped for ransom. Without any resistance, Mr. Blackmon met Boyd's monetary demands, taking $5,000 out of the bank, but the crime spree did not end there.
Boyd and Milstead instead decided to drive the Blackmons to a secluded area, where Boyd took Evelyn Blackmon into the woods and again gagged and blindfolded her. At that point, Boyd hit Mrs. Blackmon with a stick across her forehead and nose, tried to strangle her, and ultimately shot her three times, while she screamed and struggled to stay alive. Boyd and Milstead returned to Fred Blackmon, who had been left in the car only to imagine what horror had befallen his wife. Boyd then had Milstead drive them to a different location, rebuffed Mr. Blackmon's attempt to barter for his life, assaulted him, and shot him twice. This extended period of terror for the Blackmons began around 8:30 a.m., when Boyd and Milstead arrived armed at the Blackmons' house; it did not end until the Blackmons' deaths sometime before 2:00 p.m., when Boyd picked up his girlfriend from work.
That evening, Boyd and Milstead returned to the woods, stuffed Mr. Blackmon's body into the trunk of his car and rolled the car into the river. Later Boyd hacked and broke Mrs. Blackmon's body with an ax in order to stuff her into a metal barrel and rolled the barrel into the river too-presumably, dumping both bodies so that they would never be found, and there would never be any closure for the victims' family. To cap off the extended brutality of these crimes, Boyd went so far as to brag about the murders, commenting to a friend how “coldblooded” he was, and joking that the Blackmons might be “at the bottom of the river.”
Quite simply, the trial testimony detailed a premeditated, heartless, senseless, and gruesome crime-first involving kidnaping, then robbery, then torture, and finally two particularly gruesome murders, over many hours of terror-resulting in the highly aggravated circumstances the trial judge found. FN5 With crimes like this one, that are “carefully planned, or accompanied by torture, rape or kidnapping,” we have often held “that the aggravating circumstances of the crime outweigh any prejudice caused when a lawyer fails to present mitigating evidence.” Dobbs v. Turpin, 142 F.3d 1383, 1390 (11th Cir.1998) (citations omitted); see also Clisby v. Alabama, 26 F.3d 1054, 1057 (11th Cir.1994).
FN5. Boyd claims that the trial court's findings relied on the testimony of his accomplice, Robert Milstead, who perjured himself. However, as we discuss below, Boyd admitted to much of the narrative himself; some of the findings relied on the testimony of witnesses Johnson and Surrett; and to the extent the trial judge relied solely on Milstead's testimony, the trial judge was free to believe Milstead after he had been vigorously cross-examined by Boyd's trial counsel.
Against these heinous crimes, we are obliged to consider the circumstances of Boyd's childhood, as developed at his trial and the post-conviction Rule 32 hearing. Through the testimony of Boyd's sister Cindy and social worker Jan Vogelsang, Boyd established how he and his sisters had been abandoned by an alcoholic, violent father, beaten by an assaultive stepfather, raised by an ineffective mother in an impoverished environment, and looked after by alcoholic, if loving, grandparents.
In evaluating the impact of this evidence, however, we are forced to acknowledge that the mitigating evidence introduced at Boyd's post-conviction hearing was in some measure cumulative of the evidence presented at his original trial. Thus, for instance, while the sentencing judge and the jury did not expressly learn about the violent behavior of the Boyd children's father, Cindy's trial testimony did reveal that their absentee father was a criminal who embarrassed the family, and that Boyd's relationship with his father was on bad terms and with ill feelings, leading Boyd to feel hurt and lonely. Likewise, while the sentencing judge and jury did not hear stories resulting from the grandparents' alcoholism, Cindy did explain at trial how the family had lived with their grandparents off and on, how close Boyd had been with his grandfather, how both grandparents had serious drinking problems, which had a “big effect” on Boyd, and how their grandfather's death “took a terrible toll” on Boyd. And while the sentencing judge and jury did not learn that rats and snakes were observed in Boyd's home, Cindy did in fact tell the jury and the trial judge that the children had grown up in a financially-strapped, impoverished, and “very emotional and unstable” environment. What's more, the post-conviction record on the state of the Boyd household is mixed. While Vogelsang offered that rats and snakes were seen in the house, social services records indicated that the home was in good condition on several occasions-even during a surprise visit.
Cindy also detailed at trial how their sister Susie had epilepsy and was mentally slow and occasionally violent to the point of being physically restrained, which caused Boyd a great deal of confusion, and how Boyd had serious problems at school. Moreover, the sentencing judge unambiguously said that he had heard the “highly emotional testimony” offered by Cindy and Boyd's mother at the trial and “carefully weighed the ... mitigating circumstances” in making his decision.
Thus, much (although not all) of the “new” testimony introduced at the post-conviction hearing would simply have amplified the themes already raised at trial and incorporated into the sentencing judge's decision to override the jury. See Marquard v. Sec'y for Dep't of Corr., 429 F.3d 1278, 1308 (11th Cir.2005) (“There is no reason to believe that added details about Marquard's troubled childhood and substance abuse-which the sentencing court clearly recognized in imposing a death sentence-would have had any effect on the sentence.”); Robinson v. Moore, 300 F.3d 1320, 1347 (11th Cir.2002) (“While the additional mitigation witnesses procured by Robinson's 3.850 counsel could have presented the resentencing jury and trial judge with more details, or different examples, of these aspects of Robinson's life, these aspects of his life were nonetheless known to the resentencing jury and trial judge.”); Grayson v. Thompson, 257 F.3d 1194, 1227-28 (11th Cir.2001) (“Although the graphic picture of Grayson's home life painted at the state habeas proceedings was not presented at trial, the judge did not wholly disregard Grayson's unfortunate background in sentencing him to death. In light of the horrendous nature of this crime, we find no reasonable probability that the sentence would have been different if the judge and jury had possessed detailed information regarding Grayson's history.”).
We recognize, however, that there is one piece of evidence in the post-conviction record that is “new”: that Boyd's stepfather physically abused Boyd and members of his family for years. At the original hearing, Cindy testified only that Boyd had not gotten along with his “strict, demanding” stepfather, and that the “tension between [Boyd and Oliver] became more than they could handle” until Boyd was fifteen years old, and “moved away from [Oliver] completely.” Cindy did not disclose Oliver's physical violence towards Boyd, his sisters, and his mother-testimony that undeniably would have been relevant to Boyd's mitigation case.
There are, nonetheless, several considerations leading us to believe that the evidence of abuse would not ultimately have affected weighing the aggravators and the mitigators. For starters, the record of Oliver's abuse towards Boyd himself is somewhat unclear, suggesting that most of the violence was directed at Boyd's sisters. In fact, Cindy testified that Oliver “wasn't as quick and easy to beat [Boyd] as he was myself and [Susie].” The record is also somewhat contradictory. Vogelsang testified that Oliver frequently hit Boyd on the head with a rifle butt when they went hunting, but Dr. Kirkland referenced only one occasion in which Oliver hit Boyd on the head with a rifle butt. And although Cindy said that Oliver probably beat Boyd about once a week, violence towards Boyd was not documented in any of the many social service records produced, and there is no suggestion in the record that Boyd was ever hospitalized or suffered any brain damage or other permanent injuries as a result of any abuse.
