In Re Shonelle Andre Jackson V State of Alabama CR04-0096 Supreme Court AL - 2004.10.20 Petition For Writ of Mandamus 2 of 3 - 400pp

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(Ala. Crim. App. 1993) (capital conviction and death sentence reversed in state postconviction where petitioner presented evidence about a trial witness found in Taylor Hardin medical records during Rule 32 proceedings).
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C. Records from State Agencies Involved in the Investigation and Prosecution of Mr. Jackson The State also objects to Mr. Jackson's request for records from Montgomery Fire Department, Montgomery Violent Crimes Task Force, Alabama Department of Forensic Sciences, and the Alabama Department of Pardons and Paroles, arguing that Mr. Jackson has "not explained" what documents these agencies possess, that he has not alleged what the records specifically reveal, or how these records relate to the remaining claims before the court. This Court should reject the State's arguments.
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Mr. Jackson has explained that these agencies each possess documents related to Mr. Jackson's trial. Each of these agencies was involved in, and thus possesses information about, the State's investigation of Shonelle Jackson, Eric Williams, Antonio Barnes and Christopher Rudolph in the murder of LeFraich Moore. In his petition, Mr. Jackson has alleged that the State has suppressed several items, including information obtained from Patrick Stinson, Roderick Crawford and Latrice Walker, as well as the results of testing and examination of the evidence. Upon information and belief, the files of these agencies will likely contain the suppressed information, or lead to other discoverable information. At this point, Mr. Jackson cannot, and indeed is not required. to articulate precisely what is in the records in order to get discovery. As the Land Court recognized, "[i]f 8
defendants were required to make a positive showing that sealed documents in fact contained exculpatory material, Brady violations would come to the attention of appellate courts only
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by the merest happenstance of confidential material falling into a defendant's hands." Land, 755 So. 2d at 854 (citing United States v. Streit, 962 F.2d 894, 900 (9"' Cir. 1992)). Without access to the information contained in these files, Mr. Jackson will be unable to prove his allegations. D. Physical Evidence Introduced into the Record at Trial Mr. Jackson has also alleged that his trial counsel were ineffective for failing to challenge the State's ballistics evidence and obtain a firearm and projectile expert to assist counsel in order to establish that the bullets that caused Mr. Moore's death could have been fired by either the 9 mm or the .357 gun carried by the co-defendants, and thus that Mr. Jackson was not responsible for Mr. Moore's death. Amended Petition, at 11-12, 24. This discovery request is opposed by the State solely based on its argument that the claim is not cognizable: "Because Jackson's claim is due to be dismissed, he has not and cannot show "good cause" for access to the bullet and shell casing." State's Response, at 10. As articulated in Petitioner's Response to the State's Motions to Dismiss, the State's argument that this claim should be dismissed due to lack of a material issue of law or fact because counsel elicited such testimony on cross-examination should be rejected as an argument about the merits of the claim. Id. at 10-11, Mr. Jackson has alleged facts, which, if proven true, would entitle him to relief. That the State believes he may not ultimately
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succeed on the merits is not relevant to whether has sufficiently pled the claim and shown "good cause" for discovery. Without access to the bullet and shell casing - in order that it may be evaluated and independently tested - Mr. Jackson will be unable to prove that trial counsel were ineffective in this regard. E. Court Records Finally, Mr. Jackson has requested records from the Montgomery County Juvenile, Family, District, Circuit and Municipal courts. In response, the State contends that Mr. Jackson is not entitled to these documents because he has "not explained" what documents these agencies possess, that he has not alleged what the records specifically reveal, or how these records relate to the remaining claims before the court. State's Response, at 15. However, Mr. Jackson has explained both what documents these agencies possess and how
these documents are related to claims before the Court. In his petition, Mr. Jackson alleged that his trial counsel failed to file a timely Youthful Offender Application and present evidence in support of this motion to the Court. Amended Petition, at 15-16. Additionally, counsel failed to challenge the underlying
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convictions which formed the basis for the aggravating circumstance against Mr. Jackson that "the capital offense was committed by a person under sentence of imprisonment." (C. 174.) In order to prove these claims, Mr. Jackson needs access to all of his court files, specifically including his juvenile records (which are not public records). These records are in the possession of the Montgomery County Juvenile Court system. Thus. Mr. Jackson
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needs a court order directing the Montgomery County courts to allow him access to his files. It is not true, as the State contends, that Mr. Jackson must show (even if he could) specifically what these records reveal in order to show "good cause" for the records. Land, 775 So. 2d at 854. Without access to records from the Montgomery County Juvenile, Family, Municipal, District and Circuit courts, Mr. Jackson will be unable to prove that trial counsel were ineffective in this regard. Discovery requests of prosecution files are routinely granted in death penalty Rule 32 cases across the state. See. e.g.. Land, 775 So.2d at 850 (trial court ordered discovery of district attorney files); Hooks v. State, 822 So. 2d 476, 82 (Ala. Crim. App. 2000) (upholding circuit court order granting Rule 32 petitioner discovery of prosecution's files). In a case involving the Montgomery County District Attorney's office - an office with a history of
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suppressing evidence in death penalty cases - discovery of such records is even more critical. In this case, Mr. Jackson has alleged "good cause" for discovery of the prosecution files, and therefore his motion for discovery should be granted in its entirety. III. INSTITUTIONAL RECORDS In his Motion for Discovery of Institutional Files, Mr. Jackson requested numerous records that are necessary to prove that his trial counsel were ineffective at both the guilt/innocence and penalty phases of the trial. These requested documents include not only Shonelle Jackson's records, but records on his father, Louis Taylor, and his mother, Marilyn Jackson as well. The State agrees that Mr. Jackson has established "good cause" for a
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number of these records, but.objects to discovery of the following records: 1) records from the Alabama Board of Pardons and Paroles pertaining to Shonelle Jackson; 2) any and all records pertaining to Louis Taylor, including records from the Department of Corrections, the Montgomery County Detention Facility, the Montgomery County Jail, Alabama Board
of Pardons and Paroles, the Montgomery Police Department and the Montgomery County Sheriff's Department; and 3) mental health records pertaining to Marilyn Jackson. Because Mr. Jackson has shown "good cause" for these records, the State's motion should be denied. A. Records of the Alabama Board of Pardons and Paroles The State claims that Mr. Jackson is not entitled to records of the Alabama Board of Pardons and Paroles because 1) he has not "explained" what documents this agency possesses, 2) he has not alleged "what the records specifically reveal," or 3) how these records are relevant to the claims in the petition. State ofAlabaina's Response to Jackson's Motion for Discovery or Institutional Records, Files, and Information Necessary to a Fair Rule 32 Evidentiary Hearing, at 10. This Court should reject the State's arguments. First, upon information and belief, the Alabama Board of Pardons and Paroles has files on Mr. Jackson. That this is true is evidenced by the fact that the Alabama Board of Pardons and Paroles prepared the pre-sentence report in this case. (S.R. 1.) Second, the State's argument that Mr. Jackson has not alleged "what the records specifically reveal," was explicitly rejected by the Alabama Supreme Court in Land: "Until the documents are actually produced, it is impossible to determine whether they contain evidence of mitigating
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circumstances." Land, 755 So. 2d at 854. Moreover, Mr. Jackson has asserted in his petition that counsel were ineffective for failing to investigate and present mitigating evidence of Mr. Jackson's "life of instability,""diminished mental capacity," and evidence that "he has always been a hard worker who has done well in structured environments such as correctional facilities."' Amended Petition, at 42, 44. Records of the Alabama Board of Pardons and Paroles would "corroborate[] the testimony ... of family members and friends," regarding the mitigation in this case. Amended Petition, at 37. These records are not only relevant, but essential to Mr. Jackson's ability to prove that his counsel were ineffective in this regard. The State agrees that this portion of Mr. Jackson's ineffectiveness claim is sufficiently pled. State ofAlabama's Answer to Jackson 's Amended Petition for Relieffrom Conviction and Death Sentence, at 53. Mr. Jackson has shown "good cause" for these records because he has alleged facts which, if proven true, would entitle him to relief. See Land, 775 So. 2d at 855 (holding that petitioner was entitled to discovery of records of Board of Pardons and Paroles to prove that counsel was ineffective at penalty phase of capital trial). Without access to the records of the Alabama Board of Pardons and Paroles, Mr. Jackson will be
unable to prove his claim.
'Such evidence is undoubtedly mitigating. See Wiggins v. Smith, 123 S. Ct. 2527, 2542 (2003) (ineffective assistance of counsel where counsel failed to investigate and present evidence of client's "troubled history"); Williams v. Taylor, 529 U.S. 362, 395-96 (2000) (counsel ineffective for failing to uncover and present evidence of client's "nightmarish childhood," borderline mental retardation, and good conduct in prison); Skipper v. South Carolina, 476 U.S. 1 (1986) (capital defendant must be permitted to introduce evidence of good behavior while incarcerated during penalty phase of trial). 13
B. Louis Taylor's Records The State argues that Mr . Jackson is not entitled to discovery of any of Louis Taylor's records because Mr. Jackson " has other available means with which to prove his allegations, concerning his father ," and thus such records are not necessary for Mr . Jackson to prove his claims . State 's Response , at 7. There is no legal basis for the State's opposition to this
discovery request. First, it is irrelevant whether the State can suggest a different method by which Mr. Jackson can prove his claims . Because the State is not conceding the facts related to this part of Mr. Jackson ' s infectiveness claim,' it is inappropriate for the State to dictate how it believes Mr . Jackson should ultimately prove the truth of his allegations. More importantly, the State ' s argument is' unsupported by law ; there is no rule or case that suggests that the Court can deny a Rule 32 petitioner's discovery request simply because a lawyer for the State thinks there are other ways to prove the claim. In addition, the State's position about how Mr . Jackson should prove his claim is based on a myopic view of how to investigate and prove mitigation . Mr. Jackson's father's
records are necessary not only to prove the claims in the petition , but also to discover additional mitigation evidence that has yet to have been uncovered. See ABA Guidelines for the A ointment and Performance of Defense Counsel in Death Penalty Cases, Commentary to 10.7 n.215 (Revised Ed. Feb. 2003) ( "Records may document events that neither the
'See State 's Answer, at 54 (`This claim is denied."). 14
client nor family members remember."); see also Williams v. Taylor, 362 U.S. 362, 395 n. 19 (2000) (relying on social worker's descriptions of the Williams home that could not have
been provided by the client, who was too young, and the adult family members, who were too intoxicated, to recall the scene). Mr. Jackson's request is not unduly burdensome. Mr. Jackson has alleged that his father has had interaction with all of the identified agencies. As the Alabama Supreme Court
recognized in Land: if these facilities have no documents that relate to Land's claims, they can simply say so. Merely determining whether such documents exist would not unduly burden the State." Land, 775 So. 2d at 855. Finally, by suggesting that Mr. Jackson is entitled to prove the facts related to his father (albeit by "other available means"), the State is conceding the relevancy of the
information Mr. Jackson is seeking, and thus the fact that Mr. Jackson has shown "good cause" for these records. The State's argument to the contrary should be rejected. C. Marilyn Jackson 's Mental Health Records The State argues that Mr. Jackson is not entitled to discovery of his mother's mental health records, maintained by the Alabama Department of Mental Health and Mental Retardation and/or the Department of Rehabilitation because the request is overly broad, not relevant to his claim of mental retardation, and can be provided by Ms. Jackson. State's Response, at 9. This Court should reject the State's arguments. First, Mr. Jackson has not made an "overly broad" request. Mr. Jackson has requested
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any mental health records pertaining to his mother in the possession of a state agency, such as the Alabama Department of Mental Health and Mental Retardation, or a state psychologist or psychiatrist. These records are relevant to his claim that he is mentally retarded and
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therefore exempt from execution, see Atkins v. Vir inia, 526 U.S. 304 (2002). Amended Petition, at 67-69, and his claims that trial counsel failed to present evidence about Mr. Jackson's "diminished mental capacity," as well as evidence that "Ms. Jackson's own mental impairments prevented her from providing appropriate and meaningful guidance to Shonelle." Amended Petition at 42-43. Such files are routinely obtained in the course of a mitigation investigation; consequently, without such files it will be "practically impossible" for Mr. Jackson to show that his lawyers were ineffective for failing to obtain these records and present the evidence contained therein. Land, 755 So. 2d at 855. Moreover, the State's argument that Ms. Jackson's mental health records are "not
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relevant to Jackson's claim of mental retardation," because "Jackson either meets the standards for mental retardation or he doesn't," State's Response, at 9, bespeaks an utter lack of understanding about what mental retardation is, or how a diagnosis of mental retardation is reached. See, e.g., Mental Retardation: Definition. Classification, and Systems of Supports, American Association on Mental Retardation, 10`h ed. 2002, at 123-41 (family
biomedical history is critical to etiology of mental retardation in particular individual). Finally, to the extent that Mr. Jackson is able to obtain some of these records without obtaining a court order, that will be done. However, upon information and belief, Ms.
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Jackson received training through a program run by the State Department of Mental Health and/or the Department of Rehabilitation, both of which require a court order to obtain records. Obviously, if these agencies do not have any mental health records on Ms. Jackson,
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"they can simply say so. Merely determining whether such documents exist does not unduly burden the State." Land, 775 So. 2d at 855. Mr. Jackson has shown "good cause" for access to these records because he has alleged facts, which, if prove true, entitle him to relief. See Land, 775 So. 2d at 852. Without access to Marilyn Jackson's mental health records, Mr. Jackson will be unable to prove both his Atkins claim, as well as his ineffectiveness claim. FOR THESE REASONS, as well as the reasons articulated in his previously filed motions, Mr. Jackson requests that this Court grant him the discovery to which he is entitled and afford him the opportunity to prove his facially meritorious claims. If the Court denies Mr. Jackson's discovery requests, he will be prevented from developing and proving the claims in his petition. Respectfully Submitted,
BryanjA. Stevenson Angela L . Setzer Equal Justice Initiative of Alabama 122 Commerce Street Montgomery , AL 36104
((- L^
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(334) 269-1803
Dated : June 2 5, 2004
Counsel for Mr. Jackson
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CERTIFICATE OF SERVICE I certify that on June 25, 2004, I served a copy of the attached motion by first class
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mail, postage pre-paid, and properly addressed to: Jeremy McIntire Office of the Attorney General Alabama State House 11 South Union Street Montgomery, AL 36130
Ang^la L. Setzer
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IN THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR MONTGOMERY COUNTY MONTGOMERY , ALABAMA
SHONELLE JACKSON, PLAINTIFF, CRIMINAL ACTION CASE NO. CV-97-2300
STATE OF ALABAMA, DEFENDANT.
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-------------- / 10 11 12 13 14 15 16 APPEARANCES 17 18 ON BEHALF OF THE STATE: JEREMY McINTIRE,.ESQUIRE ASSISTANT ATTORNEY GENERAL MONTGOMERY, ALABAMA ON BEHALF OF MR. JACKSON: BRYAN A. STEVENSON, ESQUIRE ANGELA L. SETZER, ESQUIRE BEFORE: THE HONORABLE TRACY S. McCOOEY CIRCUIT JUDGE MONTGOMERY COUNTY COURTHOUSE COURTROOM 3-B COURT REPORTER'S TRANSCRIPT OF PROCEEDINGS OCTOBER 13, 2004
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Vicki
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PROCEEDINGS THE COURT: Mr. Jackson, how are you?
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MR. JACKSON: Okay. THE COURT: Okay. This is Shonelle Andre Jackson versus State of Alabama, CC-97-2300. If I could get the attorneys -- before we get started, we have Mr. Jackson in the courtroom, but if I could get the lawyers to stand up and state their name and who they represent for the Record. MR. McINTIRE: Jeremy McIntire with the Attorney General's office, Your Honor. THE COURT: Thank you. MS. SETZER: Angie Setzer on behalf of Shonelle Jackson. MR. STEVENSON: Bryan Stevenson on behalf of Shonelle Jackson. THE COURT: Okay. All right. I know we've got a couple of things we've got to do. The first thing, I think that we had an amended petition on a Rule 32 that had been filed and then responses to that. So I guess that's what we need to take up first. And I know there were all kinds of things with it about discovery and whether we were going to have a hearing,
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Vicki H. Clark Official Court Reporter (334) 832-1365
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et cetera, et cetera.
So I guess let me -- Jeremy, do you want
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to start for us? MR. McINTIRE: Your Honor, in response to Mr. Jackson' s amended petition, the State filed three motions to dismiss, a motion to dismiss to procedurally barred claims, a motion to dismiss insufficient claims filed and a motion to dismiss claims under 32.7(d). And the State would be happy to address any of the individual arguments within those motions. If the Court
wants to ask about THE COURT: Okay. MR. McINTIRE: I think the motions themselves are pretty clear --THE COURT: Right. And I've read -MR. McINTIRE: -- as to why those motions should be barred or dismissed. THE COURT: -- all of those that you've filed. I guess probably the easiest way is, Bryan -- and I've read y'all's response. I assume that's what we need to take up first.
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I know there's also a motion to have a mental evaluation done. There's discovery requests. There's a bunch of stuff. So I don't
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we need to start. But I guess we need
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to start with that rule -- Amended Rule 32 Petition. MS. SETZER: Your Honor, we have discovery motions pending as well which -THE COURT: And there's a lot of discovery motions that y'all had that you had filed. And I think y'all's position was, hey, we're not even ready to argue and hear this because we still have a lot of discovery that we have to get done is what I got from g'all's motion. MS. SETZER : Right. THE COURT: Is that correct? MS. SETZER : We filed motions for discovery on records and files that are necessary for
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Mr. Jackson to prove the claims in his petition.

So THE COURT: Yes. I mean , I think there were
all kinds of things, like records y'all need from corrections et cetera. MS. SETZER : Correct, correct. THE COURT: So let's take up first -and different mental health records,
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MR. McINTIRE : Your Honor, if I might. THE COURT: Yes.
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MR. McINTIRE: I think that the motions for discovery will rest largely on what claims this
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Court ultimately dismisses hearing -THE COURT: Right.
or decides from the
MR. McINTIRE: I think it would be best to handle the motions -- the State's motions to dismiss first so that then we can understand what claims are going to be before this Court for any evidentiary hearing and then move to discovery motions. THE COURT: And I know ---- I mean, the only hearing this Court's done -- I mean, we had the hearing about the statement that was given to the officer, you know, that the Supreme Court or the Court of Criminal Appeals remanded back for us to have a hearing; which we've done that. That's the only hearing that I've actually had on this case regarding Mr. Jackson. And so, anyway -all right. Let's start there because, like I said, I am -- you know, I'm not the trial judge that tried this case, so I'm not familiar with this case except for the transcript. But I wasn't the actual trial judge.
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So, anyway, why don't we start there?
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Jeremy, let's start with the first one that y'all have and let you make your argument, and then
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I'll let y'all respond. MR. McINTIRE: The first motion to dismiss is the State's motion to dismiss procedurally barred claims. As this Court is aware, under Rule 32.2(a), certain claims that could have been raised or were raised at trial or could have been raised or were raised on appeal are barred from the proceedings. The State has an extensive list of claims in the amended petition that are subject to the usual bars of Rule 32.2(a), and we would simply submit that these claims fit under that category; that they either could have been raised on appeal or were raised on appeal or they could have been raised at trial or they were raised at trial and, therefore, are not properly before this Court and are due to be procedurally barred. THE COURT: Okay. And, Bryan, what's y'all's problem with the ones that Jeremy is saying need to go because they could have been raised and weren't? MS. SETZER: Well, Your Honor, first, I think we'd like to -- I'd just like to mention
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1 that we believe that before that Your Honor dismisses any of these claims or decides whether 3 4 5 6 7 to hear them, we would need to obtain discovery and fully develop the evidence in that -- in the case before Your Honor decides to dismiss any of the claims. With regards to Mr. Mclntire's position that these claims are procedurally barred, specifically -- well, many of the claims were raised on direct appeal, and we believe that this Court should not dismiss them. Although they were raised on direct appeal, it's necessary for this Court to look at those claims when assessing trial counsel's effectiveness and whether Mr. Jackson's rights were violated in this case. Two claims, specifically, the juror misconduct claim, which is grounds two on page two of the motion, and the Brady claim, they are contending that both of those claims should be procedurally barred because they could have been but were not raised at trial and on appeal. Mr. Jackson objects to that.
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With regard to the juror misconduct claim, Alabama case law is clear, Rule -- that juror misconduct claims are cognizable in Rule 32
proceedings, in this particular proceeding. There was no reason -- no way that trial counsel
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or co-counsel could have raised it at trial or on appeal and, therefore, it is appropriate for this Court to hear evidence on Mr. Jackson's claims that jurors engaged in misconduct.
With regard to the Brady claim or the Giglio claim, what we are alleging is that the State, the prosecutor's office, suppressed evidence. Mr. Jackson's trial counsel requested the evidence. The State said we've given you everything we have. And what we are now saying is, well, they didn't give us everything. That couldn't have been raised at trial. It couldn't have been raised on direct appeal, and Mr. Jackson should be allowed the opportunity to present the evidence to show that, in fact, the DA did suppress .certain pieces of evidence and that would have -- that undermines the outcome of his trial. THE COURT: Now, let me ask y'all this, too, because I know this case, it was tried, what, in '97? Is that when --
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MR. McINTIRE: Yes, Your Honor. THE COURT: -- they tried it? And, I mean,
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it's kind of an interesting, I guess, little twist on it in light of what is -- I mean, now we
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know that you have to do extensive mitigation, hire experts. You know, that's no longer an option. I mean, you know, you're basically you know, you're going to be incompetent as a lawyer if you don't do that on a capital case. And we know that. That's required now, and then, I mean, you've got to do extensive mitigation, have your mitigation experts. You know, they need to be on board from the get-go. But, obviously, that wasn't the law when this case came about, but the -- the interesting twist on it is the jury, you know, they're the ones who recommended 12 and 0 life without parole. So, I mean, with only 25 minutes of, I think, mitigation argument, I mean, obviously, that convinced them, hey, life without parole. But the judge, who has a right to do it, overruled that and gave him the death penalty. So I'm sitting here thinking last night and I'm going, well, you know, whether they did extensive mitigation, you know, investigation, had the experts, did all the things they should have, it didn't matter in this case because, I mean, the
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jury, they said life without parole. I mean, it would have been different, I think, obviously if
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they had recommended the death penalty and then the judge had upheld it. I don't know. I mean, I'm just asking y'all. This case is kind of -- it's got a little bit of a different twist. And I assume I.don't know. I mean, Bryan, is Wiggins, does it -- does it go back to old cases? I assume it does. MR. STEVENSON: Well, Your Honor -MR. McINTIRE : Your Honor , may I -point, it
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MR. STEVENSON : --
just on that
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actually does -- the Wiggins case was actually tried about the same time this case was tried. THE COURT: It's retroactive on this stuff; right? MR. STEVENSON : It is. And, of course
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and I'll let Ms. Setzer speak to this, but our point, of course , is that it was the presentation
in front of the judge that made all of the difference in this case . If you don't present that mitigating evidence in front of that judge, then, obviously , you're not effective.
THE COURT: Right .
You're still thinking it
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did matter.
MR. STEVENSON : Oh, absolutely. If he
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hadn't THE COURT: That the judge needed the
benefit MR. STEVENSON : Absolutely. THE COURT: -- of hearing all of that as well. MR. STEVENSON : Absolutely, Your Honor. THE COURT: What do you guys say about that? Because that really --- out of everything about this, the thing that's just been sticking with me is that. We know if it was tried right now,
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obviously, it would be tried totally different.
MR. McINTIRE : Well, every case can be tried totally different.