Moreover, while we do not seek to minimize the adversities Boyd has faced, the record, including the evidence introduced at his post-conviction hearing, does not reveal the kind of abuse or deprivation inherent in other cases where Strickland prejudice actually has been found. Thus, for example, in Wiggins, the medical, school, and social services records presented at the post-conviction proceedings revealed that the defendant suffered severe physical and sexual abuse at the hands of his alcoholic mother and various foster parents throughout his childhood, teenage years, and even into early adulthood. 539 U.S. at 516, 123 S.Ct. 2527. Wiggins' mother, a “chronic alcoholic,” frequently left Wiggins and his siblings home alone for days at a time, which forced them to “beg for food and to eat paint chips and garbage.” Id. The mother routinely beat the children for breaking into the kitchen, which she often kept locked. Id. Wiggins's mother had sex with men while her children slept in the same bed. Id. And on one occasion, notably, Wiggins' mother forced the petitioner's hand against a hot stove burner, which resulted in an injury that required hospitalization. Id. Moreover, at the age of six, Wiggins was placed in foster care where he was physically abused by his first and second foster mothers, and his second foster father repeatedly molested and raped him. Id. To escape the abuse Wiggins ran away from a foster home at age sixteen but was returned to one where he was raped again and repeatedly by the foster mother's sons. Id. After leaving the foster care system, Wiggins entered a Job Corps program where he once again was sexually abused, this time by his supervisor. Id.
In Williams v. Taylor, juvenile records presented at the post-conviction proceedings indicated that the petitioner's home had excrement and urine on the floor; “[t]he children were all dirty and none of them had on under-pants”; the parents were intoxicated; and at one point “[t]he children had to be put in Winslow Hospital, as four of them, by that time, were definitely under the influence of whiskey.” 529 U.S. at 395 n. 19, 120 S.Ct. 1495 (quoting the record). In addition, social services records revealed that Williams' parents were “imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents' incarceration (including one stint in an abusive foster home), and then, after his parents were released from prison, had been returned to his parents' custody.” Id. at 395, 120 S.Ct. 1495 (footnote omitted). There also was evidence that Williams was borderline mentally retarded, had suffered repeated head injuries, and “might have mental impairments organic in origin.” Id. at 370-71, 120 S.Ct. 1495.
In contrast, the record here does not contain these kinds of circumstances. There is no evidence that Boyd was ever sexually abused or raped by any parental figures, or by anyone else. Nor were Boyd's parents and stepfather imprisoned for neglect, and although the family participated in extensive social service programs, the children were never placed in foster care. There is also no evidence to suggest that Boyd's father was ever directly violent towards him, and it is unclear how much of his stepfather's violence was directed at Boyd himself.
Furthermore, based on the testimony and social service records presented, the evidence is mixed on the impoverished conditions found in Boyd's home, and showed that Boyd had some family that loved him and cared for him. And even though evidence of good character was introduced, see Vol. 18, at 111-13 (classmate's testimony that Boyd was “sweet,” “real quiet,” and “always nice,” unlike the other boys in the neighborhood); Vol.20, at 527, 535 (testimony of State's expert that Boyd was thought of in prison, including by authorities, as trustworthy, straightforward, and sincere), evidence was also introduced that he did not take advantage of some of the opportunities that had been given to him.
As for his mental health, Boyd's experts testified that other than being emotionally constricted and “possibly” learning disabled, Boyd did not exhibit any evidence of organic brain damage, delusional beliefs, or any mental illness at all. Nor is there any evidence of mental retardation. Indeed, the experts all agreed that Boyd had average to above-average intelligence and never had abused alcohol or drugs.
In short, using Williams and Wiggins as mere guideposts in our analysis, we conclude that Boyd's background-though undeniably sad-does not rise to the level at which prejudice has been found. See, e.g., Grayson, 257 F.3d at 1209, 1230 n. 20 (noting that “the mitigating evidence available in [ Williams] was far more compelling than the evidence presented on behalf of Grayson in his state habeas proceedings” that, among other things, his family life had been “violent and chaotic”); Windom, 578 F.3d at 1251 (holding that a brain-damaged and mentally ill petitioner who had suffered a difficult and impoverished upbringing, during which he was physically abused by his father and bullied by his classmates, did not compare to the “ ‘powerful mitigating narrative’ told by the gruesome circumstances of Wiggins' background”).
In addition, none of the evidence presented by Boyd at the state habeas hearing establishes any additional statutory mitigating circumstances in his favor. See Ala.Code § 13A-5-51.FN6 Nor does the additional mitigating evidence alter the two powerful statutory aggravators that were found by the trial court-that (1) the capital offense had been committed during a robbery and kidnaping, see Ala.Code § 13A-5-49(4); and (2) the capital offense was especially heinous, atrocious or cruel when compared to other capital offenses, see id. § 13A-5-49(8). See Grayson, 257 F.3d at 1226-27 (“[N]one of the evidence developed in connection with the state habeas proceedings served to alter in any way the aggravating circumstance of a heinous and atrocious crime that supported the imposition of the death penalty in this case.”).
FN6. Under Alabama law, the statutory mitigating circumstances are: (1) the defendant has no significant history of prior criminal activity; (2) the capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance; (3) the victim was a participant in the defendant's conduct or consented to it; (4) the defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor; (5) the defendant acted under extreme duress or under the substantial domination of another person; (6) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; and (7) the age of the defendant at the time of the crime. Ala.Code § 13A-5-51. At his original sentencing hearing, the trial judge found one statutory mitigating circumstance: Boyd was 20 years old on the date of the offense. Id. § 13A-5-51(7).
And, in fact, some of the additional mitigating evidence may have been harmful and tipped the scales still further in favor of the death penalty. To begin with, there was testimony that Boyd was taken in by his great uncle, who owned an automobile parts store in New Mexico, but that Boyd was sent home after it was discovered that he was stealing money. See Robinson, 300 F.3d at 1350 (noting that additional mitigating evidence would have allowed evidence of another crime to be admitted); Marquard, 429 F.3d at 1309 (same). Further, the additional mitigating evidence emphasizing physical abuse, neglect, and poverty would have highlighted that Boyd's sister Cindy grew up in the same environment, had probably been beaten more frequently, and still emerged as a successfully employed, law-abiding citizen. Callahan, 427 F.3d at 937 (noting social worker's concession that none of Callahan's siblings had committed violent crimes, which “further reduc[ed] the value of abuse as mitigating evidence”); Grayson, 257 F.3d at 1227 (“The fact that Grayson was the only child to commit such a heinous crime also may have undermined defense efforts to use his childhood in mitigation.”). In other words, even the full mitigating record in this case has its limitations.
At the end of the day, we are required to “reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. And in doing so, we recognize that in brutal torture-murder cases like this one, this Court generally has not found Strickland prejudice, even where the petitioner's counsel may have performed deficiently by failing to uncover and present evidence of troubled and abusive childhoods. In Thompson v. Wainwright, 787 F.2d 1447 (11th Cir.1986), for example, Thompson and a co-defendant had pled guilty to the torture-murder of a woman at a motel after she failed to supply them with sufficient money. Id. at 1448-49. We found Thompson's trial counsel to have been ineffective during his capital sentencing phase because they had failed to investigate the background of the co-defendant-who “was involved with violent motorcycle gangs, had been convicted of intimidating a government witness, and at age fourteen had killed a playmate”-as well as Thompson's background and mental health, which would have uncovered that Thompson had a “troubled” childhood, was “mildly retarded,” had “poor motor skills,” and was “hyperactive ... and difficult.” Id. at 1453. Nonetheless, we concluded that even had this evidence been presented at sentencing, “we are confident that Thompson's sentence would have been the same,” since the sentence “was strongly supported by the aggravating circumstances introduced in the record.” Id.; see also Grayson, 257 F.3d at 1209, 1229-30 (finding that failure to present additional mitigating evidence of a “violent and chaotic” childhood and rampant alcoholism in his family did not prejudice defendant convicted of the torture-murder of 86-year-old woman for money); Francis v. Dugger, 908 F.2d 696, 702-04 (11th Cir.1990) (finding that failure to present additional mitigating evidence of an “impoverished, abused, and socio-economically limited childhood, and ... of his brain dysfunction, diagnosed by his expert as fetal alcohol syndrome,” did not prejudice defendant convicted of torture-murder of government informant).
This calculus is especially true here. As this record has amply established, and as the sentencing judge plainly found, Boyd committed an “extremely wicked and shockingly evil [crime] ... perpetrated with a design to inflict a high degree of pain with utter indifference to the suffering of the victims[, and with a] degree of heinousness and cruelty [that] far exceeds that which is common to all Capital offenses.” See Boyd, 542 So.2d at 1268; cf. Bobby v. Van Hook, --- U.S. ----, 130 S.Ct. 13, 20, 175 L.Ed.2d 255 (2009) (noting that federal courts should not focus on the “ number of aggravating factors,” but rather, “their weight”). Notably, the “new” mitigating evidence-as compared with the evidence considered by the sentencing judge at Boyd's original trial-is somewhat limited. In addition, the entirety of mitigating evidence-which indicated that more of the violence in the house was directed at Boyd's sisters, that there were some positive influences in Boyd's life, and that Boyd was given some opportunities that he failed to take advantage of-is less compelling than the “powerful mitigating narrative” found in other cases. In short, on this record, we conclude that the totality of mitigating evidence here pales when compared to the brutal nature and extent of the aggravating evidence.FN7
FN7. In performing the weighing exercise, as we see it, the dissenting opinion fails entirely to grapple with the significant aggravating circumstances that exist in this case, let alone weigh them against the totality of the mitigators, and as a result, has failed to comply with Strickland. Indeed, the dissenting opinion recognizes the existence of aggravating factors in Boyd's case only in order to point out that there were just two of them, as compared to four in Porter v. McCollum, 558 U.S. ----, 130 S.Ct. 447, 175 L.Ed.2d398 (2009). However, the Supreme Court has expressly cautioned against comparing aggravating circumstances based on their sheer number, but rather, has suggested that we focus on their weight. See Bobby, 130 S.Ct. at 20. And in fact, the aggravating circumstances in Porter were so much less severe than those found here that the Florida Supreme Court had actually stricken the “heinous, atrocious, or cruel” aggravating factor in Porter's case on the ground that the State had not carried its burden on that factor because the “record is consistent with the hypothesis that Porter's was a crime of passion, not a crime that was meant to be deliberately and extraordinarily painful.” Porter, 130 S.Ct. at 449. In sharp contrast, in this case, there is no dispute that Boyd kidnaped, assaulted, and murdered the Blackmons in an unusually “heinous, atrocious, or cruel” manner (a particularly powerful aggravator), and that he did so with painful deliberation.
For this reason and others, this case is easily distinguishable from Porter. Not only are the aggravating circumstances different, but the “new” mitigating evidence introduced during Porter's post-conviction proceedings was far stronger than that found here. As the Supreme Court noted, “evidence presented during Porter's penalty hearing ... left the jury knowing hardly anything about him other than the facts of his crimes.” Porter, 130 S.Ct. at 449. At the post-conviction proceedings, the new evidence described: (1) his heroic military service in “two of the most critical-and horrific-battles of the Korean War,” the trauma he suffered because of it, and “his struggles to regain normality upon his return from war”; (2) his abusive childhood, during which “Porter was his father's favorite target” of violence; (3) his long-term substance abuse; and (4) his impaired mental health and mental capacity, which included “brain damage that could manifest in impulsive, violent behavior.” Id. at 449-54. Notably, the Supreme Court also specifically observed that “evidence of Porter's abusive childhood ... may have particular salience for a jury evaluating Porter's behavior” in this crime of passion against his ex-girlfriend. Id. at 455. Moreover, the Court stressed the significance of Porter's military service, since “[o]ur Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.” Id.
Here, however, the sentencing judge and jury heard far more about Boyd during Cindy's lengthy testimony than just the facts of the crimes. In addition, it is clear that Boyd was not his stepfather's favorite target of abuse, nor, more significantly, has it been suggested that he committed a crime of passion for which his childhood abuse would have been “particular [ly] salien[t].” It is also undisputed that Boyd had not suffered from any brain damage or mental illness, and nothing in the record suggested that Boyd ever served in the military, much less during “the most critical-and horrific-battles of the Korean War,” or would have been entitled to any leniency from that service.
We further note that Boyd's case is also easily distinguishable from the relevant cases relied on by the district court. As we have detailed at some length, the records of mitigating evidence unearthed in both Williams v. Taylor and Wiggins are far more compelling than that presented here. Moreover, in Williams, the penalty phase presentation was far briefer than what occurred at Boyd's trial, and unlike here, Williams' counsel spent the weight of his closing argument telling the jury that it was difficult to find a reason why they should spare Williams' life. 529 U.S. at 369 & n. 2, 120 S.Ct. 1495. Similarly, in Wiggins, after telling the jury during the opening statement that evidence would be presented documenting Wiggins' efforts to overcome the obstacles of a “difficult life” to become a “productive citizen” who had no previous convictions, trial counsel presented no such evidence. 539 U.S. at 515, 123 S.Ct. 2527. Here, by contrast, Boyd's sister Cindy's testimony on Boyd's background filled seventeen pages of transcript. Further, while two statutory aggravating circumstances were found in this case, the Wiggins Court noted “the apparent absence of any aggravating factors in petitioner's background.” 539 U.S. at 525, 123 S.Ct. 2527.
In reaching our decision, we realize that the jury recommended a life sentence for Boyd, and that prejudice “is more easily shown” in jury override cases. Harich v. Wainwright, 813 F.2d 1082, 1093 n. 8 (11th Cir.1987), adopted by en banc court, 844 F.2d 1464, 1468-69 (11th Cir.1988) ( en banc), overruling on other grounds recognized in Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir.1997). However, as Boyd's sentencing judge observed, the jury's penalty phase verdict may have been influenced by the emotional testimony offered by Boyd's sister and mother, rather than by the weight of the mitigating or aggravating circumstances. As a result, it is possible that less may be inferred from the jury's recommendation. But even if we were to take the jury's seven-to-five vote at face value, Boyd still must make a showing of prejudice based both on the aggravating and mitigating evidence. And, given the overwhelming power of the aggravating evidence found here-when compared with the totality of mitigating evidence-Boyd has failed to do so.FN8
FN8. The relevant jury-override cases, where we have found Strickland prejudice, are also distinguishable from Boyd's case. In Porter v. Wainwright, 805 F.2d 930, 937 (11th Cir.1986), the only mitigating evidence presented at Porter's sentencing was Porter's brief testimony, a mention by his lawyer that Porter was employed, and the impeachment of a testifying witness. Here, however, three people besides Boyd testified on his behalf. And, Boyd's sentencing judge heard some mitigating evidence, was not persuaded by it, and expressly noted that his decision to override the jury was based on the fact that the aggravating circumstances “far outweigh[ed]” the mitigating ones. Similarly, in Williams v. Allen, 542 F.3d at 1342-43, the sentencing court's impression of Williams's upbringing was incorrect in some important ways (and the trial court in fact relied on these inaccuracies in making its decision), unlike here, where the sentencing court heard a reduced, but apparently accurate summary of Boyd's sad childhood. In addition, the aggravating evidence in Williams-of a potentially planned car robbery gone awry-is much weaker than in Boyd's case, where two older victims were robbed, kidnaped, and emotionally and physically tortured prior to their deaths, and where the trial judge expressly found the crime to be especially heinous for purposes of a statutory aggravating circumstance.
In light of the brutal nature of these crimes and the specific findings made by the trial court that sentenced Boyd to death, we find no reasonable probability that the mitigating circumstances gathered and presented in connection with Boyd's state habeas proceedings would have altered the balance of aggravating and mitigating factors in this case and changed the outcome of the sentencing proceedings. Although it is always possible that evidence of Boyd's childhood could have caused a sentencing judge to impose a sentence of life rather than death, we cannot honestly find that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Thus, on this record, we conclude that Boyd has failed to establish Strickland prejudice, and in turn, has failed to establish that he received ineffective assistance of counsel during the penalty phase of his trial. See id. at 697, 104 S.Ct. 2052. The state habeas courts properly denied relief on this ineffective-assistance-of-counsel claim.