THE COURT: Well, no -- but in light of Wiggins, I mean, life has changed capital cases. We know as far as
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that. It's no longer -
you know, we just did a CLE on it in this courthouse about why you've got to hire a mitigation expert from the jump. Right when you get that case, you need to get them on board; which speaking of that -- and that -- I'm just going off the Record.
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Vicki
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Clark Official Court Reporter

(334) 832-1365
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(Off-the-Record discussion.)
THE COURT: But, you know, I guess what I'm
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saying is the Court -- for the Court to sit here and just ignore Wiggins, to just close my eyes and say, well, you know, 25 minutes with no mitigation, no experts, nothing, that's okay, well, I know that isn't okay because that's not what the law says now. MR. McINTIRE: Your Honor, first of all, I would respectfully disagree with your interpretation of Wiggins. I don't think Wiggins has any clear mandate that you have to hire a mitigation expert, that you have to hire an investigator. I think Wiggins stands for the proposition that you have to do a reasonable investigation, a competent investigation, and that -THE COURT: But then what is competent? MR. McINTIRE: -- and that investigation is -excuse me . I'm sorry. Go ahead. THE COURT: No. I'm just saying I agree with you, but you're not competent unless you hire the mitigation experts, because lawyers, they don't have the training, the expertise, to be able to do that. I mean, that's insane to
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think that we do. We don't.

MR. McINTIRE : Well, I strongly disagree
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with that , too, Your Honor . I don't think that's the case. THE COURT: I do. MR. McINTIRE: And furthermore THE COURT: I mean, I could be wrong, but I think that is the case based on --- I think Justice O'Connor was pretty clear in her opinion. I mean, I think it tells lawyers you better have the necessary experts. We're talking about someone's life, and you better have them, and you better jump through all the hoops or it's not correct. MR. McINTIRE: I'm going to respectfully disagree with Your Honor, and I think that focusing on the Wiggins is really on the actions that the lawyer takes. When you look at the lawyer's -- from the lawyer's perspective, under the circumstances of the case, the circumstances of his client, and actually look at what did he do to prepare for the mitigation phase and was it reasonable in light of the total circumstances -
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THE COURT: But do you know what? Nothing was done in this case.
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MR. McINTIRE: Your Honor, he got THE COURT: 25 minutes. Come on.
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MR. McINTIRE: Your Honor, he got a 12/0 verdict, so he obviously did something right in this case. And, furthermore, the State has not __ the State has not -- the State has already conceded the fact that there should be a hearing on their claims that counsel was ineffective during the penalty and sentencing phases and also as to Jackson's claim that he's mentally retarded. The State has already conceded that there should be a hearing on those claims. So I really don't think that's the focus of today's
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hearing. I think the focus THE COURT: And I'm not -- and I'm not saying the lawyers weren't effective by only doing 25 minutes, what they did. I mean, they didn't have the benefit of what we now have. So I'm not being critical of them, but I'm just looking at it from the standpoint of the case law that we have now and what the United States Supreme Court is saying has to be done in capital cases. And, I mean, maybe I am wrong, but I think that if you read the Wiggins -- I think if you do not get experts from the get-go on board,
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Vicki H. Clark Official Court Reporter

(334) 832-1365
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I think you' ve got real problems . I really do. I mean, I could be completely off base, but I
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I just think that that's what they're telling us, you know. MR. McINTIRE : Well, I would respectfully disagree with Your Honor on that point. Obviously, we'll get to that at a later date when we both make our arguments as to those claims.
Just going back briefly to the procedurally barred claims , I'd just like to point out to the Court that under 32.3, Rule 32.3 THE COURT: Hold on for just a second, Jeremy. Let me stop you there. Angela is saying, hey, first, Judge, This we've got to be able to do discovery before we can even address these. at this point. You can't we can't address them
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is premature
really rule on them and
until we get proper discovery. Why is she wrong on that? MR. McINTIRE : because Rule 32.2 is apply to all She's wrong , Your Honor, clear that procedural bars
cases, even death penalty cases. that once the State has pled
Rule 32.3 states
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procedurally barred, the burden shifts back to
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the other side to disprove that bar -- to prove the existence of that bar. They haven't done that in this case. You don't need discovery to do that. Either it could have been raised or it couldn't have been raised. It's pretty clear when you look at these claims that -- it's obvious just from reading the petition of the claims that they could've been raised or they couldn't have been raised and that they're barred because of that. Also, in ex parte State -- in reference to Hooks v. State, the Alabama Court of Criminal Appeals held that there's no discovery -- there is no right to discovery on a procedurally barred claim, which is what they're attempting to do is get discovery on a procedurally barred claim by saying, well, we need discovery to see if they're procedurally barred. Well, the Court of Criminal Appeals has said, no, that is not right; there is no discovery on procedurally barred claims. You can look at the claims themselves and decide whether or not they're procedurally barred. The State has pled these bars. The burden is now on Mr. Jackson to prove that they do not exist.
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THE COURT: Okay. MS. SETZER: Your Honor, with regard to
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that, I think Mr. McIntire just stated that it's our burden now to disprove the procedural bars. Well, in order to do that, we need to obtain discovery to ascertain whether or not these claims could have been raised on direct appeal or could have been raised at trial. We can't do that without discovery, and so our position would be that we do need discovery in order to disprove -THE COURT: You're saying at this point I don't even know, Judge, if we could have or couldn't have because I don't have sufficient information to be able to even make that, you know, statement. I mean, I've got to have some more information is what y'all are saying. MS. SETZER: Right. THE COURT: Well, what about that, Jeremy? They're saying, hey, we don't even know. MR. McINTIRE : Judge THE COURT: I mean, I know you're saying they should know and they know based on the trial and what they've got, that there isn't anything new they need; they can tell is what you guys are
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1 saying. MR. McINTIRE: I think it's clear from the 3 4 5 6 7 8 9 10
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claims themselves, Your Honor. Just as an example, claim six in the petition is that the trial court committed reversible error for failing to instruct the jury on the lesser included offense of robbery. Now, that was raised on appeal, on his direct appeal. Now, what discovery do they need to determine whether or not that claim is procedurally barred? THE COURT: No. I agree with you. I think some of them probably are procedurally barred, but I bet some of them, they might need some more information. I mean, I agree with you. I think there's some of them that -- like that, yes, there isn't anything else you need on that. But I bet there's some that they are going to need some more. I don't know, I mean, but I bet there is. MS. SETZER : Your Honor, I think -- I mean, I agree with you. I mean, I think that we would say, you know, we are likely --- we may concede that some of them, in fact, are procedurally barred. THE COURT: Right.
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MS. SETZER : But at this point our position would be that we do need discovery in order to ascertain that and that it would be premature for this Court to dismiss these claims before discovery has taken place and before we're able to get all of that information. THE COURT: And what exact discovery do you guys want? MS. SETZER : Well, we have -THE COURT: And I know you listed a number of things. MS. SETZER : Right. We have -- there are two motions currently pending before this Court, discovery with relation to prosecution files and then discovery with relation to institutional files, Department of Correction files, and the files that you mentioned earlier. The State has agreed that we are entitled to some of these discovery items, in particular, the District Attorney's file with regard to Mr. Jackson, some of the institutional files that relate to Mr. Jackson. The things that they are objecting to and that we contend we need, in particular, for example, they are saying that we do not -- that
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1 2 3 4 5 6 7 8 9 10 we're not entitled to the DA files with regard to the prosecution of the co-defendants in this case. We have alleged that both the State suppressed evidence of deals or agreements that were entered into with the co-defendants and also that trial counsel was ineffective during the
guilt phase, during the guilt and innocence phase of the trial by failing to investigate, by failing to challenge the State's presentation of its case. We need the District Attorney's files with regard to the co-defendants, with regard to prior prosecutions of both the co-defendants and Mr. Jackson in order to prove our claims, in order to show that, in fact, the District Attorney suppressed evidence or that trial counsel was ineffective, that they performed deficiently, and, you know, this is what would have happened had -THE COURT: So, Jeremy, y'all are saying we don't have a problem with turning over the DA's files on this case with Mr. Jackson, but we do have a problem with giving them the DA's files on the co-defendants? MR. McINTIRE: That's correct, Your Honor, because the claims are procedurally barred. The
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Court of Criminal Appeals has stated that there is no right to discovery of procedurally barred
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claims. THE COURT: But what about their argument that they think that they can prove maybe that there was some bargains that they should have investigated, but they won't know unless they see the file? I don't know. I'm just asking. That they need them because they don't know these things yet. MR. McINTIRE: First, Your Honor, those claims are procedurally barred. Also, those Brady claims are also due to be dismissed as insufficiently pled. I think we're getting into kind of a circular argument here that's not really going anywhere, and I think you just have to -- the burden is on them under Rule 32.3 to prove that these claims are not procedurally barred. They have to do something in their amended petition that states why we couldn't have discovered this, why counsel couldn't have discovered this, when did this all happen. There's none of that in their petition, Your Honor. They don't plead any facts that tend to say these claims could not have been raised at
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trial because of this; these claims could not have been raised on appeal because of this.
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There's nothing in their petition that states any of that; therefore, these claims are procedurally barred. THE COURT: What about that? Do you guys have specifics? MS. SETZER: Well, with regard to the ineffective assistance of counsel claims that I mentioned earlier, those are not procedurally barred. You know, the State has conceded that IAC -- of course, that some of the allegations are cognizable, but we contend that all of the IAC allegations, ineffective assistance, are cognizable. With regard to the Brady claim or suppression of evidence, we have alleged that trial counsel made motions. They asked for the stuff from the prosecutor, and the prosecutor said we've given you everything that we have or we will give you everything that we have. Without the evidence of this suppression, without the suppressed evidence, we will never be able to show that, in fact, the prosecutor withheld the
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-- I mean, we'll never be able to prove our

(334) 832-1365
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claim. It's not a procedurally barred claim. It is cognizable under Rule 32.
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A case out of this county, Montgomery County, Martin v. State, recently, the Court of Criminal Appeals granted relief in the case where the DA suppressed evidence and this evidence was discovered after several rounds of discovery. Okay. So this is an example of these claims being cognizable under Rule 32 and that we do need discovery in order to prove our claim. THE COURT: Well, Jeremy, what's wrong with giving them the discovery? MR. McINTIRE: Your Honor, with all due respect, they're on a fishing expedition. They don't plead any facts, any specific facts, that there was a deal. They're THE COURT: Well -MR. McINTIRE: They're basically on a fishing expedition trying to get all of this discovery information to see if there was. Rule 32 is a means for vindicating actual claims. It's not a means for investigating -THE COURT: Well, I MR. McINTIRE : -- possible claims. And what they're wanting to do -
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THE COURT: I hear what you're saying, but, I mean, we're talking about, you know, someone's
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life. Okay. So, I mean, the stakes are as high as they can get. You know, we're not talking about someone who is just going to prison for a number of years or whatever. I mean, we're you know, the stakes are as high as they can get. What is wrong with letting them have the discovery? If they are on a fishing expedition, then they're not going to be able to prove it anyway. Okay. I mean, they can't create things that aren't there. But if, in fact, they're right -- I mean, I don't know if they are or not. But if they are right, doesn't that need to come to light? MR. McINTIRE: Your Honor, that -- Rule 32 is not the opportunity for them to try to retry the whole case and go on a large fishing expedition and try to raise every conceivable thing -THE COURT: Well, I don't think they're retrying the case . I think they're just -
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MR. McINTIRE: If you read their petition, they are, Your Honor. THE COURT: -- saying they need their
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information to be able to argue these motions adequately to the Court, which is what they need
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to do.
MR. McINTIRE : I would also point out, Your Honor, that in a recent case by the Court of
Criminal Appeals, Wood v. State, 2004 Westlaw 1909291, the Court of Criminal Appeals again reiterated that a_Brady claim raising a Rule 32 petition is procedurally barred under Rules 32.(a)(3) and (a)(5) where the petitioner fails to instruct a claim was based on newly discovered evidence. In their petition they do not say it was based on newly discovered evidence. They offer no basis to support an inference or -- that a deal existed and they offered no facts as to what that deal was, when it came about, anything. MS. SETZER : Mr. McIntire ' s is relating to
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newly discovered evidence which is a specific provision of Rule 32.3(e) and constitutional violations which is another specific provision of
Rule 32, Rule 32.2(a). What we have alleged is

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not because of newly discovered evidence necessarily but that this is a constitutional violation. The whole idea of a Brady claim, of a suppression of evidence claim, is that Mr.
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Jackson could not have -- I mean, the State's suppressed it. They kept it from him. That's
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part of the requirement for getting relief under a Brady claim. He could not -- his trial counsel could not have done anything at trial. What we're saying is we believe based on our investigation that the DA entered into deals or agreements with the co-defendants in exchange for their testimony. We now need an opportunity to prove that. Rule 32 is precisely the arena for these types of claims. It's an opportunity for us to bring in new evidence and show this Court how Mr. Jackson's constitutional rights were violated. MR. McINTIRE: Your Honor, they're just assuming that the State violated Brady, that the State would just willy nilly break the law and do all of this. There's no facts in their petition to support any of their allegations. All they do is make a bare allegation and a conclusion without any supporting facts whatsoever. They state that in their investigation they found this or this that would support that. Well, what is it? They don't put it in their petition, raise those facts in their petition to support their
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allegations. Instead, they just make a bare allegation that they believe, that they believe,
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not even that there was, that there may have been a deal. Well, why? They don't state that in their petition. They don't offer any facts or any evidence to support their allegation. MS. SETZER: Your Honor, Mr. Jackson is an eighteen-year-old -- at the time of the crime was an eighteen-year-old young man. There were four individuals who were charged with capital murder of this crime. He is the only person that's on death row. All three of the codefendants are now serving lesser sentences, 21 years, 27 years, life. We believe based on our investigation that there were deals entered into for exchange for their testimony. It's sufficiently pled. It's a cognizable claim before this Court, and we would ask that this Court grant discovery so we can prove it. MR. McINTIRE: Your Honor, I would again just urge you to look at the petition itself and look at the claim itself. They -THE COURT: You know, I think they get discovery. I really do. Like I said, you know, y'all -- you know, mandamus me, take me up.
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Maybe the Court will agree with y'all and say no. But I just -- I mean, I think they are entitled
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to it. I think that by not letting them do it, there would be a problem . I mean, I think they're entitled to it. And, also, I'll put it this way. There's no harm in letting the discovery be done, but there is big harm in not letting it be done. That's for sure. And maybe it shows nothing and
maybe there is nothing, and that's fine. I mean, I don't know. But I think that they're entitled to it. I mean, I read their amended petition. They're making some arguments about some things that they think -- I think they're entitled to it. They get it. I'm going to give it to them. Well, with that, I mean, y'all are going to have to get the discovery first before we can argue any of this; right? MS. SETZER: Yes, ma'am. THE COURT: How long is that going to take? And, I mean, Jeremy, like I said, mandamus me. I mean, maybe the Court will agree with you and say, hey, Judge McCooey is wrong, and then we'll come back and go from there. If they say I'm right, then we'll just proceed onward.
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1 MS. SETZER: Your Honor, I don't know how
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long. A couple of months? I don't know exactly what the time THE COURT: Well, that's fine. Well, let's do this. Get me an order -- y'all draw it and make sure Jeremy looks at it -- saying that I'm letting y'all have the discovery. And then, Jeremy, y'all mandamus me. We'll see what the Courts say. If they agree with y'all, then, like I said, we'll come back and just go from there. If they don't, then we'll set this at a later date when we've done the discovery and we can proceed forward. MR. McINTIRE: Your Honor, just two quick points. THE COURT: Yes. MR. McINTIRE: For the Record, could you explicitly state what discovery requests you are granting? And, also, we would also state that we do not wish to see the order just so the Court of Criminal Appeals doesn't think that in some way we conceded to it. THE COURT: Oh, okay. Well, that's fine. I mean, I just let both sides look at it.
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I am granting all of the discovery that
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they are requesting in both -- and I had y'all's two motions that y'all had filed.
MS. SETZER : They're the motion for discovery of prosecution files and motion for
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discovery of institutional files. THE COURT: Right. And I'm granting it on both of those, Jeremy. Is that clear? MR. McINTIRE : So you're granting all discovery in both motions for discovery? THE COURT: were before Yes. Those two motions that
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this Court, I am granting discovery
in both of those. MR. McINTIRE : Your Honor, when will this order take place? In terms Jason Sharp, of there was a case
ex parte Sharp , that the Supreme
Court said you have seven days or whatever the time limit is to appeal from the Court's order, I'd like to know if the Court is going to make it
effective today or THE COURT: Can y'all get it to me today? MS. SETZER: Sure. THE COURT: I'll sign it today. MR. McINTIRE : I would just request to make sure we get a copy as soon as possible. THE COURT: Yes. I will sign it today, let
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y'all tile today.
it downstairs , so y'all can go from
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MS. SETZER : I'll get it to you. THE COURT: Okay. Anything else? MS. SETZER : I think that's it. THE COURT: All right. Mr. Jackson, we'll be in touch. And, Jeremy, y'all do what you've got to do. MR. McINTIRE : Yes, Your Honor. THE COURT: And we'll just wait to hear from the Courts, and we'll proceed forward. Okay. Thank you very much. Y'all have a nice day.
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32
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1 .2 CERTIFICATE
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STATE OF ALABAMA COUNTY OF MONTGOMERY
I, VICKI H. CLARK, OFFICIAL COURT REPORTER IN AND FOR THE FIFTEENTH JUDICIAL CIRCUIT, MONTGOMERY COUNTY, ALABAMA, DO HEREBY CERTIFY THAT I REPORTED IN MACHINE SHORTHAND THE FOREGOING HEARING AS STATED IN THE CAPTION HEREOF; THAT MY SHORTHAND NOTES WERE LATER TRANSCRIBED BY ME OR UNDER MY SUPERVISION, AND THAT THE FOREGOING PAGES NUMBERED 2 THROUGH 31, BOTH INCLUSIVE, REPRESENT A FULL, TRUE AND CORRECT TRANSCRIPT OF SAID PROCEEDINGS; THAT I AM NEITHER KIN NOR OF COUNSEL TO ANY PARTIES IN THIS PROCEEDING NOR IN ANY WAY INTERESTED IN THE RESULTS THEREOF.
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DATED THIS THE 15TH DAY OF OCTOBER, 2004.
CKI H. CLARK OFFICIAL COURT REPORTER
1
IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA
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SHONELLE ANDRE JACKSON, Petitioner,

V. STATE OF ALABAMA, * Respondent. <' *
* Case No. 97-2300.60
31 -14'?
^h ^ c
COURT ORDER
On October 13, 2004 , the parties appeared before this Court for argument on several pending motions . After hearing arguments from counsel for Petitioner Shonelle Jackson and counsel for the State of Alabama and upon review and consideration of the motions and the responsive pleadings , as well as the Petitioner ' s amended petition , the State ' s answer, the trial transcript and other pleadings, this Court hereby ORDERS that the Petitioner 's Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing and Petitioner ' s Motion for Discovery of Institutional Records, Files, and Information Necessary to a Fair Rule 32 Evntiary Hearing are hereby GRANTED.
(e w.
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APO -1 5
NO. IN THE SUPREME COURT OF ALABAMA
EX PARTE SHONELLE ANDRE JACKSON (In re : (In re : Ex parte State of Alabama Shonelle Andre Jackson, Petitioner V.
FILED APR -1 2005

CLERK ALA COURT CRIMINAL APPEALS
State of Alabama, Respondent)) Alabama Court of Criminal Appeals No. CR-04-0096

Montgomery County Circuit Court No. CC-97 2300.60
PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OF CRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY, CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT
Bryan A. Stevenson Angela L. Setzer Equal Justice .. Initiative of Alabama 122 Commerce Street Montgomery , AL 36104 Ph: (334 ) 269-1803 Fax: (334 ) 269-1806 Counsel for Shonelle Jackson
April 1, 2005
EX PARTE SHONELLE ANDRE JACKSON (In re : Ex parts State of Alabama
(In re : Shonelle Andre Jackson, Petitioner
V.
State of Alabama, Respondent)) Alabama Court of Criminal Appeals No . CR-04-0096
Montgomery County Circuit Court No. CC-97 2300.60
PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OF CRIMINAL APPEALS AND THE HONORABLE TRACY S . MCCOOEY,
CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT
Bryan A. Stevenson Angola L. Setzer Justice.- Initiative of Equal Alabama 122 Commerce Street Montgomery, AL 36104 Ph: (334) 269-1803 Fax: (334 ) 269-1806 Counsel for Shonelle Jackson
April 1, 2005
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . PETITION FOR WRIT OF MANDAMUS . . . . . . . . . . . STATEMENT OF THE CASE AND FACTS NECESSARY TO AN UNDERSTANDING OF THE ISSUES PRESENTED . . . .
v 1
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . 5 STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . 5 STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . 6 SUMMARY OF REASONS WHY WRIT SHOULD ISSUE . . . . . STATEMENT WHY WRIT SHOULD ISSUE . . . . . . . . . .
6 7
I. THE ALABAMA COURT OF CRIMINAL APPEALS ERRED IN GRANTING THE STATE ' S PETITION FOR A WRIT OF MANDAMUS BECAUSE NO EXCEPTIONAL CIRCUMSTANCES ARE PRESENT IN THIS CASE . . . . . . . . . . . . . . . . . . . . . 7 A. The Alabama Court of Criminal Appeals Erred in Granting the Writ of Mandamus Because the State had an Adequate Remedy by Appeal
. . . . . . . . . . . . . . . . . . . . . . . 8
B. The Alabama Court of Criminal Appeals Erred in Granting the Writ of Mandamus Because the Trial Court Did not Abuse its Discretion as Mr. Jackson has Shown "Good
Cause" for His Discovery Requests . . . . . . . 12