IV. Juror Misconduct
Boyd has cross-appealed on his claim that he was denied a fundamentally fair trial and reliable sentencing proceeding in violation of the Constitution because an alternate juror on his case, Edward Williams, was a volunteer fireman involved in the search for the Blackmons' bodies and shared information about the search with jury members during deliberations. The district court reviewed Boyd's evidentiary proffer made at the state habeas hearing concerning this claim, and without conducting a full evidentiary hearing, concluded that the State had rebutted the presumption of prejudice Boyd had established. The district court thereafter denied the claim.
Boyd now argues that the district court erred in concluding that it could make findings of fact without hearing the evidence anew. The State responds that the district court's decision was correct, but also says, in the alternative, that Boyd procedurally defaulted on this claim. Because it is not clear from the state habeas record whether Boyd in fact had an opportunity to prove whether the juror misconduct claim could have been raised earlier, we agree with the district court that Boyd's claim should not be considered procedurally defaulted. But, like the district court, we conclude that this claim lacks merit.
The “decision to grant an evidentiary hearing [is] generally left to the sound discretion of district courts.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); see 28 U.S.C. § 2254, R. 8(a) (“[T]he judge must review the answer [and] any transcripts and records of state-court proceedings ... to determine whether an evidentiary hearing is warranted.”). A district court should hold a hearing if there are disputed facts concerning the petitioner's habeas claim, and the petitioner did not receive a full and fair state court hearing, either at trial or in a collateral proceeding. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled in part on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), superceded by 28 U.S.C. § 2254(e)(2); see also Schriro, 550 U.S. at 473, 127 S.Ct. 1933. In other words, “a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro, 550 U.S. at 474, 127 S.Ct. 1933. “Because the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.” Id. The petitioner is not entitled to an evidentiary hearing when his claims are merely “conclusory allegations unsupported by specifics.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).
As we've noted, the underlying claim for which Boyd seeks an evidentiary hearing asserts juror misconduct. As for this claim, “[a] mistrial or new trial is required only if the extrinsic evidence known by the jury posed a reasonable possibility of prejudice to the defendant.” United States v. Ronda, 455 F.3d 1273, 1299 (11th Cir.2006). In order to establish misconduct, “[t]he defendant has the burden to show that the jury has been exposed to extrinsic evidence or extrinsic contacts. Once the defendant establishes that such exposure in fact occurred, prejudice is presumed and the burden shifts to the government to rebut the presumption.” Id.; see also McNair v. Campbell, 416 F.3d 1291, 1307 (11th Cir.2005). The “presumption of prejudice” arises upon a showing of two elements: that an extraneous contact with or by a member of the jury took place, and that the contact was “about the matter pending before the jury.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954).FN9
FN9. “[O]ur sister circuits have suggested that since Remmer, the Supreme Court has abandoned, at least in part, the presumption of prejudice arising from the exposure of the jury to extrinsic evidence.” Ronda, 455 F.3d at 1299 n. 36. We did not ultimately resolve the issue in Ronda because “we conclude[d] that the government ha[d] sufficiently rebutted that presumption.” Id. Likewise, we need not resolve the matter today.
To rebut a presumption of prejudice, the government must show that the jurors' consideration of extrinsic evidence was harmless to the defendant. Remmer, 347 U.S. at 229, 74 S.Ct. 450; Ronda, 455 F.3d at 1299; McNair, 416 F.3d at 1307-08. We consider the totality of the circumstances surrounding the introduction of the extrinsic evidence to the jury. Remmer, 347 U.S. at 229-30, 74 S.Ct. 450; Ronda, 455 F.3d at 1299-1300; McNair, 416 F.3d at 1307. These include: (1) the nature of the extrinsic evidence; (2) the manner in which the information reached the jury; (3) the factual findings in the trial court and the manner of the court's inquiry into the juror issues; and (4) the strength of the government's case. Ronda, 455 F.3d at 1300; McNair, 416 F.3d at 1307-08.
In support of this claim, Boyd presented at the state habeas hearing the affidavits of a juror and an alternate juror. See Supp.Vol.1 of 6 at 106-07 (affidavit of Edward Williams); id. at 109-110 (affidavit of Lori Boozer). The affidavit of Williams, the alternate juror, said in relevant part:
I participated in the search with the Volunteer Fire Department. I was at the scene where they found the taillight lens and some of the chrome off the car on Dark Hollow Road. I was directing traffic, trying to keep people from coming into the scene.
Id. at 106 ¶ 4. And the affidavit of sitting juror Lori Boozer provides:
[Mr. Williams] had been to the scene of the crime when the victims' car was taken out of the river and when the barrel was taken out of the river and had participated in the search for the victims. He was very knowledgeable about the case.... When the testimony came in about the car and the barrel, he talked about seeing the evidence and about having seen the male victim in the back of the trunk of the car. He also had knowledge about the search for the guns. Hearing him, and putting myself in his shoes, I was thinking what if I had been there, what if I had been there, what if I had seen that, could I really have been fair sitting on the jury? This had an effect on me by making me feel like how he felt when he was there at the crime scene. I was affected by this information.
Id. at 109 ¶ 7.
Based on these affidavits, the district court found:
[A]ll information conveyed by alternate juror Williams to juror Boozer had been admitted into evidence through the testimony of several witnesses who were at the scene where Mr. Blackmon's automobile and body were recovered, photographs taken of the scene, and autopsy photographs. (R. Vols. 2-4).
The jury also heard testimony concerning Boyd's statement to the police, in which he described what had happened to each of the Blackmons in some detail, and revealed locations where evidence could be found. See R. Vol. 3, at 526-569. Boyd accompanied law enforcement to assist with the recovery of the murder weapons. Id. at 549-52.
When this court considers the totality of the circumstances surrounding the extrinsic evidence conveyed by Williams to Boozer, and perhaps other, unidentified members of the jury, it finds that the exposure did not create a reasonable probability of prejudice against Boyd. The jury was keenly aware of any information that Williams possibly could have conveyed through his observations by way of numerous eyewitnesses whose testimony from the stand corroborated one another. Finally, the evidence against Boyd was overwhelming. Based upon the foregoing, this court finds Boyd was not prejudiced by Williams's actions, and Boyd was not denied his Sixth Amendment right to trial by a fair and impartial jury.
Doc. 48 at 58.
Based on our independent review of the record, we cannot say that the finding by the district court-namely, that all of the information conveyed by alternate juror Williams to juror Boozer had already been admitted into evidence-was clearly erroneous. Indeed, the most that Boyd has shown (through Boozer's affidavit) is that Williams “talked about seeing the evidence and about having seen the male victim in the back of the trunk of the car,” after the testimony came in that Mr. Blackmon's body was found in the trunk of the car and that Mrs. Blackmon's body was found stuffed in the barrel, and that he had knowledge about the search for the guns. Boozer does not offer anything more about what Williams may have told her, and Williams does not say at all what, if anything, he may have said to the other jurors, nor with whom he may have spoken. We agree with the district court that the State has rebutted all of the evidence that Boyd has submitted in order to establish a reasonable possibility of prejudice, and, has therefore shown that the jurors' consideration of extrinsic evidence was harmless to the defendant. Remmer, 347 U.S. at 229, 74 S.Ct. 450; Ronda, 455 F.3d at 1299; McNair, 416 F.3d at 1307-08.
Moreover, despite Boyd's wholly speculative suggestion that Williams may have seen more or shared more or talked to other jurors, nothing in the record supports this claim. Williams has said nothing about this in his affidavit, nor has Boozer specified anything she may have learned from Williams that she did not hear at trial. Finally, to the extent that Boyd claims the state courts prevented him from developing additional facts, we remain unpersuaded-the state court may have prevented him from introducing the facts he gathered into the record, but it did not prevent him from gathering any facts in affidavit form or otherwise from Williams or Boozer, nor, indeed, from any other juror. On this scant record, we cannot say that Boyd's allegations amount to anything more than the merely conclusory, Blackledge, 431 U.S. at 74, 97 S.Ct. 1621, nor that the district court has abused its considerable discretion in failing to hold a hearing on his claim. Schriro, 550 U.S. at 473-75, 127 S.Ct. 1933. Thus, we affirm the district court's decision on this matter.
V. The State's Knowing Reliance on Perjured Testimony
Boyd has also cross-appealed on his claim that the State knew or should have known that its star witness, and Boyd's accomplice, Robert Milstead, perjured himself when he testified, rendering Boyd's conviction and ensuing sentence unconstitutional. Boyd argues that the district court erred by deeming his claim to be procedurally defaulted, and, by dismissing it on the merits without holding an evidentiary hearing. Even assuming arguendo that the claim is not procedurally defaulted, we agree with the district court that Boyd has failed to sustain his burden.
“Since its decisions in Napue [v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959),] and Giglio [ v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)], the Supreme Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Ventura v. Att'y Gen., Fla., 419 F.3d 1269, 1278 (11th Cir.2005) (quotation and emphasis omitted). Error may occur when “the undisclosed evidence demonstrates that the prosecution's case included perjured testimony and that the prosecution knew, or should have known, of the perjury.” Id. at 1277 (quotations omitted). But if the petitioner “cannot demonstrate specific facts that, if proven, would establish the state's knowledge then there is no necessity for an evidentiary hearing.” Williams v. Griswald, 743 F.2d 1533, 1542 (11th Cir.1984).
The primary evidence Boyd submitted in support of this claim was an affidavit from Milstead, which Boyd proffered to the Rule 32 court following the evidentiary hearing. In several instances, the affidavit-signed by Milstead about eight years after the murders-contradicted Milstead's trial testimony. Thus, for example, Milstead had maintained at trial that Boyd alone had assaulted and shot Mrs. Blackmon, but the affidavit said that Milstead himself assaulted and initially shot Mrs. Blackmon, and that Boyd shot her in order to put her out of her misery. Supp. Vol. 1 of 6 at 34. Similarly, at trial, Milstead had “made [Boyd] out to be the ringleader in the case,” but in the affidavit, admitted that “that was not true [since] I was as guilty as he was.” Supp. Vol. 1 of 6 at 33.
In addition, Milstead had testified at trial that as he and Boyd were dragging Mrs. Blackmon's body in preparation to dispose of it, Boyd said, “I'd like to have some of that.” R793. But in his affidavit, Milstead claimed that “[i]t is not true that Glenn said he wanted ‘a piece of that’ before Evelyn died. He did not say anything of the kind.” Supp. Vol. 1 of 6 at 34. Milstead explained that this particular testimony was given based on the belief that the prosecutor wanted the testimony to be “as bad as possible for Glenn.” Id. This, notably, is the only instance in which Milstead's affidavit attempted to link the State with Milstead's purportedly perjured trial testimony. Otherwise, the affidavit just generally averred that Milstead “understood that [he] was expected to testify against [Boyd] to help convict him in his case and insure that he would receive the death penalty.” Supp. Vol. 1 of 6 at 33.
On this record, the district court found no merit in Boyd's Napue claim, explaining its reasoning this way:
Boyd has not suggested how the state district attorney knew or should have known that Milstead was committing perjury. There is nothing in Milstead's affidavit to indicate that he informed the prosecution that he intended to perjure himself at trial, or that the prosecution had any reason to believe that Milstead would commit perjury. Boyd specifically draws the court's attention to Milstead's statement that he “was given the impression by the district attorney's office that [he] should make it look as bad as possible for Glenn[,]” but that statement certainly does not establish that the state district attorney instructed (or expected) Milstead to commit perjury. Thus, Boyd's claim that the prosecution knew or should have known that Milstead's trial testimony was not truthful is speculative, and would not provide the basis for habeas relief even if the claim were not barred by procedural default. See Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 ... (1993); Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir.2002).
Doc. 40 at 148.
We agree. As the district court observed, Boyd has not presented anything to establish that the prosecution knew or should have known that Milstead was perjuring himself. Boyd says that there is no way he could have known since the state court did not allow him to develop the claim, and that he should be allowed an evidentiary hearing on this claim. But again, Boyd is not entitled to an evidentiary hearing when his claims are merely “conclusory allegations unsupported by specifics.” Blackledge, 431 U.S. at 74, 97 S.Ct. 1621. Boyd has simply asserted that the prosecution “should have known” that Milstead had allegedly perjured himself, but has offered nothing to explain how or why the prosecution “should have known” that. Without any “specifics,” these kind of conclusory allegations are insufficient to entitle him to a hearing on this issue. See id.; Williams, 743 F.2d at 1542.
Moreover, the record that Boyd has presented-based primarily on Milstead's affidavit-contradicts Boyd's claim that the prosecutor should have known about Milstead's purported perjury. As the district court noted, nothing in Milstead's affidavit indicates that he told the prosecution that he intended to perjure himself at trial, or that the prosecution had any reason to believe that Milstead would commit perjury. Boyd specifically has relied on Milstead's statement that he “was given the impression by the district attorney's office that [he] should make it look as bad as possible for Glenn[,]” but, as the district court found, that statement does not begin to establish that the prosecutor instructed (or even expected) Milstead to commit perjury. Rather, it suggests just the opposite-that the prosecution did nothing to induce Milstead's alleged perjury, but, that Milstead offered the testimony on his own accord, based on his own assumptions about what the prosecutor may have wanted him to say, not on anything the prosecutor actually had told him. Because Boyd has failed to “demonstrate specific facts that, if proven, would establish the state's knowledge,” Williams, 743 F.2d at 1542, the district court did not abuse its discretion in failing to hold an evidentiary hearing. Schriro, 550 U.S. at 473-74, 127 S.Ct. 1933. We affirm the district court's denial of this claim too.
VI. Ineffective Assistance of Counsel During the Guilt Phase
Finally, Boyd has cross-appealed on his claim that his trial counsel failed to adequately cross-examine and otherwise impeach the credibility of key state witnesses, including Robert Milstead and the State's forensic experts, and that counsel failed to obtain the assistance of experts. This particular claim-unlike the previous two-was squarely presented to the state habeas court, and squarely rejected because Boyd had failed to satisfy either of the Strickland prongs. The district court likewise denied the claim, concluding that Boyd had not shown that the state habeas court's decision was contrary to or an unreasonable application of Strickland.
On this record, we agree with the district court that there is nothing to indicate that the state habeas court's decision was contrary to or an unreasonable application of Strickland. While we fail to find fault in the state court's analysis of either Strickland prong, we need address only the Strickland prejudice prong because we are “convinced that the prejudice prong cannot be satisfied.” Waters, 46 F.3d at 1510. Quite simply, the record clearly supports the state habeas court's determination that there is no reasonable probability that additional cross-examination, impeachment, or expert testimony would have altered the outcome of Boyd's trial.
Boyd essentially argues that, due to counsel's ineffective treatment of the witnesses at trial, he was prejudiced because: (1) the prosecutor was able to tell the jury that Boyd fractured Mrs. Blackmon's skull pre-mortem and axed her post-mortem; (2) the pre-sentence report said Boyd was the ringleader; (3) the sentencing judge took for granted the fact that Boyd alone was responsible for shooting and assaulting both victims; and, as a result, (4) the sentencing judge found the “heinous, atrocious or cruel” aggravating factor based, in large part, on Boyd's role in striking the victims on the head, shooting each of them, and using an ax to cut Mrs. Blackmon's back and stuff her into a metal drum.
Boyd relies on the post-conviction testimony of Dr. Joseph Burton, a pathologist, and Carl Majesky, a consultant in firearms, to argue that Mrs. Blackmon's face was not assaulted pre-mortem, that the victims were not strangled, that Boyd had not assaulted Mrs. Blackmon's body with an ax nor Mr. Blackmon's head with an oak branch, and that Mrs. Blackmon died quickly as a result of gunshot wounds. Boyd also claims that, given the inconsistencies found in Milstead's statements to the police and in his trial testimony, his counsel could, and should have, dismantled Milstead's testimony.