1. Prosecution Files .
. . . . . . . 15
a. Files Relating to the Co-Defendants and Prior Prosecutions . . . . . . . . . . . . . 16 b. Jail Visitor Sign-In ' Sheets . . . . . . . .
. . . . . . 19
c. Documents Relating to . . . . . . . . . . . 20 State Witnesses
d.
Physical Evidence Introduced into the
Record at Trial . . . . . . . . . . . 22
e. Juror Questionnaires
and Materials . . . . . . . . . . . . 24
2. Records of Louis Taylor . . . . . . . . . . 25 3. Records of the Department of Human Resources and the Alabama
Board of Pardons and Paroles . . . . . . . 29

II. CONCLUSION . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE APPENDIX OF EXHIBITS TAB 1 Opinion of the Alabama Court of Criminal Appeals dated March 18, 2005 . . . . . . . . . . . . . . . . . 31
TAB 2
Order of Honorable Judge Tracy S. McCooey dated March 23, 2005

State of Alabama's Petition for Writ of Mandamus to Honorable Tracy S. McCooey, Circuit Judge, Fifteenth Judicial Circuit Exhibit A Shonelle Jackson's Amended Rule 32 Petition Exhibit B State's Answer to Shonelle Jackson's Amended Rule 32 Petition Exhibit C State 's Motion to Dismiss Procedurally Barred Claims D State's ii Motion to Dismiss
TAB 3
Exhibit
Insufficiently Plead Claims Exhibit E State's Motion to Dismiss Claims Pursuant to Rule 32.7 (d)
F Mr. Jackson's Motion for Discovery of Institutional Records, Files, and Information Necessary to a Fair Rule 32 Evidentiary Hearing Mr. Jackson's Motion for Discovery of Prosecution Files, Records and Information Necessary to a Fair Rule 32 Evidentiary Hearing State's Response to Mr. Jackson's Motion for Discovery of Institutional Records, Files, and Information Necessary to a Fair Rule 32 Evidentiary Hearing
Exhibit
Exhibit
Exhibit H
Exhibit I State's Response to Mr. Jackson's Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing Exhibit J Mr. Jackson's Response to the State's Opposition to his Discovery Reque$-ts Exhibit K Transcript of the Hearing Held on October 13, 2004 in the Montgomery County Circuit Court on the Parties' Motions Exhibit L Circuit Court's Order of October 13, 2004 TAB 4 Shonelle Jackson's Answer in opposition to the State of Alabama's Petition for Writ of
iii
Mandamus to Honorable Tracy S. McCooey, Circuit Judge, Fifteenth Judicial Circuit

to the Exhibit A Petitioner's Response State's Motions to Dismiss TAB 5 Brief of Amicus Curiae of the Alabama Department to Human Resources Petitioner's Objection to this Court's Signing of the State's Proposed Orders Without Modification
TAB 6
TAB 7
State's Response to Jackson's Objection to this Court's Signing of the State's Proposed Orders without Modification
iv
TABLE OF AUTHORITIES FEDERAL CASES Banks v. Dretke, 540 U.S. 668 . . . . . . . . . . . 17 476 U.S. 79 . . . . . . . . . . 24 373 U.S. 83 . . . . . . . . . . 16
Batson v. Kentucky, Brady v. Maryland, Davis v.
Alaska, 415 U.S. 308 . . . . . . . . . . . 21
Giglio v. United States, 405 U.S. 150 . . . . . . . 16 J.E.B. v. Alabama, 511 U.S. 127 . . . . . . . . . . 24 355 F.3d 364 . . . . . . . . . . . 27 360 U.S. 264 . . . . . . . . . . 17 539 U.S. 510 . . . . . . . . . . 26 529 U.S. 362 . . . . . . . . . 27 STATE CASES
Lewis v. Dretke,
Napue v. Illinois, Wiggins v. Smith,
Williams v. Taylor,
Ex parte Compass Bank,
686 So.2d 1135 . . . . . . . . 9
Ex parte Crawford Broadcasting Company, No. 1031094, 2004 WL 2914 924 . . . . . . . . . . . . . . . . . . 7 DeBruce v. State, 890 So.2d 1068
Stores, Inc.,
Ex parte Dillard Department
879 So . 2d 1134 . .
. . . . . . . . . . . . . . . . . 9
Ex parte Dobyne,
Ex parte ],pumas ,
805 So.2d 763 .

778 So . 2d 798 . . . . . . . . . . . 10
Ex part O'Leary, Hamilton v.
438 So.2d 1372 . . . . . . . . . . 23
State, 677 So.2d 1254 . . . . . . . 15, 17 804 So.2d 247 . . . . . . . . . . . 20
Hardy v. State, Harris v.
State, No. CR-01-1748, 2004 WL 2418073 . 26 847 So.2d 386 . . . . . 5, 6, 10 645 So.2d 313 . . . . . . . . . 15
Ex parte Hutcherson, Jefferson v. State,
Ex parte Land, 775 So. 2d 847 . . . . . . . . . . . . 6, 13, 14, 18, 19, 22, 24, 27 Ex parte Lynn, Ex parte Mack, 477 So.2d 1385 . . . . . . . . . . . 21 No. CR-02-0431, 2003 WL 1950008 . . 13 839 So.2d 665 . . . . . . . . . . 15
Martin v. State, McGahee v.
State, 885 So.2d 191 . . . . . . . . . . 11 616 So.2d 933 . . . . . . . . 20
McMillian v. State, Ex parte McNair,
653 So.2d 353 . . . . . . . . . . 10 No. 1030476, 2004 WL
Ex parte Norfolk Southern Rye Co.,
1950297 . . . . . . . . . . . . . . . . . . . . . . 9
Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 . . .
. . . . . . . . . . . . . . . ... . . 6, 7, 8, 9 Ex parte Pierce , 851 So.2d 606 . . . . . . . . . . 11
Ex parte State (In re: Shonelle Andre Jackson v. State of Alabama), No. CR-04-0096, 2005 WL 628485 . . . . . . 4, 8, 12, 15, 16, 17, 19, 21, 22, 25, 28 Sims v. State, 587 So.2d 1271 . . . . . . . . . . . 24 680 So . 2d 909 . . . . . . . . . . 13
Ex parte Slaton ,
vi
PETITION FOR WRIT OF MANDAMUS Petitioner Shonelle Jackson respectfully petitions this Court, pursuant to Rule 21(e) of the Alabama Rules of Appellate Procedure, to issue a writ of mandamus to the Alabama Court of Criminal Appeals directing it to vacate its opinion of March 18, 2005, ordering the Honorable Judge Tracy McCooey of the Fifteenth Judicial Circuit to set aside her orders granting discovery in this case. Petitioner also requests this Court to direct Judge McCooey to vacate the order she entered following the Court of Criminal Appeals' opinion.' STATEMENT OF THE CASE AND FACTS NECESSARY TO AN UNDERSTANDING OF THE ISSUE PRESENTED In 1998, Shonelle Jackson, who was eighteen years old at the time of the crime, was convicted of capital murder and sentenced to death, despite a unanimous 12-0 jury verdict of life without the possibility of parole. Mr. Jackson is currently before the Montgomery County Circuit Court seeking
1 On March 23, 2005, Judge McCooey complied with the Court of Criminal Appeals' opinion (that is the subject of this mandamus petition) by entering an order vacating her prior rulings granting Mr. Jackson's discovery motions. See Appendix to Petition for Writ of Mandamus to the Alabama Court of Criminal Appeals and Circuit Judge Tracy S. McCooey of the Fifteenth Judicial Circuit, Tab 2.
relief from his conviction and sentence pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.
Mr. Jackson filed a timely Rule 32 petition on July 30, 2003. The State filed an answer on October 28, 2003, and on February 26, 2004, moved for dismissal of some of the claims in Mr. Jackson's petition based on allegations of procedural bar, or failure to satisfy pleading requirements. On March 1, 2004, Judge McCooey signed the State's proposed orders dismissing a number of Mr. Jackson's claims. Mr. Jackson subsequently filed an objection to the trial court's order and a motion for reconsideration. See Tab 6.2 Mr. Jackson additionally filed an Amended Rule 32 petition, and motions in which he moved the circuit court for discovery of prosecution files and institutional records necessary to prove these claims. See Motion for Discovery of Institutional Records Files (Tab 3, Exh. F); Motion for Discovery of Prosecution
(Tab. 3, Exh. G).'
In response, the State argued that "Jackson has no
2 Exhibits contained in the appendix to this petition are referenced as "Tab "
3 Exhibits filed with the State's petition for writ of mandamus in the Alabama Court of Criminal Appeals will be referenced as "Tab 3, Exh.
standing to complain about the orders regarding his original petition, as they have no affect on his first amended petition, which has superseded the original petition." (Tab 7 , at 5 . )
With respect to Mr. Jackson's amended petition, the State asserted that most of the claims should be dismissed because they were either insufficiently specific, procedurally barred, or did not state a claim upon which relief could be granted. (See Tab 3, Exh. C, D, E) While the State acknowledged that Mr. Jackson was entitled to some of the discovery items he
requested, the State objected to other items, arguing that Mr. Jackson had failed to show "good cause" for his requests, in part because it believed the circuit court should have dismissed the claims on which they were based. (See Tab 3, Exh. H, I). On October 13, 2004, Judge McCooey held a hearing on the State's motions to dismiss, as well as Mr. Jackson's discovery requests. After hearing arguments from both parties and reviewing the pleadings, the trial court granted Mr. Jackson's discovery motions, (Tab 3, Exh. L), and reserved a ruling on the State's motions to dismiss. (Tab 3, Exh. K, at 28-29).
On October 20, 2004, the State filed a petition for writ
of mandamus asking the Alabama Court of Criminal Appeals to reverse the trial court's discovery order because, it claimed, the trial court erred in finding that "good cause" for Mr. Jackson's discovery requests existed. (Tab 3, at 4). Mr. Jackson submitted a response in which he argued that mandamus was not appropriate or necessary, and that, in any event, he had established "good cause" for his discovery requests. (Tab
4) .
On March 18 , 2005 , the Alabama Court of Criminal granted and directed Judge
the State ' s petition for writ of mandamus ,
McCooey to vacate her rulings on Mr. Jackson ' s two discovery motions . State Ex arte Stat e I : Sh nel Andr e Jac kso n v.
of Alabbamal,
No. CR - 04-0096, 2005 WL 628485, at *12
(Ala. Crim. App. Mar. 18, 2005) (attached as Tab 1).
The
court did not address the extraordinary nature of mandamus, or its limited application to only the most exceptional circumstances, but simply concluded that "the State has met its burden of establishing the prerequisites for the issuance of this writ of mandamus," gx-Parte State, 2005 WL 628485, at *4, 11, and that Mr. Jackson had failed to show good cause for the requested discovery.
This Court should issue a writ of mandamus to the Alabama
Court of Criminal Appeals directing it to vacate its order because mandamus review of the trial court's discovery order was inappropriate. This is not an "exceptional" issue warranting an extraordinary remedy and Mr. Jackson has shown "good cause" for his discovery requests. STANDARD OF REVIEW Mandamus is an extraordinary remedy that will be issued when: 1) there is a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court. Ex parte Hutcherson, 847 So. 2d 386, 387-88 (Ala. 2002). STATEMENT OF JURISDICTION This Court has jurisdiction of this petition pursuant to Rule 21(e) of the Alabama Rules of Appellate Procedure, "which provides that a decision by a court of appeal on an original petition for a writ of mandamus may be reviewed de novo by
this Court." Ex parte Hutcherson, 847 So. 2d 386, 387 (Ala. 2002). The Alabama Court of Criminal Appeals issued its opinion granting the State's petition for a writ of mandamus on March 18, 2005. Mr. Jackson's petition to this Court is
being timely filed within fourteen days of that order. ALA. R. APP. P. 21 (e) (2) .
STATEMENT OF ISSUES 1. Should the Alabama Court of Criminal Appeals have granted the State of Alabama's petition for writ of mandamus where the trial court granted the Rule 32 petitioner's discovery motions and withheld a ruling on the State's motion to dismiss and where the State did not have a clear legal right to the order it sought and has an adequate remedy by ordinary appeal?
2. Should the Alabama Court of Criminal Appeals have granted the State of Alabama's petition for writ of mandamus reversing the trial court's postconviction discovery order in a capital case where the petitioner demonstrated "good cause" for the requested items?
SUMMARY OF THE REASONS WHY THE WRIT SHOULD ISSUE The Montgomery County Circuit Court properly granted Shonelle Jackson's motions for discovery of items necessary to prove the facially valid claims in his Rule 32 petition. The court also properly reserved ruling on the State's motions to dismiss. In addition to being proper, these rulings are typical in Rule 32 litigation and do not present an "exceptional" case warranting mandamus review. As such, this Court should order the Alabama Court of Criminal Appeals to vacate its order granting the State's petition for a writ of mandamus.
STATEMENT WHY WRIT SHOULD ISSUE I. THE ALABAMA COURT OF CRIMINAL APPEALS ERRED IN GRANTING THE STATE ' S PETITION FOR A WRIT OF MANDAMUS BECAUSE NO EXCEPTIONAL CIRCUMSTANCES ARE PRESENT IN THIS CASE
The "judicial system cannot afford immediate mandamus review of every discovery order." Ex Qarte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003). Rather, mandamus is an "extraordinary" remedy that is limited to cases where 1) there is a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' Ex parte Hutcherson, 847 So. 2d 386, 387-88 (Ala. 2002). As Justice Moore noted in his concurring opinion in Oc w e n:
It is not the business of this Court to look over the shoulder of a trial judge or to question every decision a judge makes just because a party is dissatisfied. Ocwen , 872 So. 2d at 817 (Moore , C.J., concurring in the
4 This Court has recognized that mandamus is appropriate for reviewing discovery orders. Ex_p rte Land, 775 So. 2d 847 (Ala. 2000). However, a writ of mandamus will only issue in exceptional circumstances "which amount to a judicial usurpation of power." Ex pate Sullivan, 779 So. 2d 1157, 1160 (Ala. 200,0) .
result) .
In this case, the Alabama Court of Criminal Appeals erred in granting the State's petition for a writ of mandamus because: 1) the State had an adequate remedy by ordinary appeal, and thus could not show that it would suffer the kind of harm necessary for mandamus review; and 2) the trial court did not abuse its discretion in granting Mr. Jackson's discovery requests, and thus the State could not demonstrate a clear legal right to the order sought.
A. The Al bama Court of Criminal A ea Erred in Granting the Writ of Mandamus Beca The State Had an Adequate Remedy by A al Generally, a regular appeal of a discovery order is an adequate remedy. Ocwen, 872 So. 2d at 813. Review by appeal
is inadequate in only a few "exceptional" situations, such as when a privilege is disregarded, or when a discovery order is
unduly burdensome. See Ex parte Crawford Broadcasting Company, No. 1031094, 2004 WL 2914924, at 42 (Ala. Dec. 17, 2004) . Mr. Jackson made a limited request for a discrete number of records on a discrete number of individuals: his parents' penal and mental health records, DHR records concerning Mr. Jackson, the District Attorney's files relating to the death
of the victim and the prosecution of this case (including the files of the three co-defendants who testified against Mr. Jackson at trial, all of whom received lesser sentences) and records on the State witnesses who testified against him at trial.' While the State generally asserted below that Mr. Jackson's requests imposed an "unduly burdensome " procedure, (Tab 3 , Exh. H , at 5; Exh. I, at 4), the State's mere
allegations of inconvenience and expense are insufficient to form a basis for finding that the discovery request is oppressive or burdensome . Oc w e n, 872 So. 2d at 815.
Nevertheless, the Alabama Court of Criminal Appeals concluded -- without explanation or evidentiary support in the record - that " the consequences of this request are enormous." Ex parte State , 2005 WL 628485 , at *5 n . 5. In reality, the
actual number of records produced would be fairly limited, and certainly does not come close to the type ' of request that Alabama courts have found to be unduly burdensome in other
s Additionally , Mr. Jackson requested information which is already a part of the trial record : jury questionnaires and the bullet and shell casing introduced into evidence against him at trial.
cases.6 Sep
wen, 872 So. 2d at 815-16 (trial court's order
requiring party to produce list of every prior consumerprotection or financing--agency complaint and every lawsuit filed during prior five years not unduly burdensome).
Nor did the State ever meet its burden of asserting a claim of privilege as a basis for arguing that Judge McCooey should deny or otherwise limit the discovery.' (See Tab 3 Exh. K ). While the time in an DHR asserted a privilege for the first in the Alabama Court-of Crirnina 3
amicus brief
6 The limited nature of the discovery order in this case pales in comparison to orders this Court has found to be Ex arte L) il lard De p't Sto res , Inc., 879 unduly burdensome . So. 2d 1134, 1137 (Ala. 2003) (in civil suit for false imprisonment and intentional infliction of emotional distress, plaintiffs' request for discovery of all actions filed against Dillard; all claims that did not result in actions; all complaints and charges made by customers about mistreatment; all complaints about employee mistreatment and all records regarding employees who had been accused of injuring, accusing or detaining customers or other employees in more than 100 department stores nationwide found to be oppressive or burdensome , as many were "irrelevant to this case" ); Ex paste Compass Bank , 686 So . 2d 1135 ( Ala. 1996 ) ( discovery of every Compass Bank file involving variable annuity, which required the production of at least 21,246 customer files and 35,000 transactions unduly burdensome). 7 See Ex carte Norfolk Southern Rye Co., No. 1030476, 2004 WL 1950297, at *1 (Ala. Sept. 30, 2004) ("The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case - that is, one in which an appeal is not an adequate remedy.") (citation omitted).
10
Appeals ,
the trial court was not presented with such an
assertion, and thus could not be the basis for mandamus relief . See Ex carte Dumas, 778 So. 2d 798, 801 ( Ala. 2000)
(given the broad discretion vested in trial court with regard to discovery , and given petitioner's failure to articulate
basis for protective order, even when specifically asked by trial court , no abuse of discretion in trial court's failing see--also E x rte McNair , 653 So. 2d
to restrict discovery ); 353, 360
( Ala. 1994 ) ( refusing to consider evidence on appeal
that was not presented to trial court). In this case, the State ' s right to appeal pursuant to ALA. R. CRIM. P. 32.10 is a more than adequate remedy to review the trial court ' s ruling in this case. See. e.g ., Hutcher s on, 847 So . Ex carte
2d 386, 388 (Ala. 2002) . If and when
Judge McCooey rules against the State - either by finding that the claims upon which discovery was granted are not procedurally barred , or by granting relief-to Mr. Jackson on
the merits of claims for which the State contends that he has not shown good cause - the error can be remedied on appeal.'
' Such a procedure is consistent with the Rules of Criminal Procedure , which mandate that "once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence." ALA. R. CRIM . P. 32.3 ; see also Ex carte Pierce, 851
11
As such, the Alabama Court of Criminal Appeals erred in

issuing the writ of mandamus i n this case.
B . The -Alabama Cou rt of Criminal A sale Erred Granting the Writ of Ma ndamus B ecaus e i ts Not Abuse Trial Cou rt-- Di d The Dis cretion As k n Has S ho wn "Good Cause " for His Discovery Requests
In granting the State's petition for a writ of mandamus, the Alabama Court of Criminal Appeals relied almost
So. 2d 606, 616 (Ala. 2000)(remanding for hearing on whether claim of improper jury contact was procedurally barred where record did not indicate whether "Pierce met his burden under Rule 32.3 of disproving the existence of the ground of preclusion by a preponderance of the evidence."). The trial court's grant of discovery will afford Mr. Jackson the opportunity, to which he is entitled, to disprove the claims of procedural bar. See. e.g., DeBruce v. State, 890 So. 2d 1068, 1077 (Ala. Crim. App. 2003) (finding procedural bar incorrectly applied by trial court where testimony at the evidentiary hearing demonstrated that counsel did not learn of information until five years after petitioner's trial); McGahee v. State, 885 So. 2d 191, 203 (Ala. Crim. App. 2003) (finding petitioner "sustained his burden of disproving grounds of preclusion pleaded by the State" where evidence demonstrated that trial counsel had no information about juror misconduct and therefore could not have raiged claim at trial or on appeal) . Should the trial court ultimately rule against the State on these claims, the State can appeal to the Alabama Court of Criminal Appeals for relief. See, e. g., State v. Trussell, 880 So. 2d 1177 (Ala. Crim. App. 2003) (granting state's appeal of circuit court's grant of postconviction relief because circuit court did not have jurisdiction to consider claim and claim was procedurally barred); State v. Whitley, 665 So. 2d 998 (Ala. Crim. App. 1995) (on state's appeal, reversing circuit court's grant of postconviction relief on juror misconduct claim because claim was procedurally barred).
12
exclusively on one part of a casual comment made by Judge McCooey at the hearing to conclude that she "failed to apply the correct standard when evaluating Jackson ' s discovery motions ." Ex parte State, 2005 WL 628485 , at *4. However, as Judge McCooey's
evidenced by both her order and statements ,
decision to grant Mr. Jackson's discovery requests was based on her finding that Mr. Jackson had established "good cause" for the requested information. During the hearing, the judge stated the following with regard to Mr. Jackson's discovery requests: I mean, I read But I think they're entitled to it. their amended petition. They' re making some arguments about some things that they think - I think they're entitled to it. They get it. I'm going to give it to them. (Tab 3 , Exh. K, at 28). Further, the trial court stated in
its written order that its decision was based on the "arguments from counsel for Petitioner Shonelle Jackson and counsel for the State of Alabama and -upon review and consideration of the motions and the responsive pleadings, as well as Petitioner ' s amended petition, the State's answer, the trial transcript and pleadings, . . . ." (Tab 3, Exh. J). Moreover., the opinion contravenes this Court ' s precedent
that trial judges are presumed to know the law and to follow
13
it.
E x c art
S lat o n, 680 So .
2d 909, 924 (Ala .
1996) (in
capital trial ,
no error where trial court did not state in
sentencing order that he considered all of the mitigating evidence presented at trial as ""[ t]rial judges are presumed to follow their own instructions , and they are presumed to know
the law and to follow it in making their decisions.")