The state habeas court made the following findings regarding Boyd's efforts at establishing prejudice:
Boyd contends that trial counsel failed to adequately cross-examine and otherwise to impeach the credibility of key state witnesses....
We do not agree with Boyd's assertion that testimony of a pathologist would have changed the outcome of the trial. The testimony given by the State's pathologist at trial essentially corroborated Milstead's version of the injuries sustained by the victims during the incident.
....
Joseph Burton testified for the defense as an expert in forensic pathology at Boyd's Rule 32 hearing. The essence of Burton's testimony was that the victims sustained injuries that caused their deaths but those injuries were not as gruesome as Milstead described. Burton also testified that the absence of blood around the victims' wounds (other than the fatal gunshot wounds) suggested that the wounds were inflicted post-mortem. The intent of this testimony was to negate a finding that the murders were especially heinous, atrocious, or cruel. However, Burton conceded that the length of time that the victims' bodies were underwater made designation of the wounds as anti- or post-mortem inconclusive. (Vol. 18, R. 206.) Therefore, Burton's testimony did not discredit the testimony of the State's pathologist.
....
Regarding the impeachment of Milstead, ... [w]e agree with the State's assessment that the record from the direct appeal reflects that the jury knew that Milstead was testifying in exchange for a sentence of life imprisonment without parole and it knew that Milstead had given many different versions of the crime and had admitted that some statements he had made were not true. Boyd's allegation regarding Milstead ignores the cross-examination and the fact that the jury was informed that Milstead gave different versions of the crime and that he admitted that some of his statements to the police were untrue. These statements were entered into evidence. Trial counsel specifically attacked Milstead's credibility in closing arguments by challenging the jurors to read Milstead's various statements and to compare them to Boyd's statement to determine who was telling the truth. Milstead's testimony was also impeached at trial by the testimony of Sharon Johnson, Boyd's girlfriend, who testified that Milstead told her that he had shot Mrs. Blackmon and that Boyd had shot Mr. Blackmon. Boyd v. State, 542 So.2d 1247, 1254 (Ala.Cr.App.1988). Moreover, Milstead was cross-examined concerning the physical assaults on the victims. During closing arguments, trial counsel pointed out that forensic evidence did not support Milstead's testimony, in particular his horrible testimony about the alleged use of an ax on Mrs. Blackmon's body.
....
Boyd [also] contends that trial counsel failed to seek appropriate expert assistance for the pretrial, trial, and sentencing proceedings.... Dr. Joseph Burton, a pathologist; Carl Majesky, a consultant in firearms; Dr. Louis Mulry Tetlow, a psychologist; and Jan Vogelsang, a social worker, testified at the Rule 32 hearing. While their testimony was intended to be favorable to Boyd, and in some aspects appears to be so on the surface, none of the testimony presented at the Rule 32 hearing from these experts conclusively supports [Boyd's] claims.... In the final analysis, all the testimony was either reconciled with the opinions of the State's experts or its reliability was called into question. For instance, Burton stated that the victims' bodies had stayed underwater too long to determine when specific injuries were inflicted; Majesky's qualifications were questionable and he did not know the effect of decomposition of the victims' bodies; Tetlow and Vogelsang said Boyd's actions were the result of bad decision-making on his part. Boyd has not shown that trial counsel's performance was deficient or that he was prejudiced.... Boyd has not shown that additional testimony would have changed the outcome of the case.
746 So.2d at 384-88, 392.
None of the impeachment, cross-examination, or expert testimony that Boyd now relies on would have affected the claims made at trial. As for the State's claim that Mrs. Blackmon's skull was fractured pre-mortem, this was amply supported at trial by two State witnesses. Dr. Joseph Embry, a forensic pathologist with the Department of Forensic Sciences, testified that while he “could not be sure” that the “numerous fractures” to Mrs. Blackmon's nose and face had occurred anti-mortem, “[t]here was hemorrhage in the wound above her eyebrow,” leading him to “feel confident that [the wounds] occurred before she died.” R439. In addition, Boyd's friend Kenny Surrett testified at trial that “[Boyd] said that Robert [Milstead] hit Evelyn like in the nose and drove her nose back up into her head and that Robert shot her a couple of times in the face and the head.” R741-742. While Dr. Burton attempted to refute this claim at the Rule 32 hearing, he admitted that because her body had been recovered only after being in the water for weeks, the nasal lacerations he would have expected from a pre-mortem strike may not have been apparent. Any argument Dr. Burton could have made, therefore, would not have been significant to Boyd's case. See Windom, 578 F.3d at 1249 (Because “Drs. Pincus' and Beaver's opinions were inconsistent with portions of the record evidence, lacked a medically verifiable foundation, ... and were largely controverted by Dr. Merin's testimony that Windom was not suffering from any mental impairment when he committed the murders[, i]t would ... strain reason to conclude that the doctors' testimony would have had much impact on the judge's choice of sentence.”) (citing Hannon v. Sec'y, Dep't of Corr., 562 F.3d 1146, 1157 (11th Cir.2009) (petitioner not prejudiced by counsel's failure to investigate petitioner's alleged mental health impairment where there was contrary evidence presented by the experts)).
As for Milstead's testimony that Boyd hit Mrs. Blackmon's nose pre-mortem and axed Mrs. Blackmon's body post-mortem, tried to strangle Mrs. Blackmon, was the ringleader, and alone shot and assaulted both victims, this testimony was vigorously challenged at trial, most notably, through numerous attacks on Milstead's credibility. First, Milstead was cross-examined by Boyd's counsel about the different versions of the crime he had described in his police statements. All of Milstead's statements were entered into evidence at trial, so the jury was able to determine for itself how the statements were different. Indeed, Milstead even admitted that some of his statements were not true. And, during the closing argument, Boyd's trial counsel stressed Milstead's inconsistencies:
Milstead, who has given four or five different versions of what happened, all the way from nothing to gangsters from the mafia in white suits made him do it. Don't believe me. You look at those statements he made to the police. You'll have them in the jury room. Read them. Take time to read them. Read his and compare them to Glenn's statement, and then you decide who's telling the truth.
R895.
Trial counsel also challenged Milstead's trial testimony by presenting the testimony of Sharon Johnson. Johnson, Boyd's girlfriend, said at trial that Milstead told her that he shot Mrs. Blackmon and Boyd shot Mr. Blackmon. Boyd, 542 So.2d at 1254. Milstead was thereafter cross-examined about Sharon Johnson's allegations that he shot Mrs. Blackmon.
Milstead was further cross-examined concerning his testimony about the physical assaults on the Blackmons. In particular, Milstead was thoroughly questioned about his testimony that Boyd used an ax to break Mrs. Blackmon's body. Moreover, during closing argument, Boyd's counsel told the jury that the forensic evidence did not support some of Milstead's testimony:
Even from the stand yesterday, Milstead continued to tell a story that was unbelievable. He's had all these months to get his story down. Glenn's statement to you was made the day he was arrested. He said Glenn tried to choke Evelyn. Did you hear any expert testify to anything that showed any attempt to strangle anyone? He said Glenn tried to strangle Fred. Did you hear any testimony from these people who examined those bodies as to any evidence of strangulation or an attempt to do it? He said Glenn was the one who picked up the axe and tried to chop Evelyn Blackmon in two in the back, hit her eight or nine times. He said he made a comment that the axe was too dull. In the first place, that seems ridiculous that the axe wouldn't do it. But what evidence came from the experts concerning any wounds caused by an axe? Do you remember? One cut caused when they put a hole in the barrel after she was in it, not a series of eight or nine whacks with an axe across her back.
R895-96.
Milstead also admitted on the stand that he had pleaded guilty to capital murder and testified for the State against Boyd, in exchange for a sentence of life without parole. Furthermore, the jury was instructed that it was to determine the facts based on the evidence presented at trial.