Moreover, Mr. Jackson has shown " good cause" for his
discovery requests and the trial court did not abuse its
discretion by issuing these discovery orders . Land , 775 So . 2d 847 , 852 (Ala. 2000 ).
See Ex par.te
In assessing whether
a trial court should the scope of
"good cause "
has been demonstrated ,
consider the issues presented the discovery ,
i n the petition ,
the length of time between the conviction and the burden of discovery on the
postconviction proceeding ,
State and the availability of evidence through other sources. Ex arte Mack, No. CR-02-0431 , Crim . App. Apr. 25, 2003). An evaluation of these criteria in this case makes clear that " good cause" exists for Mr. Jackson's discovery requests. First , as shown below , all of the requested discovery is 2003 WL 1950008 , at *3 (Ala.
specifically related to facially valid legal claims contained in Mr . Jackson ' s Rule 32 petition . With regard to the length
14
of time criteria, Mr. Jackson has filed a Rule 32 petition within the prescribed statute of limitations, and is therefore not abusing the Rule 32 process. Finally, there is no other way for Mr. Jackson to obtain this discovery (Mr. Jackson attempted to obtain discovery without the State's involvement where possible), and all of the requested items are necessary for Mr. Jackson to prove his claims. See Land, 775 So. 2d at 855 (without requested documents, it would be "practically impossible for him to show that he suffered prejudice"). For these reasons, Mr. Jackson has shown good cause for the discovery, and the trial court's discovery order should stand. 1. Prosecution Files The Alabama Court of Criminal Appeals concluded that the trial court abused its discretion in granting discovery of the following: files related to the prosecution of Mr. Jackson's co-defendants, or any prior prosecutions related to Mr. Jackson or his co-defendants; the bullet and shell casing introduced at trial;9 records related to witnesses at his
9 The bullet and shell casing are simply a part of the record in this case, and Mr. Jackson is therefore entitled to access these items. Indeed the only reason that a court order is necessary for these items, which were admitted at Mr. Jackson's trial and made part of the record, is because these items are in the possession of the Montgomery County Clerk's office. The lower court's finding that Mr. Jackson should not
15
trial; visitor logs from the Montgomery County Detention Facility and juror questionnaires and materials."
a. Files Relating the C07Defendants and prior Prosecutions
be permitted to access these items should not be indulged by this Court. 10 To the extent that the Alabama Court of Criminal Appeals relied on the trial court's March 1, 2004, order, finding the Brady and juror misconduct claims to be procedurally barred pursuant to Rule 32.2(a)(3), (5) as a basis for concluding that Mr. Jackson has not shown "good cause" for his discovery requests, the lower court misread the record. While the trial court did find that some of the claims in Mr. Jackson's original petition were procedurally barred, it specifically reserved a ruling on whether the claims contained in his amended petition were procedurally barred. Indeed, in its mandamus petition to the Alabama Court of Criminal Appeals, the State of Alabama contended that Judge McCooey "abused [her] discretion by granting Jackson's motions for discovery before resolving the State's assertions of procedural bars and insufficient pleading." (Tab 3, at 2). For this reason, the lower court's reliance on the trial court's ruling of March 1, 2004, dismissing claims in his original petition, as a basis for concluding that Mr. Jackson had failed to show "good cause" for discovery of items related to claims in the amended petition, was in error. Ex Parte State (In re: Shone Jackson v. Stat of Alabama), No. CR-04-0096, 2005 WL 628485, at *5 (Ala. Crim. App. Mar. 18, 2005) (Tab 1). Moreover, as argued in the trial court, both Brady claims see, e .g., Martin v. State, 839 So. 2d 665 (Ala. Crim. App. 2001); Hamilton v. State, 677 So. 2d 1254 (Ala. Crim. App. 1995); Jefferson v. State, 645 So. 2d 313 (Ala. Crim. App. 1994), and juror misconduct claims are cognizable in Rule 32 proceedings. See, e.g., Exparte Dobyne, 805 So. 2d 763 (Ala. 2001); DeBruce v . State, 890 So . 2d 1068 (Ala. Crim. App. 2003) .
16
The Alabama Court of Criminal Appeals concluded that Mr.
Jackson is not entitled to the District Attorney's files of

his three co-defendants, which Mr. Jackson contends are necessary to prove that the State entered into deals with the co-defendants in exchange for their testimony," because "all three codefendants testified [at trial] that they had not been offered deals in exchange for their testimony," and because the record reveals that the "circuit court gave the State seven days to disclose this information," Mr. Jackson must have "had access to this information before trial." Ex parte State, 2005 WL 628485, at *5. The lower court's finding belies a fundamental misunderstanding of the nature of a claim pursuant to Brady v. Maryland, 373 U.S. 83 (1969), and Giglio v. United States, 405 U.S. 150 (1972). First, it is true that prior to trial, Mr. Jackson's trial counsel did file a request for discovery
11 Additionally, evidence contained in the District Attorney's files related to prior prosecutions of Mr. Jackson is necessary for Mr. Jackson to prove that his trial counsel were ineffective for failing to challenge the underlying convictions which formed the basis for the aggravating circumstance against Mr. Jackson that "the capital offense was committed by a.person under sentence of imprisonment." (Tab 3, Exh. A, at 16).
17
pursuant to Brady v. Maryland, (C. 20 ),12 and a
motion to
require the disclosure of deals and inducements, both of which were granted by the trial court. (C. 50.) However, because the State concealed this evidence, Mr. Jackson simply did not have access to it at trial. 668, 693 (2004)(where State See Banks v. Dretke, 540 U.S.
asserted on eve of trial that it
would disclose all Brady material, "Banks cannot be faulted for relying on that representation"). The very nature of the claim - the State's failure to turn it over - implicitly rejects such a finding. More critically, this finding does not contemplate proof that Mr. Jackson may offer at an evidentiary hearing, i.e., testimony from a co-defendant that he had entered into a deal in exchange for his testimony, and lied about this fact at trial. See NaDue v. Illinois, 360 U.S. 264 (1959) (State's presentation of false testimony violated defendant's due process rights) ; Hamilton y_. _State, 677 So. 2d 1254 (Ala. Crim. App. 1995) (postconviction relief granted where State presented perjured testimony and suppressed exculpatory evidence). Because this finding goes to the merits of the
12 This is a cite to the original trial record. As the lower court noted, this Court may take judicial notice of its Ex parte State, 2005 WL 628485 , at *5 n.4. own records .
18
claim and not to whether Mr. Jackson has satisfied the requisite pleading requirements forming the basis of his discovery requests , this finding is erroneous.
Mr. Jackson has shown " good cause " for these records. He contends that the State suppressed evidence at his trial, including evidence of deals entered into with the codefendants in exchange for their testimony . Evidence of these
deals is likely contained in the District Attorney's file for the prosecution of each of the co - defendants, and/or files on prior prosecutions of these individuals ( for example , evidence
that a deal with one of the co-defendant resulted in dismissal of or reduction of charges in a pending prosecution) Without these files , Mr. Jackson will be unable to prove his
allegations that the District Attorney suppressed this evidence , See Land, and will be prevented from succeeding on his claim. 775 So. 2d at 8 55 (without requested documents, it
would be "practically impossible for him-'to show that he suffered prejudice"). b. Jail Visitor Sign-In Sheets With regard to Mr. Jackson's request for the visitor sign - in sheets from the Montgomery County Detention Facility - which Mr. Jackson contends will corroborate his allegations
19
of suppressed deals with the co-defendants with a record of the times and dates that members of the District Attorney's office visited with them prior to trial - the Alabama Court of Criminal Appeals concluded that "this was information within Jackson's own knowledge." Ex r State, 2005 WL 628485, at
*9.
There is nothing in the record to suggest that Mr.
Jackson had any knowledge of who was visiting his codefendants while the four of them were incarcerated at the jail. More critically, such documentary evidence is critical to Mr. Jackson's ability to prove this claim. Mr. Jackson has shown "good cause" for these files, because without them, Mr. Jackson will be unable to prove his allegations that the District Attorney suppressed this evidence. Land, 775 So. 2d at 852. c. Documents Relating State Witneas-es The trial court additionally granted Mr. Jackson access to documents relating to state witnesses at"trial, including criminal and mental health records. In his Rule 32 petition, Mr. Jackson alleged that the State has suppressed a number of items, including information obtained from A.C. Porterfield, a witness at his trial. The requested records will likely contain the suppressed information, or lead to the discovery
20
of such information. Without access to records and documents related to any state witnesses at Mr. Jackson's trial, Mr. Jackson will be unable to prove his claim. See McMillian v. State, 616 So. 2d 933, 948 (Ala. Crim. App. 1993) (capital conviction and death sentence reversed in state postconviction where petitioner presented evidence about a trial witness found in Taylor Hardin medical records during Rule 32 proceedings). The Alabama Court of Criminal Appeals found that the trial court abused its discretion in granting discovery of these records because its order runs contrary to the law regarding third party records. First, while a criminal defendant is not always entitled to criminal records of state witnesses, Alabama court have recognized that the trial court does not abuse its discretion by granting such discovery. See Hardy v. State, 804 So. 2d 247, 285-86 (Ala. Crim. App. 1999), aff'd, Ex parte Hardy, 804 So. 2d 298 (Ala. 2000) (where trial court ordered disclosure of any criminal records of all lay witnesses, decision was "within the trial court's discretion" and "in keeping with the purpose and spirit of the holding of the Alabama Supreme Court in Ex parte Monk"). Second, with regard to the mental health and juvenile
21
records of these witnesses, both state and federal law clearly hold that evidentiary privileges must give way when they come into conflict with constitutional rights. Davis v. Alaska, 415 U.S. 308 (1974) (Sixth Amendment right to confrontation paramount to policy of protecting juvenile offender) ; Exxaarrte Lynn, 477 So. 2d 1385 (Ala. 1985) (defendant's right to cross examination unduly hampered by trial court's refusal to allow questioning of state witness about juvenile record).
7--r Critically, in this case, while the lower court chastised Judge McCooey for failing to conduct an in camera inspection
of the requested documents , Ex parte State, 2005 WL 628485, at *8, neither the State nor any other state agency challenged the discovery requests on the basis of privilege in the trial court and thus, the trial court had no opportunity to fashion a remedy for protecting privileged information (i.e., camera inspection, protective order). d. Physical Evidence Introduced into the Record at Trial In rejecting Mr. Jackson's discovery request for access to the bullet and shell casing introduced into evidence at to prove his claim in
trial - which he contends that trial counsel were
are necessary
ineffective for failing to challenge
the State's ballistics evidence and obtain the assistance of
22
a firearm and projectile in order to establish that Mr. Jackson was not responsible for Mr. Moore ' s death A., at 11 - 12, 24 ) ( Tab 3, Exh.
the Alabama Court of Criminal Appeals
concluded that Mr. Jackson can never establish that his counsel were ineffective for these failings because testimony elicited on cross-examination of the State ' s expert at trial suggested that the bullet could have come from another gun. Ex parte State , 2005 WL 628485, at *9.
However, the inquiry at this stage is not whether Mr. Jackson wins on the merits of his claims, but rather whether he has alleged facts , that if true, entitle him to relief.
Had an expert been retained by trial counsel to test the bullets, and affirmatively testified to the jury that the gun that Antonio Barnes or Christopher Rudolph was carrying likely shot the projectile that caused the victim ' s death , there is
a reasonable probability that the outcome of the trial would have been different . Mr. Jackson has thia 's alleged facts, Land, 775
which, if proven true, would entitle him to relief . So. 2d at 852. That the State ,
and now the Alabama Court of
Criminal Appeals , believes that Mr. Jackson may not ultimately succeed on the merits is not relevant to whether he has sufficiently pled the claim and shown " good cause" for
23
discovery. Without access to the bullet and shell casing - in order that they may be evaluated and independently tested Mr. Jackson will be unable to prove that trial counsel were ineffective in this regard. e. Juror estio it s and Materials In his Rule 32 petition, Mr. Jackson alleged that his rights to the use of peremptory challenges and to a fair and impartial jury were violated when several jurors failed to respond truthfully to multiple questions on voir dire. If true, these allegations entitle Mr. Jackson to relief. Ex part O'Leary, 438 So.2d 1372, 1375 (Ala. 1983) (conviction reversed in postconviction where jury foreperson failed to reveal, in response to questioning on voir dire, that he had previously served as a foreperson on a criminal jury). Without the juror questionnaires, Mr. Jackson will be unable to prove his claim of juror misconduct, and he has therefore articulated "good cause" for these questionnaires. Additionally, Mr. Jackson requested documents relating to the State's use of peremptory challenges during petitioner's trial, documents relating to the use of racial criteria in the jury selection process in criminal cases in Montgomery County, and documents relating to any communication between the State
24
and any petit jury member, so that he may be able to prove that trial counsel failed to adequately challenge the prosecutor's discriminatory use of peremptory strikes in violation of Batson v. Kentucky, 476 U.S. 79 (1986) and J.E.B. v. Alabama, 511 U.S. 127 (1994). Montgomery County has a documented history of discriminatory practices in jury
selection. See Sims v .
State, 587 So . 2d 1271, 1277 (Ala.
Crim. App. 1991) ("In considering this issue, we have taken note of the fact that the State in this case does not write on a clean slate. A number of cases prosecuted in Montgomery County have been reversed because of a Batson violation.") Thus, Mr. Jackson has demonstrated "good cause" for getting access to the jury materials in this case. See Land, 775 So. 2d at 852 ("to obtain discovery, a petitioner must allege facts that, if proved, would entitle him to relief."). 2. Records of Louis Taylor13
13 The State additionally objected below to discovery of the mental health records of Marilyn Jackson (Shonelle Jackson's mother) because the request was overly broad, it could be fulfilled by Ms. Jackson, and the records were irrelevant to Mr. Jackson's claims. (Tab 3, Exh. I, at 9). In its petition for mandamus in the Alabama Court of Criminal Appeals, the State contended that these records were privileged. (Tab 3, at 26) . This could not form the basis for this Court's mandamus review. First, the trial court never had the opportunity to address the issue of privilege because it was never asserted in the trial court, and therefore should
25
The Alabama Court of Criminal Appeals agreed with the State that the trial court abused its discretion in granting discovery of Louis Taylor's records because "this information was available through many other sources and [] the requested records are not necessary to support this claim." Ex ar State , 2005 WL 628485 , at *10. This is simply an insufficient
basis for finding that the trial court abused its discretion in granting discovery of these records. First, it is irrelevant whether the Alabama Court of Criminal Appeals or the State can suggest a different method by which Mr. Jackson can prove his claims . Because the State
is not conceding the facts related to this part of Mr. Jackson's ineffectiveness claim," it is inappropriate for the State or the lower court to dictate how it believes Mr. Jackson should ultimately prove the truth of his allegations. More importantly, the Court of Criminal Appeals' finding is
unsupported by law; there is no rule or c.se that suggests that a court can deny a Rule 32 petitioner's discovery request
not be the basis for a writ of mandamus. Ex parte T.Q., No. 1021861, 2004 WL 2201931, at *3 (Ala. Oct. 1, 2004) ("our review is limited to those facts that were before the trial court") . Second, the issue of privilege is irrelevant in this case , because Ms. Jackson has signed a release of her records. 14 (See Tab 3 , denied."). Pet. Exh. B, at 54)("This claim is
26
simply because a lawyer for the State (or a member of the court) thinks there are other ways to prove the claim.
In addition, as Alabama courts have recognized, Wiggins v. Smith, 539 U.S. 510 (2003), mandates that in a capital case, trial counsel "has a duty to conduct a reasonable investigation including an investigation of the defendant's background for possible mitigating evidence." Harris v_. State, No. CR-01-1748, 2004 WL 2418073, at *42 (Ala. Crim. App. Oct. 29, 2004) (in jury override case, reversing for new penalty phase where trial counsel found ineffective for failing to investigate and present mitigating evidence). In order to prove that counsel at Mr. Jackson's trial were ineffective, he must show that they failed to comply with the requirements of Wiggins, and that Mr. Jackson was prejudiced by this failure. Mr. Jackson's father's records are necessary not only to prove the claims in the petition, but also to discover additional mitigation evidence that has yet to have been uncovered. See ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases, Commentary to 10.7 n.215 (Revised Ed. Feb. 2003) ("Records may document events that neither the client nor family members remember."); see also Williams v, Taylor, 529 U.S. 362, 395
27
.r r
n.19 (2000) (relying on social worker's descriptions of the Williams home that could not have been provided by the client, who was too young, and the adult family members, who were too intoxicated, to recall the scene); Lewis y. Dretke, 355 F.3d
364, 368-69 (5th Cir. 2003) (in finding that counsel was ineffective for failing to adduce evidence of petitioner's abusive childhood, court relied in part on corroborating evidence in the form of medical records and other record evidence to support testimony of family witnesses); Van Dohlen v. State, 602 S.E.2d 738, 741 (S.C. 2004) (finding counsel ineffective for failing to investigate psychiatric evidence, including "medical records of Petitioner's father," for presentation at penalty phase of capital trial). Mr. Jackson's request is not unduly burdensome. Mr. Jackson has alleged that his father has had interaction with all of the identified agencies. As this Court recognized in Land: "if these facilities have no documents that relate to Land's claims, they can simply say so. Merely determining whether such documents exist would not unduly burden the State." Land, 775 So. 2d at 855.
Finally, by suggesting that Mr. Jackson is entitled to prove the facts related to his father (albeit by "other
28
available means"), the lower court has concluded that the information Mr. Jackson is seeking is relevant to his claims, and thus that Mr. Jackson has shown "good cause" for these records.
of Human 3. Records of the Department Resources and the Alabama Board of Pardons and Paroles
In his motion for discovery, Mr. Jackson additionally requested records from the Department of Human Resources ("DHR") and the Alabama Board of Pardons and Paroles. With regard to the DHR records, the Alabama Court of Criminal Appeals15 credited the amicus brief filed by DHR and concluded that the trial court abused its discretion by failing to grant discovery of these records without first holding an in camera hearing. Ex rte State, 2005 WL 628485, at *10. Similarly, the lower court found that the trial court's order, permitting Mr. Jackson access to records of the Alabama Board of Pardons and Paroles violates the Alabama Code
151t is worth noting that the State conceded in the trial court that Mr. Jackson was entitled to these records, (see Tab 3, Exh. H, at 11) ("The State has no objection to this Court granting both Jackson and the State access to any and all institutional records pertaining to Shonelle Andre Jackson in the possession of the Alabama Department of Human Resources."), and at no point did the State raise an objection to the discovery of these records in either of the courts below. 29
because [t]he records maintained by the Board are not subject to inspection." Id. However, because objections on this basis were never brought before Judge McCooey, she did not have the opportunity to fashion an appropriate remedy with regard to these records. II. CONCLUSION The State of Alabama failed to demonstrate that this is an exceptional case warranting mandamus review, and thus the Alabama Court of Criminal Appeals erred in granting the State's petition for a writ of mandamus to Judge McCooey. For all of the reasons set forth in these pleadings, Mr. Jackson respectfully requests that this Court direct the Alabama Court of Criminal Appeals to vacate its order setting aside Judge McCooey's orders granting discovery in this case. Respectfully-submitted,
Br '
Stevenson
Angela Setzer Equal Justice Initiative of Alabama 122 Commerce Street Montgomery, AL 36104 PH: (334) 269-1803 FAX: (334) 269-1806
Counsel for Mr. Jackson
Dated: April 1', 2005 30
CERTIFICATE OF SERVICE
Pursuant to Rule 21(a) of the Alabama Rules of Appellate Procedure, I certify that on April 1, 2005, I served a copy of the attached pleading by hand-delivery to: Alabama Court of Criminal Appeals Judicial Building 300 Dexter Avenue P.O. Box 301555 Montgomery, AL 36130-1555 and by first class mail, addressed to: Honorable Tracy S. McCooey Circuit Judge
Montgomery County Circuit Court 251 S. Lawrence Street Montgomery , AL 36104 Troy King James R. Houts Jeremy McIntire Office of the Attorney General Capital Litigation Division Alabama State House
postage
pre-paid, and properly
11 South Union Street Montgomery, AL 36130

Sharon Ficquette Assistance Attorney General Department of Human Resources Alabama Department of Human Resources Office of General Counsel 50 N. Ripley Street Montgomery, Al 36130
31
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APR - 1 2005
1
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EX PARTE SHONELLE ANDRE JACKSON (In re: Ex parte State of Alabama (In re : Shonelle Andre Jackson, Petitioner
FILED
APR -1 2005
(CLERK ALA COURT CRIMINAL APPEALS
V. State of Alabama, Respondent))

Alabama Court of Criminal Appeals No . CR-04-0096 Montgomery County Circuit Court No. CC - 97-2300.60
PETITIONER ' S APPENDIX TO PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OF CRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY, CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT VOLUME I OF III
Bryan A. Stevenson Angela L. Setzer

Equal Justice Initiative of Alabama
122 Commerce Street Montgomery , AL 36104 Ph: (334 ) 269-1803 Fax: (334 ) 269-1806 April 1, 2005 Counsel for Shone lie Jackson
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NO.
IN THE SUPREME COURT OF ALABAMA
EX PARTE SHONELLE ANDRE JACKSON (In re : (In re : Ex parts State of Alabama Shonelle Andre Jackson, Petitioner
V.
State of Alabama, Respondent)) Alabama Court of Criminal Appeals No. CR- 04-0096
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Montgomery County Circuit Court No . CC-97-2300.60
PETITIONER ' S APPENDIX TO
PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OF CRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY, CIRCUIT JUDGE , FIFTEENTH JUDICIAL CIRCUIT VOLUME I OF III
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122 Commerce Street Montgomery , AL 36104 Ph: (334) 269-1803 Fax: (334 ) 269-1806
1
April 1, 2005
Counsel for Shonelle Jackson
I
TAB 1
INDEX TO APPENDIX OF EUIRITS
Opinion of the Alabama Court of Criminal Appeals dated March 18, 2005
TAB 2
1
TAB 3
Order of Honorable Judge Tracy S. McCooey dated March 23, 2005

State of Alabama's Petition for Writ of Mandamus to Honorable Tracy S. McCooey, Circuit Judge, Fifteenth Judicial Circuit; Volumes I, II of Exhibits Exhibit A Shonelle Jackson's Amended Rule 32 Petition
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Exhibit B State' s Answer to Shonelle Jackson's Amended Rule 32 Petition Exhibit C State's Motion to Dismiss Procedurally Barred Claims
Exhibit D State's Motion to Dismiss Insufficiently Plead Claims Exhibit E State's Motion to Dismiss Claims Pursuant to Rule 32.7(d)
Exhibit F Mr. Jackson's Motion for Discovery of Institutional Records, Files, and Information Necessary to a Fair Rule 32 Evidentiary Hearing
Exhibit G Mr. Jackson's Motion for Discovery of Prosecution Files, Records and Information Necessary to a Fair Rule 32 Evidentiary Hearing Exhibit H State's Response to Mr. Jackson's Motion for Discovery of Institutional Records, Files, and Information Necessary to a Fair Rule 32 Evidentiary Hearing 1
t
I
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1
Exhibit I
State ' s Response to Mr . Jackson's Motion for Discovery of Prosecution Files, Records , and Information Necessary to a Fair Rule 32 Evidentiary Hearing
Exhibit J Mr. Jackson's Response to the State's Opposition to his Discovery Requests Exhibit K Transcript of the Hearing Held on October 13, 2004 in the Montgomery County Circuit Court on the Parties' Motions
Exhibit L Circuit Court's Order of October 13, 2004
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TAB 4
Shonelle Jackson's Answer in Opposition to the State of Alabama's Petition for Writ of Mandamus to Honorable Tracy S. McCooey, Circuit Judge, Fifteenth Judicial Circuit
Exhibit A Petitioner's Response Motions to Dismiss to the State's
TAB 5
Brief of Amicus Curiae of the Alabama Department to Human Resources
TAB 6
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TAB 7
Petitioner's Objection to this Court's Signing of the State's Proposed Orders Without Modification
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state Department of Human Resources (DHR). Petition granted; writ issued. Shaw. J., concurred in part and in result, with opinion. W Criminal Law 0
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Court of Criminal Appeals of Alabama. Ex parte STATE of Alabama (In re Shonelle Andre Jackson V. State of Alabama). CR-04-0096. March 18, 2005. Background : Following appellate affirmance, 836 So.2d 979, of his capital murder conviction and sentence of death, petitioner sought post-conviction relief, and filed motions for discovery in connection therewith. The Circuit Court, Montgomery County, CC-97-2300.60, Traci! S. _McCooev, J., granted motions. State petitioned for writ of mandamus directing vacation of discovery orders. Holdings: The Court of Criminal Appeals held that: post-conviction court abused its discretion by ordering discovery without first determining whether petitioner had shown good cause therefor; M post-conviction court improperly granted discovery with respect to claims it had previously held to be procedurally barred; 0 mental health records of witnesses for state were protected by psychotherapist-patient privilege; post-conviction court improperly granted petitioner unlimited discovery of juvenile records of all witnesses without in camera examination; petitioner was unable to demonstrate good cause for discovery of bullet recovered from victim's body and shell casing found in area where victim was killed; ()post-conviction court improperly granted petitioner discovery of records containing information available through other, less intrusive sources; and post-conviction court abused its discretion in allowing petitioner full access to files maintained by
IlOkOk. When ascertaining whether discovery is warranted in a post-conviction proceeding, the court must first determine whether the petitioner has shown good cause for disclosure of the requested materials. Rules Crim.Proc., Rule 32. 1 et seq.
M Criminal Law 4 C=O I I0k0 k.
Post-conviction court abused its discretion, by ordering discovery without first determining whether petitioner had shown good cause for discovery; court's ruling was based upon its belief that there was nothing "wrong" with letting petitioner have extensive discovery in a capital case. Rules Crim.Proc., Rule 32. 1 et seq. IM Criminal Law C'0 I lOkO k. Post-conviction court improperly granted petitioner discovery of files of district attorney's office related to petitioner's three co-defendants on capital-murder charges, where post-conviction court had already ruled that claims petitioner sought files to support, namely, that his co-defendant had entered into undisclosed "deals or agreements " with state, were procedurally barred, co-defendants had testified at trial that they had not been offered any deals in exchange for their testimony, and petitioner's trial counsel sought and obtained disclosure of any "deals or inducements" offered any witnesses prior to trial. Rules Crim.Proc., Rule 32.1 et seq. L41 Criminal Law C'0 I iOkO k. Court of Criminal Appeals may take judicial notice of its own records.
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LSJ Criminal Law 0=0 110k0 k. Post-conviction court improperly granted petitioner discovery of records with respect to all witnesses who testified for state at petitioner's capital murder trial, where post-conviction court had already ruled that claims petitioner sought records to support were procedurally barred. Rules Crim.Proc.. Rule 32.1 et seq.
161 Criminal Law C'0 I lOkO k.
Post-conviction court improperly granted petitioner discovery of juror questionnaires and other documents related to jury-selection process, where post -conviction court had already ruled that petitioner's claim of juror misconduct was procedurally barred, and claims related to alleged discrimination during jury selection process had been addressed and finally determined in petitioner's direct appeal. Rule 32.2.2(ax3) and (a)(5), Ala.RCrim.P.
L L21 Criminal Law 0 I lOk0 k.
When requested documents relate to a post-conviction claim that is procedurally barred, there can be no showing of good cause for the disclosure of the requested information. [ j Criminal Law 0 1 l 0k0 k. Defendant is not entitled to discover the criminal records of a state witness. 181 Criminal Law C=0 11 00k0 k. Mental health records of witnesses for state in capital murder prosecution were protected by psychotherapist-patient privilege and were not subject to discovery by petitioner in post-conviction proceedings. Rule 503, Ala.R.Evid; Rules Crim.Proc.. Rule 32.1 et seq. j91 Criminal Law C'0 1 I Ok0 k. Post-conviction court improperly granted petitioner unlimited discovery of juvenile records of all witnesses in petitioner's capital murder prosecution, especially where post-conviction court conducted no in camera examination of such records. Code 1975. & 12-15-100; Rules Crim.Proc., Rule 32.1 et seq. W01 Criminal Law C=0 I lOkO k. Defendant is not entitled to unfettered access to privileged documents. 1111 Criminal Law C0 110k0 k. ,
Post-conviction petitioner was unable to demonstrate good cause for discovery of bullet recovered from murder victim's body and shell casing found in area where victim was killed, where such items were introduced into evidence at petitioner's trial, and post-conviction claim petitioner sought to advance through use thereof was raised through testimony of state's expert at trial. Rules Crim.Proc.. Rule 32.1 et seq. [131 Criminal Law C0 ll_Ok0k. Post-conviction court improperly granted petitioner discovery of jail visitor sign-in sheets showing who visited petitioner and his three co-defendants in capital murder prosecution while they were in jail awaiting trial, where post-conviction court had already ruled that claims petitioner sought files to support, namely, that his co-defendant had entered into undisclosed "deals or agreements" with state, were procedurally barred. Rules Crim.Proc.. Rule 32. 1 et seq. L1 Criminal Law C=:;;10 I I0k0 k. Post-conviction petitioner was unable to demonstrate good cause for discovery of his own jail visitor sign-in sheets, where information contained therein was within petitioner's own knowledge. Rules Crim.Proc., Rule J et seq. [151 Criminal Law C0 I I0k0 k.
Post-conviction court improperly granted petitioner discovery of records of numerous agencies with respect to petitioner's father, where information contained
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therein, alleged by petitioner to be relevant in mitigation, was available through many other, less intrusive sources. jj6j Criminal Law 0 I lOkO k. Post-conviction court abused its discretion in allowing petitioner full access to files maintained by state Department of Human Resources (DHR) with respect to petitioner's father, especially where petitioner did not seek, and post-conviction court did not propose or conduct, in camera examination of such records, and where order granting petitioner access to DHR files directed DHR to violate its statutory obligation to treat such filed as privileged and confidential . 38-2-1 et s m., Ala.Code 1975 ; Code 1975, 15-22-36 j><. Criminal Law k=0 1 lOkO k. Petitioner does not have an unlimited and unqualified right to discovery in a postconviction proceeding. 1i 1 Courts O 106k0 k. Court of Criminal Appeals has no authority to adopt procedural rules of court; the sole responsibility for doing so rests with the state Supreme Court. Ala. Coast. of 1901, Amend No. 328, 6.11. Petition for Writ of Mandamus. Montgomery Circuit Court (CC-97-2300.60). PER CURIAM. *1 The State ofAlabama filed this petition for a writ of mandamus directing Judge Tracy S. McCooey to vacate the discovery orders relating to Shonelle Andre Jackson's petition for postconviction relief in which he attacked his capital -murder conviction and sentence of death. Jackson was convicted of murdering Lefrick Moore during the course of a robbery and was sentenced to death. Jackson's conviction and death sentence were affirmed on direct appeal. See Jackson v. State, 836 So.2d 915 (Ala.CrimAnn. 1999), affd, 836 So 2d 979(Ala.2002). In July 2003, Jackson filed a Rule 32, Ala.R.Crim.P.,
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petition attacking his conviction and death sentence. He filed an amended petition in March 2004. Jackson then filed two lengthy discovery motions relating to his Rule 32 petition. The State filed detailed objections to each motion. In October 2004, Judge McCooey held a hearing on the discovery motions ; after the hearing, she granted the motions. The State then filed this mandamus petition and a request that we stay all action in the circuit court pending this Court's disposition of this extraordinary petition. By order dated November 30, 2004, we stayed all action in the lower court and allowed the respondents 21 days to answer the allegations contained in the mandamus petition . Jackson has filed an answer in this case and the Department of Human Resources ("DHR") has filed a brief as amicus curiae. The State asserts that Judge McCooey failed to find good cause before she ordered discovery in this postconviction proceeding, that she erred in ordering discovery on issues that had been held to be procedurally barred, and that she exceeded the limited scope of discovery by ordering discovery of all criminal, mental-health, and correctional records of all witnesses for the State. It cites numerous other grounds in support of the issuance of this writ. N 1 ff1 Jackson's first discovery motion requested the production of the following records: all records of the Department of Corrections ("DOC") related to Louis Wendell Taylor, Jackson's father ; all medical, psychological, psychiatric, or mental-health records related to Jackson and his father; all records of the Alabama Board of pardons and Paroles ("the Board") related to Jackson and his father; and all DHR records related to Jackson and his father. The second discovery motion requested that the district attorney turn over its entire case file related to the victim's murder and its case files related to the prosecution of Shonelle Andre Jackson and his three codefendants-Antonio Barnes , Eric Williams, and Christopher Rudolph. The motion also requested "all documents related to all State witnesses who had testified at Jackson's trial," including but not limited to the witnesses' juvenile records, sentencing reports, arrest and conviction records, records of any
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law-enforcement authority, psychiatric , psychological, and mental-health records, and other records and reports. The motion further stated: *2 "This request specifically applies to, but is not limited to the following: the Montgomery County District Attorney's Office, the City of Montgomery Police Department, the Montgomery County Police Department, the Montgomery County Sheriffs Department, the Montgomery Fire Department, the Montgomery County Detention Facility, the Montgomery City Jail, the Montgomery Violent Crime Task Force, the Alabama Department of Youth Services, the Alabama Department of Corrections, the Alabama Department of Forensic Sciences, the Alabama Department of Pardons and Paroles, the Alabama Department of Mental Health and Mental Retardation, specifically including Taylor Hardin Secure Medical Facility and Bryce Hospital and the Montgomery County Juvenile, Family, District and Circuit Courts and the Montgomery Municipal Court." The State filed detailed objections to each discovery motion. Judge McCooey held a hearing, at which she stated: "I hear what you're saying, but I mean, we're talking about, you know, someone's life. Okay. So, I mean, the stakes are as high as they can get. You know, we're not talking about someone who is just going to prison for a number of years or whatever . I mean, we're-you know, the stakes are as high as they get. What is wrong with letting them have the discovery? If they are on a fishing expedition, then they're not going to be able to prove it anyway." (Emphasis added.) Judge McCooey then granted unlimited discovery from all departments and agencies listed in Jackson's discovery motions. L11 When ascertaining whether discovery is warranted in a Rule 32 proceeding, the court must first determine whether the Rule 32 petitioner has shown good cause for disclosure of the requested materials. As the Alabama Supreme Court stated in Ex parse Lan 775 So.2d 847 (Ala.2000): "We agree with the Court of Criminal Appeals that 'good cause' is the appropriate standard by which to judge postconviction discovery motions . In fact,
other courts have adopted a similar 'good-cause' or 'good-reason' standard for the postconviction discovery process. See [State vj Marshall, 1148 N.J. 89,690 A.2d 1. cert. denied, 522 U. S. 850,118 S.Ct. 140. 139 L.Ed.2d 88 (1997) ]; State v. Lewis. 656 So.2d 124$ (Flamm; People ex rel. Daley v. F1tzerala! 123 111.2d 175, 121 111.Dec. 937, 526 N.E.2d 131( 1988). As noted by the Illinois Supreme Court, the good-cause standard guards against potential abuse of the postconviction discovery process. See Fitzger ald. supra, 123 I11.2d at 183. 121 I1l.Dec . 937.526 N.Ed.2d at 135....
By adopting this standard, we are only recognizing that a trial court, upon a petitioner's showing of good cause, may exercise its inherent authority to order discovery in a proceeding for postconviction relief. In addition, we caution that postconviction discovery does not provide a petitioner with a right to 'fish' through official files and that it 'is not a device for investigating possible claims, but a means of vindicating actual claims.' People v. Gonzalez. 51 Cal.3d 1179. 1260, 800 P.2d 1159, 1206, 275 Cal.Rntr. 729. 776 (1990), cert. denied, 502 U.S. 835. 112 S.Ct. 117,116 L.Ed.2d 85 (1991). Instead, in order to obtain discovery, a petitioner must allege facts that, if proved, would entitle him to relief." *3 775 So.2d at 852. Though Alabama has had little opportunity to define what constitutes "good cause," in Ex parte Mack [Ms. CR-02-0341, April 25, 2003] --- So.2d ----, ---(Ala.Crim.App.2003), we quoted with approval an Illinois case the Alabama Supreme Court relied on in Land-People Y. Johnson. 205 111,26 381, 275 I11.Dec. 820, 793 N.E.2d 591 (2002): "'A trial court has inherent discretionary authority to order discovery in post-conviction proceedings. See Peg le ex red. Dal v. Fitz erald. 123 Ill.2d 175, 183.121 I11.Dec. 937, 526 N.E.2d 131 (1988); People v. Rose. 48 I11.2d 300, 302.268 N.E.2d 700 (1971). A court must exercise this authority with caution, however, because a defendant may attempt to divert attention away from constitutional issues which escaped earlier review by requesting discovery.... Accordingly, the trial court should allow discovery only if the defendant has shown "good
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cause, " considering the issues presented in the petition, the scope of the requested discovery, the length of time between the conviction and the post-conviction proceeding, the burden of discovery on the State and on any witnesses, and the availability of the evidence through other sources. Daley, 123 11.2d at 183 -84 121 I1l.Dec. 937, 526 N.E.2d 131: see People v. Fair 193 Ill.2d 256. 264-65, 250 Ill.Dec. 284, 738 N.E.2d 500 (200). We will reverse a trial court 's denial of a post-conviction discovery request only for an abuse discretion. 250 I 2 284 7,38 N.E,2d 500. A trial court d 6oes not abuse its se discretion in denying a discovery request which ranges beyond the limited scope of a post-conviction proceeding and amounts to a "fishing expedition." "' --- So.2d at ---- (quoting Johnson. 205111.2d at 408,
Cal.Rptr. at 775. 800 P .2d at 1205: see De u v. Taylor. 19 F.3d 1485, 1493 (3d Cir,), cert. denied, 512 U.S. 1230, 114 S.Ct. 2730 , 129 L.Ed.2d 853 11994); State v. Thomas. 236 Neb. 553,462 N.W.2d 862. 867-68 (1990). However where a defendant presents the PCR court with good cause to order the State to supply the defendant with discovery that is relevant to the defendant's case and not privileged, the court has discretionary authority to grant relief. See Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C.A. 2254 Rule 6(a); [ate v. j Lewis.... 656 So.2d [1248J 1250 [ (Fla.1994) ]; (People ex rel. Daley v.1 Fitzgerald r123 I11.2d 175,183, 1 121 I11.Dec. [937.1 941, 526 N .Ed.2d [131 ,] 135 [ (1998) ] (noting that 'good cause' standard guards against potential abuse of PCR discovery process)."
275 I11.Dec. at 836-37.793 N.E.2d at 607-08). See also State v. Lewis. 656 So.2d 1248 (F1a.1994). The New Jersey Supreme Court in State v. Marshall 148 N.J. 89,690 A.2d 1 (1997), a case also cited with approval by the Alabama Supreme Court in Land, stated: "We anticipate that only in the unusual case will a PCR [postconviction relief] court invoke its inherent right to compel discovery. In most cases, a post-conviction petitioner will be fully informed of the documentary source of the errors that he brings to the PCR court's attention. Moreover, we note that PCR'is not a device for investigating possible claims, but a means for vindicating actual claims.' Pew Gonzalez. $1 Ca1,3d 1179, 275 Cal. Rptr. 729. 776, 800 P .2d 1159, 1206 (1990), cert. denied, 502 U.S. 835.,.112 S,Ct- 117, 116 L.Ed.2d85(1921).The filing of a petition for PCR is not a license to obtain unlimited information from the State, but a means through which a defendant may demonstrate to a reviewing court that he was convicted or sentenced in violation of his rights.... "Moreover, consistent with our prior discovery jurisprudence, any PCR discovery order should be appropriately narrow and limited . '[T]here is no postconviction right to " fish" through official files for belated grounds of attack on the judgment, or to confirm mere speculation or hope that a basis for collateral relief may exist ' Gonzalez, supra. 275
*4 Marshad, 148 N.J. at 270-71.690 A.2d at 91-92. The federal courts have adopted a similar standard for discovery in relation to federal habeas corpus actions. FN2 In Murphy v. Bradshaw, [No. C-1-03- 053, September 13, 2003] (S.D.Ohio 2003) (not published), an Ohio court stated: "A habeas petitioner is not entitled to discovery as a matter of course, but only upon a fact-specific showing of good cause and in the Court's exercise of discretion. Rule 6(a), Rules Governing 122M Cases; Bracy v. Gramley,520 U.S. 899,117 S.Ct. 1793.138 L.Ed.2d 97 (1997); Harris v. Nelson. 394 U. S. 286, 89 S.Ct. 1082. 22 L.Ed.2d 281 (1969); rd v. Collins. 209 F.3d 486.515-16 (6th Cir.2000). Good cause exists 'where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief ...: Bracy, 520 U.S. at 908-909, quoting Harris. 394 U.S., at 300. 89 S.Ct., at 1091. Conversely, where a petitioner would not be entitled to relief on a particular claim, regardless of what facts he developed, he cannot show good cause for discovery on that claim." (Emphasis added.) "This authority [to order discovery in postconviction proceedings] must be exercised with caution, because of the potential for abuse of the discovery process and because of the limited scope of postconviction proceedings." People v. Williams. 209
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Ill.2d 227. 236. 282 I1l.Dec._ 824. 830. 807 N.Ed.2d 448, 454 (2004). "[T]he range of issues in a post-conviction proceeding is relatively narrow, and discovery requirements are correspondingly limited." People ax rel. Dabv v. Fitz2erala 123 I11.2d 175. 182. 121 III-Dec. 940, 526 N.E.2d 131, 134 ( 1988).
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With these standards in mind, we review the allegations contained in the State's petition for a writ of mandamus. 1. IQ The State first argues that Judge McCooey abused her discretion by ordering discovery without first determining whether the petitioner had shown good cause for the discovery. It is clear from reading the transcript of the discovery hearing that Judge McCooey failed to apply the correct standard when evaluating Jackson's discovery motions. As stated above Judge McCooey noted the severity of the sentence imposed in the case and stated: "What is wrong with letting them have the discovery? If they are on a fishing expedition, then they're not going to be able to prove it anyway." Because more discovery matters will arise in this case, we take this opportunity to offer the circuit court guidance in such discovery matters.
II. J U The State further argues that the circuit court erred in granting discovery of the files of the district attorney's office related to Jackson 's three codefendants in the capital-murder charges. [FN31 In Jackson's discovery motion, Jackson alleged that the files of his codefendants were necessary to prove his Bra v. Maryland 373 U.S. 23.83 S.Ct, 1194, 10 L.E4.2d 215 1 (969), claim because , he argued, the State failed to disclose "deals or agreements that had been entered into between the prosecution and the co-defendants who testified for the State."
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Brady claim as procedurally barred under Rule 32.2(a)(3) and (a)(5), Ala.R.Crim.P. Jackson refers to Judge McCooey's March 1, 2004, order in several footnotes in his second discovery motion. Jackson also states that he moved that Judge McCooey reinstate those issues she had previously found to be procedurally barred. However, the only order issued by the circuit court included in the exhibits filed with this petition is the order granting the discovery motions. We do know that the claims the circuit court had previously dismissed as procedurally barred were discussed at the discovery hearing. It was Jackson's contention that discovery would assist him in developing more facts on the issues that Judge McCooey had previously held to be procedurally barred. In Hooks v. State 822 So.2d 476 (Ala.Crim.App.2000), we held: "We agree with the State that a claim that is procedurally barred in a postconviction petition clearly is not one that entitles a petitioner to relief. If a postconviction claim does not entitle the petitioner to relief, then the petitioner has failed to establish good cause for the discovery of materials related to that claim. See Land." 822 So.2d at 481. "[I]f a particular claim is procedurally defaulted, no matter what facts a petitioner develops, he will not be able to show that he is entitled to relief. Therefore, there can be no good cause to allow discovery of facts underlying a procedurally defaulted claim." Murphy v. Bradshaw, [No. C-1- 03-053, September 13, 2003] -- F.Supp. -, ---- (S.D.Ohio).
fg Also, a review of the transcript of Jackson's trial shows that all three codefendants testified that they had not been offered any deals in exchange for their testimony. fFN41 Before Jackson's trial his attorney filed a pretrial motion styled a "Motion to Require the Disclosure of Deals and Inducements ." This motion requested the disclosure of "all deals or inducements of what type whatsoever for any witness to testify against Shonell[e] Jackson at trial." The record of the direct appeal shows that this motion was granted and that on February 2, 1998 , the circuit court gave the State seven days to disclose this information . It appears that Jackson had access to this information before trial.
*5 The exhibits filed with this mandamus petition show that on March 1, 2004, approximately seven months before the hearing on Jackson's discovery motions, Judge McCooey issued an other dismissing Jackson's
III. L51 The State also argues that Judge McCooey erred in
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allowing discovery of all criminal , mental-health, and correctional records for all witnesses who testified for the State at Jackson's trial. -r FN51 In Jackson's second discovery motion he requested the following: "All documents relating to any State witnesses at Shonelle Andre Jackson 's trial, including: 1) all juvenile detention, jail, prison, parole, probation, and pre-sentence investigation records ; 2) all sentencing reports; 3) all arrest, conviction, and adult and juvenile criminal offense records; 4) all records of any law enforcement authority, including all documents relating to any plea negotiations between any State witness and the State; 5) all records of any detention or court authority ; 6) all records of any prosecuting authority ; 7) all psychiatric, psychological, and mental health records; 8) all documents relating to any lie detector tests taken by any State witness; 9) all other records any reports." *6 The motion further stated that this information was requested from, but was not limited to, the following agencies : the Montgomery County District Attorney's Office, the City of Montgomery Police Department, the Montgomery County Sheriffs Department, the Montgomery Fire Department , the Montgomery County Detention Facility, the Montgomery city jail, the Montgomery Violent Crimes Task Force , the Alabama Department of Youth Services, the Alabama Department of Corrections , the Alabama Department of Forensic Sciences, the Alabama Department of Pardons and Paroles, the Alabama Department of Mental Health and Mental Retardation (specifically including Taylor Hardin Secure Medical Facility and Bryce Hospital), and the Montgomery County juvenile , family, district and circuit courts and the Montgomery municipal courts.
10 Jackson contends that these documents related to his Brady claim--a claim Judge McCooey had previously found was procedurally barred. When requested documents relate to a claim that is procedurally barred there can be no showing of good cause for the disclosure of the requested information. See Hooks.
the criminal records of a State witness . As this Court stated in Hardy v. State. 804 So.2d 247 LA1a.Crim.Auu.1999):
"As a general rule, the government need not disclose evidence available to the defense from other sources or evidence that the prosecution could not reasonably be imputed to have knowledge of or control over. Mills v. Singl^tary. 63 F,34 9991 1 1th Cir.1995). cert. denied, 517 U.S. 1214. 116 S.Ct. 1837 , 134 L.Ed.2d 940 (1996); United States v. Moore. 25 F.3d 563 (7th W. , cert. denied, 513 U.S; 939,115 S.Ct. 341, 130 L.Ed.2d 297 (1994).
"We have held in Alabama in a number of cases that a defendant is not entitled to the general disclosure of the criminal records of the state's witnesses. See, e.g., Davis v. State 554 So.2d 1094 Ala.Crim.A _Up. 1, affd, 554 So.2d 1111 (Ala.1989), cert. denied, 498 U.S. 1127, 111 S.Ct. 1091, 112 L.Ed.2d 1196 (1991); Wright v. State, 424 So.2d 684 ( la.Crim.Aop.1982) (no absolute right of disclosure of criminal records of state's witnesses); Mord v. . is
State. 423 So.2d 331 (Ala;Crim,Ann.1982 ); Mack v. State_375 So.2d 476 (Ala.Crim.Anp,1978), affd, 375 ,Q.2c1504 (Ala.1979 ), vacated on other grounds, 448 S U.S. 903, 100 S.Ct. 34 4. 65 L.Ed.2d 1134(1980). 4 We have also held that the trial court's refusal to order the prosecution , pursuant to a defendant's discovery motion, to provide the criminal record of each expected witness for the state was not a violation of Brady and its progeny . Davis v. State, 554 So.2d at 1100."
804 So .2d at 286.