Not only was Milstead's credibility abundantly attacked during the trial, but Boyd's post-conviction attempts to further disparage Milstead's testimony might well have fallen flat. For example, the qualifications of Majesky, the firearms expert that Boyd hoped could establish that Mrs. Blackmon died quickly, were questionable. As the record shows, Majesky only graduated from high school and had not attended college and was not a member of any scientific or forensic organizations. Moreover, while Boyd sought to use Dr. Burton's testimony in order to challenge Milstead's claim that Boyd had “tried to strangle” Mrs. Blackmon, the autopsy report failed to support this claim, which Boyd's counsel had already pointed out during closing argument. Thus, the expert testimony Boyd has now proffered would not have affected his attacks on Milstead's credibility.
In any event, the jury and the trial judge did not necessarily rely just on Milstead's testimony in finding Boyd guilty, nor in imposing sentence. In fact, Boyd admitted to much of the narrative relied upon, including his admissions to the police that he and Milstead had premeditated the robbery of the Blackmons; that Boyd had escorted Mr. Blackmon to the bank to withdraw money, leaving Mrs. Blackmon alone at the house with Milstead, and had robbed $5,000 from Mr. Blackmon; that Boyd and Milstead had forced the Blackmons into Mr. Blackmon's Cadillac Eldorado and driven them to a secluded area by the river; that Mr. Blackmon had tried to barter for his life; and that Boyd himself had assaulted Mr. Blackmon. Moreover, some of the sentencing judge's findings relied on the testimony of witnesses other than Milstead, such as Johnson's testimony that Boyd had shot Mr. Blackmon, as well as Surrett's testimony that Boyd had told him that Boyd had assaulted and shot Mr. Blackmon as well; that Boyd had bragged about the killings; that Mr. Blackmon had begged for his life; and that Boyd and Milstead had chopped up Mrs. Blackmon in order to be able to stuff her body in the barrel.
Additionally, to the extent the trial judge or the jury relied solely on Milstead's testimony, Milstead was vigorously cross-examined by Boyd's trial counsel, and the jury and judge were free to believe Milstead. See, e.g., United States v. Prince, 883 F.2d 953, 959 n. 3 (11th Cir.1989) (noting that a fact-finder is “free to believe or disbelieve any part or all of the testimony of a witness”); see also United States v. Copeland, 20 F.3d 412, 413 (11th Cir.1994) (“The credibility of a witness is in the province of the factfinder and this court will not ordinarily review the factfinder's determination of credibility.”).
In short, we cannot see how the state habeas court's conclusion-that Boyd has not established a reasonable probability that the deficiencies, if any, of his trial counsel altered the outcome of either phase of his trial-was contrary to or an unreasonable application of Strickland. The state habeas court correctly concluded that none of the impeachment, cross-examination, or expert testimony that Boyd now relies on would have affected the claims the State made at trial. Accordingly, the state habeas court's decision must stand, and we therefore affirm the district court's denial of this claim.
VII. Conclusion
For the foregoing reasons, we REVERSE the district court's decision granting Boyd habeas relief on his penalty phase ineffective-assistance-of-counsel claim, and AFFIRM the district court's denial of Boyd's juror misconduct, perjured testimony, and guilt phase ineffective-assistance-of-counsel claims. Accordingly, Boyd's Petition for Writ of Habeas Corpus must be and is denied, and we REMAND the case with instructions that the district court reinstate Boyd's original sentence.
AFFIRMED in part, REVERSED in part, and REMANDED with instructions.
BARKETT, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority's opinion except for its conclusion that counsel's failure to investigate and present at sentencing the horrific details of Boyd's background did not prejudice Boyd under Strickland. To demonstrate prejudice resulting from ineffective assistance of counsel,
a petitioner need not show that counsel's deficient performance more likely than not altered the outcome of the case.... Rather, where, as here, a petitioner challenges a death sentence, the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.
Putman v. Head, 268 F.3d 1223, 1248 (11th Cir.2001) (citing Strickland v. Washington, 466 U.S. 668, 693-695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Importantly, this court has held that in a jury override case, prejudice is “more easily shown.” Harich v. Wainwright, 813 F.2d 1082, 1093 n. 8 (11th Cir.1987), adopted by en banc court, 844 F.2d 1464, 1468-69 (11th Cir.1988) (en banc), overruling on other grounds recognized in Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir.1997). On this record, where the trial judge overrode the jury's recommendation of a life sentence, there is without question a “reasonable probability” that, had counsel presented the wealth of testimony adduced at Boyd's state habeas proceedings regarding Boyd's turbulent and abusive childhood, such evidence would have altered the balance of aggravating and mitigating factors relied upon by the trial judge in overriding the jury's sentence.
In the recent case of Porter v. McCollum, 558 U.S. ----, 130 S.Ct. 447, 454, 175 L.Ed.2d 398 (2009), the Supreme Court reversed this court's judgment that, among other things, petitioner Porter had not established prejudice under Strickland arising out of his counsel's failure to present evidence of his background to the jury or the trial court. In particular, the Court noted that neither the jury nor the trial judge had heard about:
(1) Porter's heroic military service in two of the most critical-and horrific-battles of the Korean War, (2) his struggles to regain normality upon his return from war, (3) his childhood history of physical abuse, and (4) his brain abnormality, difficulty reading and writing, and limited schooling. See Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“ ‘[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background ... may be less culpable’ ”).
The Court next noted that “[h]ad counsel been effective, the judge and jury would have learned of the kind of troubled history we have declared relevant to assessing a defendant's moral culpability.” Id. (citation and quotation omitted). Finally, the Court concluded that “had the judge and jury been able to place Porter's life history on the mitigating side of the scale and appropriately reduced the ballast on the aggravating side of the scale [based on the Florida Supreme Court's subsequent conclusion that the heinous, atrocious, and cruel aggravator was inappropriate], there is clearly a reasonable probability that the advisory jury-and the sentencing judge-would have struck a different balance.” Id. At Porter's sentencing, the trial judge had found no mitigating circumstances and three valid aggravating circumstances-one more than in Boyd's case-including that Porter had killed in a cold, calculated and premeditated manner, see Porter v. Att'y Gen., 552 F.3d 1260, 1262 (11th Cir.2008).
Although the majority in this case finds that the record is “mixed” with respect to some of the details of Boyd's childhood abuse, poverty, and neglect, the record is clear that neither the jury nor the trial judge ever heard-and therefore had no opportunity to evaluate or consider- any of these details. FN1 As in Porter, the trial court in Boyd's case heard nothing about (1) the severe abuse endured by Boyd, his mother, and his sisters, including one mentally disabled sister, at the hands of their stepfather;FN2 (2) the extreme poverty and neglect suffered by the children, which included rats and snakes crawling through their belongings and eating dirt for nutrients; (3) Boyd's emotionally unstable mother, who was unable to care for or protect her children and who attempted suicide when Boyd was eleven; (4) Boyd's alcoholic father destroying the house in a rage when he was home from prison, hitting his own parents, and abusing Boyd's mother; and (5) Boyd's alcoholic grandparents crawling through the house drunkenly on their knees, beating each other in front of the children, and endangering Boyd and his sisters' lives by, among other things, forcing Boyd's twelve-year-old sister to drive the family car with six-year-old Boyd in it.FN3
FN1. In an effort to minimize the impact of counsel's failure to present evidence of Boyd's troubled background, the majority emphasizes that some of the evidence regarding Boyd's childhood is inconsistent. For example, the majority points out that while one expert testified that Boyd's stepfather frequently hit Boyd on the head with a rifle butt, another expert referenced only one occasion in which he did so. However, the mere fact that one expert mentioned only one rifle incident is not inconsistent with, nor does it undermine, the totality of the evidence adduced regarding the horrendous abuse inflicted upon Boyd and his sisters. Similarly, the majority notes that the abuse suffered by Boyd, estimated by his sister Cindy to have occurred about once a week, is not documented in any public records. However, I am aware of no requirement that testimony regarding abuse must be confirmed in public records before it may be weighed by a judge or jury. Moreover, as the Supreme Court recently pointed out, it is unreasonable to “discount entirely” mitigating evidence, simply because some of it might have been called into question. See Porter, 130 S.Ct. at 455 (“While the State's experts identified perceived problems with the tests that [Porter's mental health expert] used and the conclusions that he drew from them, it was not reasonable to discount entirely the effect that his testimony might have had on the jury or the sentencing judge.”).