j$j Also, Jackson requested and was granted unlimited access to the confidential mental-health records of all 20 witnesses for the State. Allowing unfettered access to this information was contrary to the decisions of the Alabama Supreme Court in Ex parte Western Mental Health Center 884 So.2d 835 (Ala.2003), and Exparte Rudder 507 So .2d 411 Ala. 1987 . As the Alabama Supreme Court stated in Ex parte Western Mental Health Center: *7 " 'Although Alabama law does not recognize a physician-patient privilege of confidentiality, the legislature has adopted a psychotherapist-patient privilege .' Ex parte United Serv. Stations, Inc.. 628 So.2d 501- 50 (Ala.1993 ). The Code section
jf, Moreover, a defendant is not entitled to discover
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adopting this privilege, & 34-26-2. Ala.Code 1975. states, in pertinent part: " '[T]he confidential relations and communications between licensed psychologists , licensed psychiatrists, or licensed psychological technicians and their clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.' "Additionally, '[i]t is not disputed that ... medical records, created during the psychiatrist -patient relationship, are included in the confidential relationship and are also privileged .' Ex parse Rudder, 507 So.2d 411, 413 (-Ala.1987). This privilege, we have held, is strongly rooted in public policy: " ' "[A] psychiatrist must have his patient's confidence or he cannot help him. 'The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition .... It would be too much to expect them to do so if they knew that all they say--and all that the psychiatrist learns from what they say--may be revealed to the whole world from a witness stand.' " 'Taylor v. United States. 222 F.2d 398. 401 {D.C.Cir.1955), quoting Guttmacher and Weihofen, Psychiatry and The Law (1952), p. 272.'
"Rudder. 507 So.2d at 413. Furthermore, the meaning of the Alabama psychotherapist-patient privilege statue is clear from the plain language ofthe statute itself. See United Serv. Stations, 628 So.2d at 504 (citing King v. National Spa & Pool Inst.. 607 So.2d 1241. 1246 (Ala.1992)).
74 (Ala.Civ.App.1986)). The Court has also recognized another exception where a defendant in a criminal trial raises the defense of insanity. See Salmon v. State, 460 So .2d 334, 337 (Ala.Crim,App:1984). Additionally, Alabama recognizes exceptions for communications relevant in proceedings to hospitalize a patient for mental illness, communications made during a court-ordered examination of the mental or emotional condition of a party or witness , and communications concerning a breach of duty arising out of the psychotherapist-patient relationship . Rule 503. Ala.R.Evid." *8 884 So.2d at840. 1`91[101 Last, the circuit court's ruling erroneously granted Jackson unlimited access to juvenile records related to all 20 witnesses for the State. Discovery of information regarding juveniles is severely limited by 1 12-15- 100, Ala.Code1975. A defendant is not entitled to unfettered access of privileged documents. In im ed to aye Lcha ourt held that le thisthe de fen4da t wags e nti to have C sl the trial court examine in camera privileged records, i.e., the child victim 's psychiatric records and records relating to the child kept by DHR, so that the court could determine whether the privilege yielded to the defendant ' s rights of confrontation and cross-examination. See also D.P. v. State, 850 So.2d 370 (Ala.Crim.App.2002). Here, the trial court conducted no in camera examination of the privileged documents. TV. j 11 j The State also argues that the circuit court erred in granting discovery ofthe juror questionnaires and other documents related to the jury-selection process. Jackson alleged in his discovery motion that the information on jury selection was necessary to prove his claim of juror misconduct and his claim that his trial counsel rendered ineffective assistance in failing to adequately raise a Batson v. Kentucky. 476 U.S. 79,106 S.Ct. 1712. 90 L.Ed.2d 69 (1986), and a J.E.B. v. Alabama, 511 U.S. 127. 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), objection at trial.
"There are five recognized exceptions to the psychotherapy-patient privilege. First, '[t]his Court has recognized an exception to the privilege where, in a child custody matter, the mental state of one of the parents is at issue and a proper resolution of child custody requires disclosure of otherwise privileged psychiatric records .' United Serv. Stations, Inc.. 628 So-2d at 504 (citing Harbin v. Harbin. 495 So.2d 72,
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The State argues that Jackson cannot show good cause for the disclosure of this information because the juror-misconduct claim is procedurally barred. On March 1, 2004, Judge McCooey dismissed Jackson's juror-misconduct claim as procedurally barred based on Rule 32.2.2(a)(3) and (a)(5), Ala.R.Crim.P. "If a postconviction claim does not entitle the petitioner to relief, then the petitioner has failed to establish good cause for the discovery of materials related to that claim." Hcjaks; 822 So,2d at 481.
been fired from either Jackson 's 9mm pistol or the .357 pistol belonging to one of his codefendants.
The State contends that Jackson cannot show good cause for access to these items because the State's expert testified at Jackson's trial that the bullet recovered from the victim could have been fired from either a 9mm pistol or a. 357 pistol.
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Moreover, the State asserts that this Court on direct appeal addressed the Batson andJ. E. B. claims and held that the claims were without merit; therefore, it argues, there can be no good cause for discovery of documents relating to the jury-selection process. A majority of this Court in Woods v. State, [Ms. CR-02-1959, August 27, 2004] --- So.2d ----, -(Ala.Crim.App.2004), stated: "Clearly, then, when this court and/or the Alabama Supreme Court has specifically addressed and rejected a substantive claim on direct appeal, whether reviewing for plain or preserved error, a petitioner in a Rule 32 proceeding who raises an ineffective-assistance claim based on that same substantive claim cannot establish prejudice under Strickland" (Footnote omitted.) The substantive claims related to Jackson's ineffective-assistance-of-counsel claims were determined on direct appeal to be without merit; therefore, Jackson can show no good cause for the disclosure of information related to those claims. See Mack V. i l2]. The State further argues that the circuit court erred in allowing Jackson access to the bullet recovered from the victim's body and the shell casing found in the area where the victim was killed, which were introduced at Jackson's trial.
A review of the record of Jackson's trial supports the State's assertion. This evidence was presented at Jackson's trial; therefore, Jackson's claim is without merit. Accordingly Jackson can show no good cause for the disclosure of materials related to this claim. See Hooks. VI. 13 The State asserts that the circuit court erred in granting discovery of the jail visitor sign-in sheets showing who visited Jackson and his three codefendants while they were in jail awaiting trial. Jackson argued in his discovery motion that the information related to his codefendants was necessary to prove his Brady claim. However, the circuit court dismissed this claim as procedurally barred; therefore, Jackson can not show good cause for the disclosure of information related to this claim. Hooks, supra. a 4J Moreover, there was no good cause for disclosing the jail visitor sign-in sheets for Jackson because this was information within Jackson's own knowledge. Certainly, Jackson could inform his Rule 32 counsel of the identities of the individuals who visited him while he was incarcerated. This information was clearly available through other less intrusive means; therefore, Jackson can show no good cause for disclosing information related to this claim. See Ex parte Mack, supra. VII. 15 The State also argues that it was error for the circuit court to grant access to the records of various agencies related to Louis Wendell Taylor-- Jackson's father. Jackson's discovery motion requested the following: "Any and all records pertaining to Louis Wendell
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*9 Jackson contended in his discovery motion that this access was necessary to support his claim that his trial counsel had been ineffective for failing to procure a firearm expert who would have testified that the projectile recovered from the victim's body could have
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Taylor generated or maintained by the Alabama Department of Corrections, including but not limited to all intake, assessment, institutional, personal, disciplinary, medical psychological, psychiatric and mental health records, and any other records generated or maintained by any prison, medical facility or provider, or any other entity associated with the Alabama Department of Corrections, including but not limited to Holman Prison, Kilby Correctional Facility, Easterling Correctional Facility, Taylor Hardin Secure Medical Facility, and Bryce Medical Facility." The motion also requested records from the DHR and the Board that pertained to Taylor. Jackson asserted that this information was necessary to show that Jackson's father had been either in jail or on drugs or abusing alcohol during Jackson's early years--proper mitigating evidence, he argues, that should have been presented at the penalty phase of his capital trial. *10 The State argues that this information was available through many other sources and that the requested records are not necessary to support this claim. It further asserts that "for the above agencies to be forced to go through twenty or more years of records for such information is unduly burdensome and time consuming." We agree with the State. Clearly, this information was available from Jackson's father and from other family members. It was not necessary to grant such intrusive discovery when this information was available through many other sources. See Ex parts Mack (a court must consider the burden on the individuals affected by the discovery motion and the availability of the requested evidence through other sources when determining whether a petitioner has shown good cause for the materials or information requested). VIII. H 61 DHR has filed an amicus curiae brief in which it argues that the circuit court erred in granting Jackson full disclosure of its files related to Taylor without first reviewing those files in camera. It further asserts that granting full discovery of its files violates DHR's
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statutory obligation to ensure the confidentiality of its records. See & 38-2-1 et seq., Ala.Code 1975. DHR states in its brief: "DHR cannot accomplish its duties, including the duty to maintain the confidentiality of our records and to disclose information only when the appropriate steps have been taken by our independent legal staff, when we are left without notice that our records are being sought and when we have no opportunity before an order is entered to provide the Court with information concerning the laws governing our records. "DHR acknowledges that criminal defendants may obtain access to protected information by establishing that they have a constitutional entitlement to it based on due process principles. Access to information on constitutional grounds is limited to that material and exculpatory evidence which is essential to the fairness of the trial. Before discovery of protected DHR information may be obtained, however, a court must find that the information contains material and exculpatory evidence essential to the fairness of the trial. ID (DHR's amicus curiae brief at pp. 8-9.) According to our holding in Gibson v. State, 677 So.2d 233 (Ala.Crim.Ao.1994), the circuit court abused its discretion in allowing Jackson unlimited access to DHR's files. As we stated in Gibson: "While it is clear that the defendant himself may not peruse the files, this court has said that in cases such as this one, where neither the parties nor the trial court has seen the files requested by the defendant, '[A]n appellant is entitled, upon request, to have the trial court conduct an in camera review of the victim's completefile maintained by DHR in order to determine whether that file contains any exculpatory information.' Coats v. Stat 615 So.2d 1260, 1261 (Ala.Crim.App.1992) (emphasis in the original). See also Pennsyh'an_ is v. Ritchie, 480 U.S. [391 at 58. 107 S.Ct. [9891 at 1001-02 94 L.Ed.2d 4 [ (1987)
I.
*11677 So.2d at 236. Clearly, the circuit court should have first reviewed the DHR files in camera before granting discovery of those files. Moreover, the circuit court's order, which allows
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access to the Board's files, directs the Board to violate 15-22-36(h). Ala.Code 1975. The records maintained
by the Board are not subject to inspection. See 15-22-36(bb). Ala.Cod e_ 1975 . In Ex parte Alabama _ Board of Pardons & Parolees 814 o.2 870 A( 1a,2001), the Alabama Supreme Court stated the following concerning & 15-22-36(b): "Principles of statutory construction bind this Court to interpret plain language of a statute 'to mean exactly what it says' and to engage in judicial construction only if the language in the statute is ambiguous . Exparte Alabama Great Southern RR.. 788 So.2d 886. 889 (Ala.2000), quoting Blue Cross & Blue Shield v. Nielse 714 So.2d 293 , 296 Ala.199$ . The Legislature stated in 15-22-36 Ala.Code 1975, with specificity and particularity, that 'all other portions of the file shall be privileged.' A plain reading of the statute indicates that the Legislature created an absolute privilege to provide individuals and entities an unfettered opportunity to provide information to the Board , without exposing the individuals and entities to public scrutiny and potential retaliation . To hold otherwise, this Court would have to engage in improper judicial construction.
review of this petition and the exhibits filed with the petition shows that the majority of the requested discovery was unrelated to the claims raised in the Rule 32 petition, was unrelated to the case, and appeared to be merely an attempt to conduct a fishing expedition through all of the many and varied department and agency files--a good portion of which contain privileged and confidential information.
IX. The State last requests that we take this opportunity to adopt procedural safeguards for discovery in Rule 32 proceedings that will protect nonparties to the litigation. The State in its brief contends:
it
3 "Se tiion 15-22-3 6(b). Ala.Code 1975, clearly and unambiguously establishes an absolute privilege that the Board is legally bound to obey and the circuit court is under a duty to uphold." 814 So.2d at 872-73. 17 The State has met its burden of establishing the prerequisites for the issuance of this writ ofmandamus. Staten, Williams, 679 So.2d275(Ala.Crim.App.1996). To grant such broad and unfettered discovery motions as those granted in this case would result in the expenditure of great time, resources, and money for all the affected agencies--over 20 State and non-state agencies and departments . We can find no other case in which the discovery motions were as extensive as the motions filed and granted in this case . A petitioner does not have an unlimited and unqualified right to discovery in a postconviction proceeding . In Land, the Supreme Court adopted a standard of good cause--it did not elect to adopt the broader standards for discovery that are contained in the Alabama Rules ofCivil Procedure. Our
* 12 "The facts in Jackson illustrate the shortcomings of current Rule 32 discovery practice and require this Court to bring some adversarial testing and safeguards into the process ; at a minimum to ensure the 'good cause' standard is being met and that nonparties receive notice that items held by (or relating to) them are being sought prior to the entry of a court order. "It is time for this Court to apply Rules 37 and 45 of the Alabama Rules of Civil Procedure [ 11?N61]--in addition to the preliminary 'good cause' inquiry--to discovery in Rule 32 cases. Because the Alabama Rules of Civil Procedure do not apply to Rule 32 cases, according to Rule 32.4, this Court must craft these protections by reviewing the process created in Land, and clarify the legal issues that restrict the discretion oftrial courts to grant discovery in Rule 32 in a published opinion. If this Court does not formally adopt Rules 37 and45 ofthe Alabama Rules of Civil Procedure, it should, at a minimum, adopt the safeguards contained therein by requiring notice to all parties ofthe discovery sought, advanced notice to the nonparties who will be subjected to the requested discovery order (with an opportunity to appear and be heard through a reasonable waiting period), as well as the sanctions provision of Rule 45(c) of the Alabama Rules of Civil Procedure, which requires the party seeking discovery to attest to taking 'reasonable steps' to avoid imposing undue burden or expense on those subjected to the ever increasing discovery requests generated in these collateral proceedings." (State's brief at page 27-28.)
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18 This Court has no authority to adopt procedural rules of court--the sole responsibility for doing so rests with the Alabama Supreme Court. See Ala. Const. of 1901, Amend No. 328, 6.11. We urge that court to address the problems exemplified by this case at its earliest opportunity. The circuit court clearly erred in issuing the broad and unlimited discovery orders in this case. For the foregoing reasons, this petition is due to be, and is hereby, granted . We issue the writ and direct Judge McCooey to vacate her rulings on Jackson's two discovery motions. PETITION GRANTED; WRIT ISSUED; STAY LIFTED.
District Courts provides : "A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." See also Bract/ v. Gramley 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 11997). FN3. Jackson also requested and was granted access to the district attorney's file on himself. The State does not contest the disclosure of this material. FN4. This Court may take judicial notice of its own records. See Hull v. State. 607 So.2d 369. 371 (Ala.Crim.App.1992 . FNS. The consequences of this request are enormous . The State presented 20 witnesses who testified at Jackson's trial. In addition to Jackson's three codefendants, the following people testified for the State: the victim's wife and his mother, five witnesses to the events, five City of Montgomery police officers, three forensic technicians, a medical examiner, and a City of Montgomery fireman. FN6. Rule 37, Ala.R.Civ.P., entitled "Failure to Make Discovery; Sanctions" states in part (a): "A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows ...." Rule 45. Ala.R.Civ.P., addresses the issuance of subpoenas. 2005 WL 628485 (Ala.Crim.App.) END OF DOCUMENT
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McMILLAN. P.J., and COBB.BASCHAB, and WISE. JJ., concur; SHAW, J ., concurs in part and concurs in the result, with opinion. SHAW. Judge, concurring in part and concurring in the result.
I concur in Parts I through VIII of the main opinion and I concur in the result reached in the opinion. I do not, however, agree with the rationale in Part IX. As I understand the main opinion, the trial court is directed to vacate its rulings on the two discovery motions and to reconsider Jackson's discovery requests in light ofthe applicable law cited in the opinion and by applying the appropriate "good cause" standard discussed in Er parte Land 775 So.2d 847 (A14.2000), and Er parte Mack [Ms. CR-02-034 1, April 25, 2003] --- So.2d ---(Ala.Crim.App.2003).
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FN 1. A petition for a writ of mandamus has been used to review issues related to discovery in Rule 32, Ala.R.Crim.P., petitions. See & parte Land 775 So.2 4 847 (Ala.2000), and Ex parse Mach [Ms. CR-02-0341, April 25, 2003] --- So.2d ---- (Ala.Crim.App.2003). FN2. Federal habeas corpus actions filed under 2$ U.S.C. 2254 are similar to our Rule 32 proceedings . Rule 6(a) of the Rules Governing & 2254 Cases in the United States
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FIFTEENTH JUDICIAL CIRCUIT CIRCUIT COURT CASE NO. CC-97-2300.60 SHONELLE ANDRE JACKSON,
Petitioner V. STATE OF ALABAMA,
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ORDER
Respondent
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This cause is before the Court upon Order of the Alabama Court of Criminal Appeals granting the State of Alabama's Petition for Writ of Mandamus and directing this Court to vacate'its rulings an the Petitioner's discovery motions. Upon consideration of the same, it is ORDERED that this Court' s rulings on hereby vacated and held for naught. Petitioner Jackson's discovery motions are
. DONE and ORDERED this the 23rd day of March,
CIRCUIT JUDGE
CC: Alabama Court of Criminal Appeals Jeremy McIntire , Office of Attorney General
Bryan A. Stevenson & Angela L . Setzer, Equal Justice Initiative of Alabama Office of General Counsel, Alabama Department of Human Resources 1V
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IN THE ALABAMA COURT OF CRIMINAL APPEALS NO.