FN2. I find little relevance to the fact that much of Boyd's stepfather's abuse was directed at Boyd's sisters. Evidence of such severe abuse directed at his sisters is without a doubt relevant mitigating evidence with respect to Boyd himself. It simply strains credulity to suggest that a child is unaffected by his siblings' experiences. Cf. Porter, 130 S.Ct. at 449 (describing the abuse suffered by Porter, including that he “routinely witnessed his father beat his mother, one time so severely that she had to go to the hospital and lost a child”).
FN3. A fair reading of this record belies the majority's assessment that much of the new mitigation evidence introduced at the post-conviction hearing “would simply have amplified the themes already raised at trial and incorporated into the sentencing judge's decision to override the jury.” That the jury learned that Boyd's grandparents were “drinkers” is a far cry from the unintroduced facts that they forced Boyd's twelve-year old sister to drive the family home from Florida to Alabama, with six year old Boyd beside her, they routinely beat each other in front of the children, crawled through the house on their knees drunkenly, or that his grandfather repeatedly set the house on fire. Nor do I agree that the jury's learning that Boyd's father was a “criminal who embarrassed the family” is “cumulative” of the unintroduced fact that Boyd's father was a violent alcoholic, who destroyed the house in a rage when he was home from prison and sometimes abused Boyd's mother and his own parents. Finally, that the jury learned Boyd grew up in an impoverished setting pales in comparison to the unintroduced facts that rats and snakes crawled through the children's belongings, that the children ate dirt when there was not enough food, and that Boyd's mother was unstable and unable to provide for her children, at one point attempting suicide when Boyd was eleven.
Had this evidence been introduced, it is reasonably probable that the sentencing judge-who found only two aggravating circumstances and also took into account as mitigating circumstances Boyd's young age and the fact that he assisted law enforcement to some extent in locating the bodies-would have implemented the jury's recommendation of life without paroled. I therefore respectfully dissent as to this issue.
2 Arthur Lee Jones 21 March 1986 electrocution William Hosea Waymon.
3 Wayne Ritter 28 August 1987 electrocution Edward Nassar.
4 Michael Lindsey 26 May 1989 electrocution Rosemary Zimlich Rutland.
5 Horace Dunkins 14 July 1989 electrocution Lynn McCurry.
6 Herbert Richardson 18 August 1989 electrocution Rena Mae Callins.
7 Arthur Julius 17 November 1989 electrocution Susie Bell Sanders.
8 Wallace Thomas 13 July 1990 electrocution Quenette Shehane.
9 Larry Heath 30 March 1992 electrocution Rebecca Heam.
10 Cornelius Singleton 20 November 1992 electrocution Ann Hogan.
11 Willie Clisby 28 April 1995 electrocution Fletcher Handley.
12 Varnell Weeks 12 May 1995 electrocution Mark Batts.
13 Edward Horsley, Jr. 16 February 1996 electrocution Naomi Rolon.
14 Billy Wayne Waldrop 10 January 1997 electrocution Thurman Donahoo.
15 Walter Hill 2 May 1997 electrocution Willie Mae Hammock, John Tatum, and Lois Tatum.
16 Henry Hays 6 June 1997 electrocution Michael Donald.
17 Stephen Allen Thompson 8 May 1998 electrocution Robin Balarzs.
18 Brian K. Baldwin 18 June 1999 electrocution Naomi Rolon.
19 Victor Kennedy 6 August 1999 electrocution Annie Laura Orr.
20 David Ray Duren 7 January 2000 electrocution Kathleen Bedsole.
21 Freddie Lee Wright 3 March 2000 electrocution Warren Green and Lois Green.
22 Robert Lee Tarver, Jr. 14 April 2000 electrocution Hugh Sims Kite.
23 Pernell Ford 2 June 2002 electrocution Willie C. Griffith and Linda Gail Griffith.
24 Lynda Lyon Block 10 May 2002 electrocution Opelika Officer Roger Lamar Motley.
25 Anthony Keith Johnson 12 December 2002 lethal injection Kenneth Cantrell.
26 Michael Eugene Thompson 13 March 2003 lethal injection Maisie Carlene Gray.
27 Gary Leon Brown 24 April 2003 lethal injection Jack David McGraw.
28 Tommy Jerry Fortenberry 7 August 2003 lethal injection Ronald Michael Guest, Wilbut T. Nelson, Robert William Payne, and Nancy Payne.
29 James Barney Hubbard August 5, 2004 lethal injection Lillian Montgomery.
30 David Kevin Hocker 30 September 2004 lethal injection Jerry Wayne Robinson.
31 Mario Giovanni Centobie 28 April 2005 lethal injection Moody police officer Keith Turner.
32 Jerry Paul Henderson 2 June 2005 lethal injection Jerry Haney in Talladega and for accepting $3,000 from Haney's wife for the killing.
33 George Everett Sibley, Jr.
(common-law husband of
Lynda Lyon Block) 4 August 2005 lethal injection Opelika Officer Roger Lamar Motley.
34 John W. Peoples, Jr. September 22, 2005 lethal injection Paul Franklin, Judy Franklin, and Paul Franklin, Jr.
35 Larry Eugene Hutcherson October 26, 2006 lethal injection Irma Thelma Gray
36 Aaron Lee Jones May 3, 2007 lethal injection Carl Nelson and Willene Nelson
37 Darrell Grayson July 26, 2007 lethal injection Annie Laura Orr
38 Luther Jerome Williams August 23, 2007 lethal injection John Kirk
39 James Harvey Callahan January 15, 2009 lethal injection Rebecca Suzanne Howell
40 Danny Joe Bradley February 12, 2009 lethal injection Rhonda Hardin
41 Jimmy Lee Dill April 16, 2009 lethal injection Leon Shaw
42 Willie McNair May 14, 2009 lethal injection Ella Foy Riley
43 Jack Trawick June 11, 2009 lethal injection Stephanie Gach
44 Max Landon Payne October 8, 2009 lethal injectionBraxton Brown
45 Thomas Warren Whisenhant May 27, 2010 lethal injection Cheryl Lynn Payton
46 John Forrest Parker June 10, 2010 Elizabeth Dorlene Sennett
47 Michael Jeffrey Land 41 M August 12, 2010 Candace Brown
48 Holly Wood September 9, 2010 Ruby Lois Gosha
49 Phillip D. Hallford November 4, 2010 Charles Eddie Shannon
50 Leroy White January 13, 2011 Ruby White
51 William Glenn Boyd March 31, 2011 Fred and Evelyn Blackmon
{FINDING/ORDER BY TRIAL JUDGE }
{C) IMPOSITION OF SENTENCE . . . }
“No Victim Impact Reports were mailed out in this case due to the short time between the jury verdict and date of sentencing. However, reports indicate that this was a heinous crime involving kidnapping, robbery, and capital murder. The death penalty was being sought for both Milstead and Boyd until Milstead elected to plead guilty and testify at the trial of Glenn Boyd.
“Both victims in this case were traumatized with a stick before being shot multiple times. Mrs. Blackmon was bound and gagged before being hit in the face and then shot. The families suffered great emotional stress over not only the abduction and murders of the Blackmons but also suffered additionally through the several additional days that it took to recover the bodies. Through decomposition of the bodies, identification then had to be made through dental and other medical records.
A. The Guilt Phase of the Trial
1. Boyd's Direct Appeal