EX PARTE STATE OF
ALABAMA
IN RE:
SHONELLE ANDRE JACKSON, PETITIONER,

vs. STATE OF ALABAMA,
RESPONDENT.
PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE TRACY S. MCCOOEY , CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT
TROY KING Attorney General
And
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James R. Houts ASSITANT ATTORNEY GENERAL
Jeremy McIntire ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL CAPITAL LITIGATION DIVISION ALABAMA STATE HOUSE 11 SOUTH UNION STREET MONTGOMERY , ALABAMA 36130
(334) 242--7408
TABLE OF CONTENTS
TABLE OF CONTENTS .................................... i INDEX TO EXHIBITS .................................. iii TABLE OF AUTHORITIES ................................ iv PETITION FOR WRIT OF MANDAMUS ........................ 1
STATEMENT OF FACTS NECESSARY TO AN UNDERSTANDING OF THE ISSUE PRESENTED . ....................................... 1
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STATEMENT OF THE ISSUE ............................... 2 Did the trial court err in granting Jackson's discovery requests without regard for whether "good cause" had been established? .............. 2 SUMMARY OF ARGUMENT .................................. 2 The Standard of Review for Mandamus .................. 3 ARGUMENT ............................................. 4 I. The Trial Court Abused Its Discretion By Granting Jackson's Discovery Requests Without First Determining That "Good Cause" Existed As Required By Land And Mack . . . . . . . . . . . . . . . . 4 A.The Trial Court Abused Its Discretion By Allowing Discovery On Jackson's Brady Claim .. 6 B.The Trial Court Abused Its Discretion By Allowing Jackson Access To The Criminal, Mental Health, And Correctional Records Of All State Witnesses ...................................... 11 C.The Trial Court Abused Its Discretion By Allowing Jackson Access To Juror Questionnaires And Other Documents Relating To The Jury And The Jury Selection Process In Montgomery County . ..................................... 14
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D.The Trial Court Abused Its Discretion By Allowing Jackson Access To The Bullet And Shell Casing Introduced Into Evidence At Trial. ... 16 E.The Trial Court Abused Its Discretion By Allowing Jackson Access To Any And All Visitor Sign In Sheets And/Or Logs Of Visitors To Himself And His Co - Defendants . .............. 17 F.The Trial Court Abused Its Discretion By Allowing Jackson Access To Any And All Criminal And Corfectional Records Of His Father, Louis Wendell Taylor . .................... 19 II. This Court Is Due To Adopt Procedural Safeguards For The Rule 32 Discovery Process That Will Protect Nonparties To The Litigation.
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. .. . . . . . . . . . . . . . . 21
CONCLUSION .......................................... 30 CERTIFICAT E OF SERVICE .............................. 31
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INDEX TO EXHIBITS
EXHIBIT A EXHIBIT B
Jackson's Amended Rule 32 Petition

State's Answer to Jackson's Amended Rule 32 Petition State's Motion to Dismiss Procedurally Barred Claims
EXHIBIT C
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EXHIBIT D
State' s Motion to Dismiss Insufficiently Plead Claims

State's Motion to Dismiss Claims Pursuant to Rule 32.7(d) Jackson's Motion for Discovery of Institutional Records, Files, and Information Necessary to a Fair Rule 32
EXHIBIT E
EXHIBIT F
Evidentiary Hearing
EXHIBIT G
Jackson's Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing
State's Response to Jackson's Motion for Discovery of Institutional Records, Files, and Information Necessary to a Fair Rule 32 Evidentiary Hearing State' s Response to Jackson's Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing Jackson' s Response to the State's Opposition to his Discovery Requests
EXHIBIT H
EXHIBIT I
EXHIBIT J
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EXHIBIT K
Transcript of the October 13, 2004 Hearing Held On the Parties Motions Court's Order Of October 13, 2004
iii
EXHIBIT L
TABLE OF AUTHORITIES
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Cases
Barbour v. State, CR-00-1731, 2004 WL 1418383, at *9 (Ala. Crim. App. June 25, 2004) ..................... 8 Ex parte Coleman, 728 So. 2d 703 (Ala. Crim. App. 1998) ............................. 5
Ex carte Land , Ex parte Mack , Ex parte State Ex p arte State 775 So . 2d 847 ( Ala. 2000 ) ......... 4, 5 ( Ala. 2003 ) ... 4, 13, 20 2d 476 ...... 15, 18, 29 State ), 822 So. 2d 476
2003 WL 1950008 ( Hooks ), 822 So .
( In re: Hooks v .
(Ala. Crim. App . 2000 ) .............................. 8 Ex parte State of Alabama ( Hooks ), CR-99-2212, 2000 WL 1496807 ( Ala. Crim . App. Oct . 6, 2000 ) .......... 3
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Ex parte Western Mental Health Center, 2003 WL

23025579 Head v . ( Ala. 2003 ) .......................... 13, 27 590 S.E.2d 122(Ga. 2003 ) ......... 23
Stripling ,
Hill v. State, 651 So. 2d 1128

(Ala. Crim. App. 1994) ............................ 23 Jackson v. State, 836 So. 2d 915
(Ala.
Cram.
App.
1999)
16
McGowan v. State, 2003 WL 22928607, at *24 (Ala. Crim. App. 2003) ............................ 13 Payne v. State, 791 So. 2d 383, (Ala. Crim. App. 1999) ............................ 12
People ex ref Daley v. Fitzgerald, 526 N.E.2d 131 (I11. 1988) .......................................... 6 People ex rel Daley, 526 N.E.2d at 135 .............. 20
iv
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People v . Johnson, 2002 WL 592153, at *14 (Iii. 2002) ............................... I
Peoples v. State, 531 So. 2d 323 (Ala. Crim. App. 1988 ) ............................. 5 Stano v. Butterworth, 51 F.3d 942 (11th Cir. 1995) .. 23 U.S. v. Battle, 264 F . Supp.2d 1088 ( N.D. Ga . 2003) .. 23
Wilson v. State, 650 So. 2d 587 (Ala. Crim. App . 1994 ) ............................ 10 Woods v. State , 2004 WL 1909291 (Ala. Crim. App. Aug. 27, 2004) ................... 14
Statutes Ala. Code 12-2-9 (1975) ............................ 3
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Ala. Code 38-2-4 (1975) ........................... 25
Other Authorities
ALA. CONST. 1901, Amend. No. 328, 6.03 ............... 3 Rule 6 of the Rules Governing Section..2254 Cases
in the U.S. District Courts ....................... 29

Rules Rule 32.7(d) Ala.R.Crim.P . .......................... 15 Rule 21 Ala. R. App. P . .............................. 1 Rule 32 Ala.R.Crim.P . ................................ 1 Rule 32.2, Ala.R.Crim.P . ............................. 8 Rule 45(c) of the Alabama Rules of Civil Procedure -.28
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PETITION FOR WRIT OF MANDAMUS
Comes now the State of Alabama, by and through its Attorney General, and petitions this Court pursuant to Rule 21 of the Alabama Rules of Appellate Procedure to issue a
writ of mandamus instructing the Honorable Tracy S. McCooey, Circuit Judge for the Fifteenth Judicial Circuit, to rescind her order granting post-conviction discovery to Rule 32 petitioner Shonelle Andre Jackson. In support
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thereof, the State asserts as follows:

STATEMENT OF FACTS NECESSARY TO AN UNDERSTANDING OF THE ISSUE PRESENTED
This matter involves a post-conviction proceeding under Rule 32 of the Alabama Rules of Criminal Procedure. The petitioner, Shonelle Andre Jackson, filed his petition for
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relief from conviction and sentence of death on July 30, 2003. The State filed its answer to Jackson's Rule 32 petition on October 27, 2003. Jackson filed an amended Rule 32 petition on March 31, 2004. The following day, Jackson filed two motions for discovery: 1) Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing, and 2) Motion for Discovery of Institutional Records, Files, and Information Necessary to a Fair Rule 32 Evidentiary Hearing.
The State filed its answer to the amended petition on May 28, 2004, along with objections to Jackson's motions for discovery together with motions for summary dismissal of procedurally barred claims, summary dismissal of claims
pursuant to Rule 32.7(d), and summary dismissal of insufficiently pleaded claims. On October 13, 2004, the trial court heard the State's motions to dismiss and Jackson's motions for
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discovery. Without ruling on the State's pending motions to dismiss and over the State's objections, Judge McCooey granted all Jackson's discovery motions. Judge McCooey then invited the State to seek a writ of mandamus with this Court to review her decision. STATEMENT OF THE ISSUE Did the trial court err in granting Jackson's discovery requests without regard for whether . "good cause " had been established?
SUMMARY OF ARGUMENT
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The Montgomery County Circuit Court abused its discretion by granting Jackson's motions for discovery before resolving the State's assertions of procedural bars and insufficient pleadings. The circuit court explicitly violated the holdings of Ex parte Land, 775 So. 2d 847
(Ala. 2000), and Ex parte Mack, 2003 WL 1950008 (Ala. 2003)
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that require that the petitioner first demonsttate "good cause" before the trial court may grant discovery. Instead, the trial court granted discovery based on the sole criterion: "There's no harm in letting the discovery be done". Additionally, the trial court ignored both the legal rights and interests of third parties, and increased the costs of this postconviction proceeding to both the judicial and executive branches of government.
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The Standard of Review for Mandamus For the writ of mandamus to issue, the State must establish: (1) a clear legal right to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) no adequate remedy at law; and, (4) the properly invoked jurisdiction of the reviewing court. E.g., Ex parte State of Alabama (Hooks), 2000 WL 1496807 (Ala. Crim. App. Oct. 6, 2000). This Court has original jurisdiction over the issuance and determination of writs of mandamus in relation to matters within its jurisdiction. ALA. CONST. 1901, Amend. No. 328, 6.03. Pursuant to ALA. CODE 12-2-9, this Court has exclusive appellate jurisdiction over all felonies, habeas
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corpus matters, and post-conviction writs in criminal
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cases. This Court has often used mandamus as a'method of reviewing discovery orders granted by a Rule 32 court in collateral criminal proceedings.
ARGUMENT 1. The Trial Court Abused Its Discretion By Granting Jackson ' s Discovery Requests Without First Determining That " Good Cause " Existed As Required By Land And Mack.
The instant petition for writ of mandamus offers this Court an opportunity to provide further guidance on an issue -- discovery in postconviction proceedings -- that has become increasingly misused, leading to an abuse of the postconviction process.1 By abusing its discretion below and
granting Jackson's motions for discovery before resolving the State's assertions of procedural bars and insufficient pleadings, the circuit court explicitly violated the holding of Ex arte Land, 775 So. 2d 847 (Ala. 2000), and Ex Parte Mack, 2003 WL 1950008 (Ala. 2003). By doing so, the circuit court increased the costs of this
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postconviction proceeding to both the judicial and executive branches of government.
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' N.b. The circuit court invited the State to file the instant petition for writ of mandamus to clarify this issue.
As this Court noted in Ex parte Coleman, 728 So. 2d 703
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(Ala. Crim. App. 1998), its docket is clogged'with postconviction cases -- 26.6 percent of the Court's 19971998 term docket. In 1988, this Court recognized the flood of postconviction proceedings that have come to threaten quick justice. See, Peoples v. State, 531 So. 2d 323 (Ala. Crim. App. 1988)...Against this backdrop, the Court in Land limited discovery to appropriate cases while cautioning against abuse of the postconviction process. Thus, while holding that trial courts had discretion to grant discovery in Rule 32 cases, the Court noted:
We caution that postconviction discovery does not provide a petitioner with a right to "fish" through official files and that it "is not a device for investigating possible claims, but a means of vindicating actual claims".
Land, 775 So. 2d at 852. The Court held that a petitioner had to establish "good cause" based on meritorious claims in the petition to vest the trial court with discretion to grant discovery. More recently, in Ex parte Mack, this Court defined the five criteria that determine whether a petitioner has established "good cause" for post-conviction discovery:
'Al
`the issues presented in the petition, the scope of the
requested discovery, the length of time between the conviction and post-conviction proceeding, the'burden of discovery on the State and on any witnesses; and the availability through other sources."' 2003 WL 195008, at
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*3
(Ala. Crim. App. Apr. 25, 2003)(quoting People v. Johnson, 2002 WL 592153, at *14 (Ill. 2002)(citing People ex rel Daley v. Fitzgerald, 526 N.E.2d 131, 135(I11. 1988)). As shown below, rather than following these criteria, the trial court granted discovery based on the sole notion that, "There's no harm in letting the discovery be done, but there is big harm in not letting it be done." (Exhibit K at 28)
A. The Trial Court Abused Its Discretion By Allowing Discovery On Jackson ' s Brady Claim.2 The trial court granted Jackson's motion for access to
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the Montgomery County District Attorney's files relating to the prosecution of not only Jackson, but also his codefendants. (Exhibit L) Additionally, the trial court's order granted Jackson's request for access to any case
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2 Due to the page constraints of petitions for writ of mandamus, the State is unable to discuss every item of discovery that the trial court erred in granting. The State has discussed the most flagrant examples of the trial court's abuse of its discretion in granting discovery. If, however, this Court finds that the trial court did, in fact, grant blanket discovery without undertaking the required "good cause" analysis - as shown in the State's argument below - then this Court would have an obligation to vacate the entire order with instructions for the trial court to reconsider the issues under the correct analysis and use the appropriate principles.
files related to any prior prosecution of Jackson or his co-defendants, regardless of whether the prior prosecution was related to the subject of the current Rule 32 proceeding: Jackson's conviction and death sentence for the
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capital murder of LeFraich Moore.3 This discovery request was reportedly linked to Jackson's allegation in his Rule 32 petition that the State entered into undisclosed deals with Jackson's co-defendants.
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The State asserted that this claim was procedurally barred, however, in addition to being insufficiently specific under Rule 32.6(b). (Exhibit B at 63-68) In pleading this claim, Jackson alleged the following facts:
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In this case, the State failed to turn over to defense counsel the evidence of - among other things --- deals or agreements that had been entered into between the prosecution and the codefendants who testified for the state.
(Exhibit A at 65, 1166) This one sentence represents Jackson's entire factual pleading of this claim.4 As this Court noted in Barbour v. State, CR-00-1731, 2004 WL
3 The request for access to all prior prosecutions of Jackson and his codefendants was not linked in any manner to his Brady claim. The trial court abused its discretion in granting discovery concerning unrelated prior prosecutions that have no relevance in the current proceedings. See Ex parte Mack, 2003 WL 195008, at *4 n.7 ("Mack has failed to connect the majority of the requested law-enforcement agency files with his case. Most appear to be outside of the area where the murder occurred and totally unconnected to the case. It appears that this motion is merely a `fishing expedition.'"). 4 Jackson also alleges seven other Brady violations in the same conclusory manner without any underlying factual basis. (Exhibit A at 66-67, 4 167)
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1418383, at *9 (Ala. Crim. App. June 25, 2004), "[a] Brady claim is subject to the procedural default grounds contained in Rule 32.2, Ala.R.Crim.P." According to Rule 32.3, once the State pleads a ground of preclusion, "the petitioner shall have the burden of disproving its existence beyond a preponderance of the evidence." Because the State pleaded"procedural bars in response to this Brady claim, the grant of the requested discovery was in the face of an un-rebutted presumption that the claim was procedurally barred. Such a ruling also flies in the face of this Court's holding in Ex parte State (In re: Hooks v. State), 822 So. 2d 476 (Ala. Crim. App. 2000), that discovery was inappropriate - and mandamus was appropriate -- where the trial court granted discovery as to procedurally barred claims in a Rule 32 petition. The trial court was aware of
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the existence of Hooks when it issued its ruling.
The trial court's reasons for failing to abide by this Court's holding in Hooks are disturbing. The trial court admitted that it would be a fishing expedition, stating "What is wrong with letting them have the discovery? If they are on a fishing expedition, then they're not going to
1
be able to prove it anyway. I mean they can't create things
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that aren't there." (Exhibit K at 24) This line of reasoning has no basis in the law; instead, it allows the petitioner to "investigate possible claims" rather than "vindicating actual claims" as mandated by Land. Such reasoning allows a trial court to impose burdensome discovery on the-State with no regard for the law and no regard for the facts of the case. The petitioner has not offered any information to ceate any inference or suspicion that the State decided to violate the law, the rules governing the practice of law,
and personal standards of morality in deciding to recklessly pursue a conviction. To grant discovery without such evidence leaves the clear impression that the courts of this State will review the actions of Alabama prosecutors with a more wary eye than they will review the
actions of defendants convicted of capital crimes.5 The inference that the State would blatantly disregard its ethical duties is more repugnant in the light of testimony
5 This Court will not presume a capital defendant/petitioner engaged in misconduct or criminal behavior just because he has a lengthy criminal record or because he may have a huge incentive to do whatever it takes to gain a new trial or sentencing proceeding. Why, then, is it permissible for a trial court to presume that a prosecutor, who is legally and ethically required to reveal deals with co-defendants, might have violated that duty in the absence of information that would make such a presumption reasonable?
at Jackson's trial at which the co-defendants in question were asked under oath whether they had been given deals or any consideration in exchange for their testimony. All replied that they had not and that they were there only to tell the truth. (R. 299-300, 369-370, 424) This Court, in Wilson v. State, 650 So. 2d 587 (Ala. Crim. App. 1994),'-noted that the failure to plead facts which would directly contradict facts contained in the
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trial record is a sufficient ground on which to deny relief. In Wilson, this Court wrote:
The appellant has the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle him to relief. Rule 32.3. While he states his grounds for relief in his petition, he fails to set out any facts in support of those grounds. The petition must include "full disclosure of the factual basis of those grounds." Rule 32.6(b). The record of the guilty plea proceeding, which is in the record before us and of which the trial court could take judicial notice, clearly refutes the allegations of the petition. Thus, there being no material issue of fact before the trial court and there being no purpose to be served by further proceedings, the summary disposition of the petition as to these allegations was proper.
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Id. at 589-590. If this Court has already established that facts in the record of the conviction being attacked must be countered by specific factual allegations in a Rule 32 petition to create a material issue of fact, how can it not 10
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be an abuse of discretion here to grant discovery on a claim that rests on no factual pleadings in the face of sworn testimony that vitiates the claim on which the discovery request was grounded? For these reasons, this Court should review the transcript of the October 13, 2004 motions hearing, review the trial court's.-stated reason for granting discovery as to this issue, and issue a writ of mandamus to the Montgomery County Circuit Court ordering that court to vacate its discovery order.
B. The Trial Court Abused Its Discretion By Allowing Jackson Access To The Criminal , Mental Health, And Correctional Records Of All State Witnesses. The trial court also granted Jackson's request for all documents relating to any State witness at his trial, including all criminal records, mental health records, correctional records, etc. Jackson was granted access to the following records: All documents relating to any State witness at Shonelle Andre Jackson's trial, including: 1) all juvenile detention, jail, prison, parole, probation, and pre-sentence investigation records; 2) all sentencing reports; 3) all arrest, conviction, and adult and juvenile criminal offense records; 4) all records of any law enforcement authority; including all documents relating to any plea negotiations between any State witness and the State; 5) all records of
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any detention or court authority; 6) all records of any prosecuting authority; 7) all psychiatric, psychological, and mental health records; 8) all documents relating to any lie detector test taken by any State witness; 9) all other records and reports(.) (Exhibit G at 7) This boilerplate discovery request was in no way related to the specific claims in his Rule 32
petition. Jackson stated that he was entitled to this material pursuant to Rule 16 of the Alabama Rules of Criminal Procedure. Rule 16, however, does not specifically apply to post-conviction discovery motions.6 Instead, the
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guidelines enunciated in Land and Mack provide the framework for granting post-conviction discovery motions.
In requesting these records, Jackson did not allege what they might reveal or how they related to any claims before the trial court. See Payne v. State, 791 So. 2d 383, 395-96 (Ala. Crim. App. 1999)(stating that, although the circuit court granted Payne "broad discovery from an extremely general motion," Payne did not "offer any good cause as to why the discovery was necessary or exactly what Payne believed the information he sought to discover would reveal[.]"). Jackson failed to offer any evidence that such
6 Furthermore, this information does not fall under that available under Rule 16's plain language.
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documents were relevant to his claims before the trial court.
Moreover, the trial court's order is contrary to laws governing the discovery of third-party records. This Court has held that "[A] defendant is not entitled to the general
disclosure of the criminal records of the state's
witnesses." McGowan v. State, 2003 WL 22928607, at *24

(Ala. Crim. App. 2003). Likewise, the trial court's order allowing access to the mental health records of State's witnesses is not only unsupported by any showing of "good cause" but violates well-defined doctor-patient privileges.
See Ex ante Western Mental Health Center, 2003 WL 23025579 (Ala. 2003).7 The trial court in this case ordered the discovery of privileged mental health records of State's witnesses without good cause and without informing those witnesses that their personal records were being sought. By granting Jackson's request, the trial court abused its discretion and allowed Jackson to conduct a prohibited "fishing expedition." See Ex parte Mack, 2003 WL 195008, at
*4 n.7. To rememdy this injury, this Court should issue a
7 This case is discussed in greater detail below.
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writ of mandamus to the Montgomery County Circuit Court ordering that court to vacate its discovery order.
C. The Trial Court Abused Its Discretion By Allowing Jackson Access To Juror Questionnaires And Other Documents Relating To The Jury And The Jury Selection Process In Montgomery County. Jackson was granted discovery of jury questionnaires and all documents relating to the State's use of peremptory challenges, the use of racial criteria in the jury selection process in Montgomery County, and any documents relating to any communication between the State and any petit jury member before, during, or after the trial. (Exhibit G at 7) Jackson alleged that such discovery was
necessary for proving his claims of juror misconduct and ineffective assistance of counsel for failing to adequately
raise Batson and J.E.B. objections. In granting this request, the trial court ignored the State's contention that the juror misconduct claims were procedurally barred and that the ineffective assistance of counsel claim was due to be dismissed because the underlying issue was without merit.
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The juror misconduct claims were procedurally barred. (Exhibit C at 2-3) In Woods v. State, 2004 WL 1909291 (Ala. Crim. App. Aug. 27, 2004), this Court reiterated the
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principle that juror misconduct claims are subject to the
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procedural bars of Rule 32.2 and, once pleaded by the State, it is the petitioner's burden to disprove their existence. In Woods, this Court determined the juror misconduct claims were procedurally barred because the petitioner failed to provide any facts in his amended petition that, if^true, would disprove the existence of the
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procedural bars. Jackson failed to include any facts in his amended petition that, if true, would rebut the presumption that the claims were procedurally barred. Because the State pleaded procedural bars in relation to the juror misconduct claims, the trial court abused its discretion by granting the requested discovery. The trial court's order violates this Court's previous holding that discovery is inappropriate as to procedurally barred claims in a Rule 32 petition. See Hooks, 822 So. 2d 476 (Ala. Crim. App. 2000).
The State also objected to Jackson's discovery requests because the ineffective trial counsel claim is due to be dismissed pursuant to Ala. R. Crim. P. 32.7(d). (Exhibit E at 5) In Woods v. State, this Court reaffirmed its earlier
holdings that "when this court and/or the Alabama Supreme Court has specifically addressed and rejected a substantive
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claim on direct appeal, whether reviewing for plain or preserved error, a petitioner in a Rule 32 proceeding who raises an ineffective-assistance claim based on that same substantive claim cannot establish prejudice under Strickland." 2004 WL 1909291, at *13. On direct appeal,
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this Court held that no Batson or J.E.B. violations occurred. Jackson-v. State, 836 So. 2d 915, 946-948 (Ala. Crim. App. 1999). In his amended petition, Jackson did not allege any new facts that were not presented to this Court on direct appeal.
Jackson has not and cannot show "good cause" and the trial court abused its discretion by granting Jackson discovery on this claim.
D. The Trial Court Abused Its Discretion By Allowing Jackson Access To The Bullet And Shell Casing Introduced Into Evidence At Trial.
The trial also granted Jackson's request for access to the bullet and shell casing introduced at his trial. Jackson argued in his amended Rule 32 petition that counsel was ineffective for failing to procure a firearm expert who could have testified that it was possible that the
"projectile that caused Mr. Moore's death could have been fired by either the 9 mm gun or'the .357 carried by the co-
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defendants." (Exhibit A at 11-12) The record, however, demonstrates that trial counsel did present this testimony to the jury during the cross-examination of the State's firearm expert, Joe Saloom. On cross-examination, Mr. Saloom testified that the bullet recovered from Mr. Moore's
body could have been fired from either a 9 mm pistol or .357 pistol. (R.-506, 508) Accordingly, the State properly moved to dismiss this claim because no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. (Exhibit E at 4)
Counsel in this case cannot be found ineffective for failing to introduce evidence or testimony where the record clearly demonstrates that they introduced that evidence or testimony. Because Jackson's claim of ineffective
assistance of counsel was shown to be rebutted by the record, he has not and cannot show "good cause" for access to the bullet and shell casing. Therefore, the trial court abused its discretion in granting discovery on this claim. E. The Trial Court Abused Its Discretion By Allowing Jackson Access To Any And All Visitor Sign In Sheets And/Or Logs Of Visitors To Himself And His CoDefendants.
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The trial court also granted Jackson's request for discovery of all jail visitor sign in sheets and/or logs of visitors pertaining to Shonelle Andre Jackson, Antonio Dion Barnes, Eric Orlando Williams, and Christopher Rudolph.
Jackson is not entitled to discovery of sign in sheets and logs that pertain to him. Jackson knows who has visited him while he has been' incarcerated. It is unnecessary and unduly burdensome to the State and correctional
institutions to provide Jackson with a list of his own visitors. Jackson is also not entitled to the sign in sheets or visitor logs pertaining to his co-defendants. Jackson argues that discovery of this information is necessary to corroborate his claim that the State entered into a deal with his co-defendants. As discussed earlier in great detail, however, the Brady claim upon which Jackson relies to demonstrate "good cause" for his discovery request is procedurally barred and insufficiently specific. Thus, the
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trial court's order violates this Court's previous holding that discovery is inappropriate as to procedurally barred claims in a Rule 32 petition. See Hooks, 822 So. 2d 476 (Ala. Crim. App. 2000).
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F. The Trial Court Abused Its Discretion By Allowing Jackson Access To Any And All Criminal And Correctional Records Of His Father , Louis Wendell Taylor. Jackson was granted discovery of all records pertaining to Louis Wendell Taylor generated or maintained by the Department of Corrections, Montgomery County Sheriff's Department, Montgomery Police Department, Alabama Board of
Pardons and Paroles, Montgomery City Jail, and the Montgomery County Detention Facility. Additionally, Jackson was granted discovery of all records generated or maintained by any medical provider or contractor for
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medical and/or psychiatric services to the Alabama Department of Corrections. Jackson argued that such discovery is necessary to establish that his father, Louis Taylor, was either chronically imprisoned, using drugs and alcohol, or was simply absent when he was young. Jackson's discovery request is unduly burdensome and overly broad. Moreover, Jackson has other available means with which to prove his allegations concerning his father.
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8 In addition, for the reasons shown below, granting discovery of his father's records violates every concept of fairness and due process imaginable. Jackson's father is a nonparty to this case. His privacy rights must stand until he is given notice that his records are being sought and an opportunity to respond.
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In Ex parte Mack, this Court defined five criteria for determining whether a petitioner has established "good cause" for post-conviction discovery: "`the issues presented in the petition, the scope of the requested
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discovery, the length of time between the conviction and post-conviction proceeding, the burden of discovery on the State and on any witnesses; and the availability through other sources."' 2003 WL 195008, at *3 (Ala. Crim. App. Apr. 25, 2003)(quoting Johnson, 2002 WL 592153, at *14(citing People ex rel Daley, 526 N.E.2d at 135. The trial court failed to consider these criteria in determining whether Jackson was entitled to the requested discovery. In the absence of this determination, Jackson has not and cannot establish "good cause". The discovery of Taylor's criminal and correctional records is unnecessary to demonstrate that he was either on drugs and alcohol or in prison when Jackson was growing up. Such information could be obtained easily through the
testimony of Jackson, other family members, or even through his father, Louis Taylor. In fact, Louis Taylor testified
at the penalty phase of Jackson's trial that he was
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frequently absent from the home and that he was incarcerated in 1994 and 1995. (R. 572, 574)
For the above state agencies to be forced to go through twenty or more years of records for such information is unduly burdensome and time consuming. This information is available through other means, as demonstrated at his capital murder trial. Jackson's own father and other family members can certainly testify to these matters contained in
the requested records. Jackson simply does not need these records to demonstrate that his father was arrested or in jail while he was growing up. The trial court abused its discretion by granting Jackson discovery of Taylor's
criminal and institutional records.
II. This Court Is Due To Adopt Procedural Safeguards For The Rule 32 Discovery Process That Will Protect Nonparties To The Litigation.
Although Land established the existence of a trial court's discretion to grant discovery in Rule 32 cases, it
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did so in relation to discovery of items that were in the possession of the State in its role as a prosecutorial agency. Since Land, however, Petitioners have increasingly sought discovery from non-parties and from State agencies
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that cannot be said to be a part of the State in its role as a prosecutorial agency. The basis for the discovery process recognized in Land rests upon the "inherent authority of the trial court." Land, 775 So. 2d at 852. That authority to order discovery,
to be inherent, must relate to a trial court's authority over the person or entity from whom discovery is sought. Where the discovery is sought from a party to the case, there is no question but that the trial court has inherent
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authority and jurisdiction over the parties to the matter in litigation. A different situation arises, however, when the discovery is requested from parties who have not appeared before the court, have not participated in the matter being litigated, and have not been formally subjected to the court's jurisdiction. Accordingly, blanket requests for discovery from these parties must fail where the existence of such documents is not known to the prosecutor, the evidence does not relate to statements made by the
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defendant, where reports of examinations or tests were not prepared in relation to the underlying case forming the
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basis for the postconviction appeal, and where the agencies involved do not fall under the authority of the prosecutor. In the Brady context, this Court has held that
knowledge of State agencies not involved in the prosecution effort is not imputed to the State. See, e.g., Hill v. State, 651 So. 2d 1128, 1132 (Ala. Crim. App. 1994). Other jurisdictions have reached similar conclusions when
considering what constitutes "the State" in relation to Brady claims. See, e.g., Head v. Stripling, 590 S.E.2d 122,
126(Ga. 2003)("Our definition of the prosecution team responsible for Brady disclosures cannot be a monolithic
view of government that would impute to the prosecutor the knowledge of persons in state agencies not involved in the prosecution... Such a wide definition would be unworkable."); Stano v. Butterworth, 51 F.3d 942, 974 (11th Cir. 1995) ("Brady, then, applies only to information possessed by the prosecutor or anyone over whom he has authority."); U.S. v. Battle, 264 F.Supp.2d 1088, 1202 (N.D. Ga. 2003)(Knowledge of Bureau of Prisons staff not imputed to Department of Justice prosecutors, even though they all worked under the
umbrella of the Department of Justice. Brady only imputes knowledge from government offices or officials over whom
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the "prosecutor... has authority."). It is clear, then, that the State cannot be charged with `possession' of evidence from non-prosecutorial agencies for purposes of Rule 32 discovery, when the Office of Attorney General (or the local district attorney in a non-capital case) has no
authority over those agencies and where those agencies have their own general,'counsel. Because the State (represented by the Office of Attorney General) has no authority over the operation of these agencies, the trial court cannot
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extend its authority to reach these agencies who are not a party to the matter before the Court. Using Brady as a guide, and recognizing that the Capital Litigation Division of the Office of the Alabama Attorney General (or the local district attorney in a noncapital case) has no authority over the activities and functions of independent state agencies such as the Department of Mental Health and Mental Retardation, the Department of Human Resources, and the Board of Pardons and Paroles, it makes no sense to treat the respondent in a
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Rule 32 petition as "the State" for purposes of serving massive, boilerplate discovery requests in collateral proceedings. The State, as represented by the prosecutorial
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arm of government, cannot readily determine whether evidence regarding a petitioner exists at these agencies, what these agencies' rules and regulations require, or how
each agency's general counsel treats requests for production in various lawsuits around the State. The Department of Human Resources, for example, employs attorneys around the State to deal with such requests for
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information and who are familiar with the rules and regulations imposed by state law and federal law governing this information which deals with confidential medical information, juvenile information, or information concerning alleged instances of abuse or neglect. Ala. Code 38-2-4 (1975). Prosecutors are not equipped to respond to such requests, and they certainly are not employed in a position that allows them to learn, in detail, how to handle such information. Because Rule 32's discovery process - the "inherent authority of the trial court" - has no formal rules to
guide the parties, these nonparty agencies are subjected to the legal fiction that they fall under the supervision of a local trial court of general jurisdiction without advanced notice of the discovery sought and without any procedure
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that would allow the Court to bring those parties within
its jurisdiction. The present petition offers this Court an opportunity to address an important legal issue: In the light of the growing demands for discovery made in Rule 32 proceedings against various agencies and organizations that are not
under the authori-ly of the prosecutorial arm of government,9 how does a trial court guarantee an adversarial testing of proposed discovery? If the Office of Attorney General or a district attorney's office is ill-suited to speak on behalf of an independent state agency or private organization
(represented by their general counsel), how is the "good cause " requirement of Land best preserved?
For example, in this case Jackson requested, and was granted, discovery of mental health records concerning himself, his mother, and every State witness who testified at his trial.10 The records pertaining to Jackson's mother and the State' s witnesses are governed by the
9 For example, a prosecutor may not simply demand that DHR turn over documents for use at a criminal trial. 10 This discovery request was granted despite the absence of any pleaded facts suggesting that any State witness has any mental health records or has received mental health treatment. Petitioner ' s fishing expedition , however, it not the biggest problem relating to this issue, considering the fact that this order was issued without any of the State ' s witnesses ever being notified that their records were being sought and without their having a chance to appear and contest the issue before the trial court.
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psychotherapist-patient privilege codified in 34-26-2 of the Code of Alabama of 1975, which required the Supreme
Court of Alabama to grant a petition for writ of mandamus vacating an order for production of a plaintiff's mental health records in Ex parte Western Mental Health Center, No. 1011990, 2003 WL 23025579 (Ala. Dec. 30, 2003). Unlike that case, there-is no party to the litigation in this case that can effectively protect this privilege on behalf of
the nonparties because neither this Court nor the Supreme Court of Alabama has addressed a realistic way of ensuring that discovery requests in Rule 32 petitions are subjected to adversarial testing." The facts in Jackson illustrate the shortcomings of current Rule 32 discovery practice and
require this Court to bring some adversarial testing and safeguards into the process; at a minimum to ensure the "good cause" standard is being met and that nonparties receive notice that items held by (or relating to) them are being sought prior to the entry of a court order.
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11 There is nothing in the record below indicating that Jackson's mother or the State' s witnesses have ever waived their right to this privilege, nor that they are aware that these records (if any exist) are being sought for use in this proceeding. The trial court, below, did not even inquire into this matter during the motions hearing, as the Court granted all discovery requests immediately upon hearing arguments concerning the petitioner's Brady claim as it related to discovery.
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It is time for this Court to apply Rules 37 and 45 of the Alabama Rules of Civil Procedure - in addiion to the preliminary "good cause" inquiry -- to discovery in Rule 32 cases. Because the Alabama Rules of Civil Procedure do not
apply to Rule 32 cases, according to Rule 32.4, this Court must craft these protections by reviewing the process
created in Land, and clarify the legal issues that restrict the discretion of trial courts to grant discovery in Rule
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32 in a published opinion. If this Court does not formally adopt Rules 37 and 45 of the Alabama Rules of Civil Procedure, it should, at a minimum, adopt the safeguards
contained therein by requiring notice to all parties of the discovery sought, advanced notice to the nonparties who will be subjected to the requested discovery order (with an opportunity to appear and be heard through a reasonable waiting period), as well as the sanctions provision of Rule 45(c) of the Alabama Rules of Civil Procedure, which
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requires the party seeking discovery to attest to taking "reasonable steps" to avoid imposing undue burden or expense on those subjected to the ever increasing discovery
requests generated in these collateral proceedings.'2 This
12 In Land, the Court commented in dicta that requiring State agencies to
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Court should also clarify its earlier ruling in Ex parte State (Hooks), 822 So. 2d 476, that held the Cburt must resolve the existence of procedural bars before ordering discovery. All of these safeguards could be implemented by
adopting a system such as that found in Rule 6 of the Rules Governing Section 2254 Cases in the U.S. District Courts. This Court can take judicial notice of prior Rule 32
cases it has considered,
as well as those currently before commonly
the Court. A review of the discovery requests
being made by petitioners in these Rule 32 cases clearly indicates a dire need for guidance about what is and is not
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permissible under the guise of Rule 32 discovery. In Jackson, where an overly burdensome and broad discovery order was signed by the Court - completely unrelated to "good cause" shown as evidenced by the trial court's own admission on the record --- this Court has a duty to act and correct the mistakes present in this case, and provide guidance on how to handle requests for discovery from
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determine whether records exist "would not unduly burden the State." Land, 775 So. 2d 855. The State invites this Court to seek amici curiae briefs from the various agencies most commonly affected by the use of boilerplate discovery in Rule 32 and seek their opinion as to whether the Court's speculation about the effects of subpoena compliance and record review was accurate. In a time of budget shortfalls and layoffs, it is unduly burdensome to perform a record search that could be avoided if the party making the request was subject to sanctions if it were determined that such a request was merely part of a "fishing expedition."
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entities that are, in reality, nonparties to the collateral proceeding.

CONCLUSION The circuit court abused its discretion, explicitly violating Ex parte Land, and Ex parte Mack. By doing so, the circuit court ignored the privacy rights and interests of third parties,.-and also needlessly increased the costs of this postconviction proceeding to both the judicial and executive branches of government. WHEREFORE, the State respectfully requests that this Court issue a writ of mandamus to the Montgomery County Circuit Court directing that Court to vacate its order granting Jackson discovery. Respectfully submitted,
Troy King Attorney General

James R. Routs Assistant Attorney General
y McIntire
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October 20, 2004
Assistant Attorney General Counsel of Record*
State of Alabama
Office of the Attorney General 11 South Union Street Montgomery, AL 36130-0152 (334) 353-4014 *
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I hereby certify that on this 6ath day of October, 2004, I served a copy of the foregoing on counsel for Petitioner, by placing said copy in the United States Mail, first class, postage prepaid and addressed as follows:
Bryan A. Stevenson Angela L. Setzer Equal Justice Initiative of Alabama 122 Commerce Street
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Montgomery, AL 36104
P"'7 lnu'z
W.
remy . McIntire
Assistant Attorney General Counsel of Record *
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E
ADDRESS OF COUNSEL: Office of the Attorney General Capital Litigation Division Alabama State House 11 South Union Street Montgomery, AL 36130 (334) 353-4014 *
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31
IN THE ALABAMA COURT Off'' CRIMINAL APPEALS NO.

EX PARTE STATE OF ALABAMA. IN RE:
SHONELLE ANDRE JACKSON, PETITIONER, vs.

STATE OF ALABAMA, RESPONDENT.
EXHIBITS FOR THE

PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE TRACY S . MCCOOEY, CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT
Volume I of II
And
James R. Routs' ASSITANT ATTORNEY GENERAL Jeremy McIntire ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL CAPITAL LITIGATION DIVISION
ALABAMA STATE HOUSE 11 SOUTH UNION STREET MONTGOMERY, ALABAMA 36130
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INDEX TO EXHIBITS EXHIBIT A EXHIBIT B
Jackson's Amended Rule 32 Petition State's Answer to Jackson's Amended Rule 32 Petition State' s Motion to Dismiss Procedurally Barred Claims
State's Motion to Dismiss Insufficiently Plead Claims State's Motion to Dismiss Claims Pursuant to Rule 32.7(d) Jackson's Motion for Discovery of Institutional Records, Files, and Information Necessary to a Fair Rule 32 Evidentiary Hearing Jackson's Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing State's Response to Jackson's Motion for Discovery of Institutional Records, Files, and Information Necessary to a Fair Rule 32 Evidentiary Hearing State's Response to Jackson's Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing Jackson's Response to the State's Opposition to his Discovery Requests Transcript of the October 13, 2004 Hearing Held On the Parties Motions
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EXHIBIT C
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EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
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EXHIBIT H
EXHIBIT I
EXHIBIT J
EXHIBIT K
EXHIBIT L
Court's Order Of October 13, 2004
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IN THE FIFTEENTH JUDICIAL CIRCUIT COURT, MONTGOMERY COUNTY, ALABAMA
SHONELLE ANDRE JACKSON,

Petitioner, v. STATE OF ALABAMA,
Respondent.
AMENDED PETITION FOR RELIEF FROM JUDGMENT PURSUANT TO RULE 32 OF THE ALABAMA RULES OF CRIMINAL PROCEDURE
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Petitioner, SHONELLE ANDRE JACKSON, now incarcerated on death row at Holman Prison, in Atmore, Alabama, petitions this Court for relief from his unconstitutionally obtained conviction and sentence of death. In support of this petition, Mr. Jackson states the following: PROCEDURAL HISTORY 1. In September, 1997, a Montgomery County grand jury indicted Shonelle
Jackson, who was 18 years old at the time of the crime, on two counts of capital murder and one count of theft or alternatively receiving stolen property pursuant to sections 13A-540(a)(2), (17), 13A-8-3, and 13A-8-17 of the Alabama Code of 1975 in the death of Lefrick Moore. (C.7-10.)
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2. Due to Mr. Jackson's inability to afford a lawyer, the Honorable William Garden, Montgomery County Circuit Judge, appointed attorneys Ben Bruner and Robert Russell. Jr. to represent Mr. Jackson at his capital trial. 3. The trial court subsequently dismissed the second count of the indictment:
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intentional murder while the victim is in a vehicle. (R. 36.) On February 27, 1998, the jury found Mr. Jackson guilty of one count of capital murder ( intentional murder during a robbery), and one count of theft of property in the first degree. (R. 526.) That same day, there was a short penalty hearing. After only twenty-five minutes of deliberation, the jury returned with a 12-0 verdict for life without the possibility of parole. (R. 599.) On July 2, 1998, Judge Gordon rejected the jury' s unanimous verdict and sentenced Mr. Jackson to death. (R. 602.) 4. The Alabama Court of Criminal Appeals affirmed Mr. Jackson's conviction and sentence of death on May 28, 1999. Jackson v. State, 836 So. 2d 915 (Ala. Crim. App. 1999). Mr. Jackson's rehearing application was denied on July 9, 1999. 5. The Alabama Supreme Court granted certiorari review and on May 18, 2001, remanded the case to the Alabama Court of Criminal Appeals for that court to remand the case for the trial court to conduct a hearing outside the presence of the jury to determine the admissibility of Mr. Jackson's statement . Ex parte Jackson, 836 So. 2d 973 (Ala. 2001). 6. A hearing was conducted on October 24, 2001, and the trial court found that Mr. Jackson's statement was admissible. On February 15, 2002, the Alabama Supreme
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Court issued its opinion affirming Mr. Jackson ' s capital conviction and death sentence. Mr. Jackson filed an application for rehearing , which was denied by the Alabama Supreme Court in a substituted opinion on May 10, 2002 . Ex parte Jackson, 836 So . 2d 979 (Ala. 2002). 7. Mr. Jackson filed a timely petition for writ of certiorari to the United States Supreme Court on August 8, 2002 . That petition was denied on November 18, 2002.
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Jackson v. Alabama, 123 S. Ct. 582 (2002).

8. This timely petition pursuant to Rule 32 of the Alabama Rules of Criminal Procedure followed. GROUNDS SUPPORTING THE PETITION FOR RELIEF' 1. MR. JACKSON WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING THE GUILT AND PENALTY PHASES OF HIS TRIAL IN VIOLATION OF THE FOURTH, FIFTH , SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 9. Mr. Jackson ' s trial counsel, Ben Bruner and Robert Russell , Jr., did not render reasonably effective legal representation during Mr. Jackson ' s capital murder trial. See Wiggins v. Smith , 123 S. Ct. 2527 (2003); Williams v . Tay lor, 529 U.S. 362 (2000);
Strickland v. Washington , 466 U.S . 668 (1984 ). This Court should accordingly reverse Mr.
'Many of the issues included in Mr. Jackson ' s petition as substantive errors and as claims of ineffective assistance of counsel rest in part on the same facts . In order to avoid repetition , Petitioner has developed the facts and law only once, in the sections later in the petition on the substantive claims . Because the substantive claims demonstrate why Mr. Jackson would have won on the claim, those sections are also important to the Court' s finding of prejudice on the ineffectiveness issues. Petitioner will point the Court to the discussion below for each relevant claim , and incorporates by reference the substantive issues into the ineffectiveness claims.
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Jackson's conviction and sentence of death.

10. Mr. Jackson's counsel was completely ineffective at all stages of the criminal proceedings against him. The attorneys representing Mr. Jackson at trial abdicated their constitutionally mandated responsibility to subject the prosecution 's case to a meaningful adversarial test. Performance ofMr. Jackson's counsel fell far below "an objective standard of reasonableness" and failed "to make the adversarial testing process work." Strickland, 466 U.S. at 690. None of the numerous errors made by defense counsel can reasonably be construed as part of a "sound trial strategy." - at 691 1d. 11. The errors made by Mr. Jackson's counsel were so serious as to "undermine
confidence in the outcome," Strickland, 466 U.S. at 694, and Mr. Jackson now seeks relief from his unconstitutionally obtained conviction and sentence of death. But for defense counsel's ineffectiveness, there is a reasonable probability that Mr. Jackson would not have been convicted of capital murder and sentenced to death. See Strickland, 466 U.S. at 694;
Williams, 529 U.S. at 420 (rejecting lower court's holding that "mere" difference in outcome was not enough to find prejudice under Strickland). This failure of defense counsel denied Mr. Jackson his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, the Alabama Constitution, and Alabama State law. 12. Counsel's ineffectiveness was, in part, the product of the grossly insufficient
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funds available for defense counsel in capital cases. At the time of Mr. Jackson's trial, Alabama law provided that court-appointed attorneys in capital cases could not be
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compensated more than $ 1,000 for out- of-court work for each phase of a capital trial, based on a $20 hourly rate.' See Ala. Code 15-12-21 (1975) (amended 1999). 14. Accordingly, Mr. Jackson' s counsel received no compensation whatsoever for out-of-court work in excess of fifty hours, and were compensated at rates far below market level even for the initial fifty hours . This is simply inadequate given the time required to adequately represent a capital defendant.' 15. This inadequate and statutorily limited compensation violated the separation ofpowers doctrine, constituted a taking without just compensation, deprived Mr. Jackson of effective assistance of counsel , and violated the due process and equal protection clauses. See Bailey v. State, 424 S.E.2d 503 (S.C. 1992) (stating that capital litigation complexity required court-appointed attorneys to receive reasonable compensation from state and county funds); Makemson v. Martin County, 491 So. 2d 1109, 1115 (Fla. 1986) (holding that $3,500 limit on compensation in capital trial violated separation of powers and denied capital defendants effective assistance of counsel); DeLisio v. Alaska Superior Court, 740 P.2d 437, 443 (Alaska, 1987) (finding that takings clause precludes attorney payment at less than that
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2 The Alabama legislature eventually recognized the inadequacies ofthis funding scheme and in 1999, amended the statute to significantly raise the level of funding for court-appointed lawyers in capital cases. See Ala. Code 15-12-21 (1975) (amended 1999). Unfortunately, this change came too late to provide Mr. Jackson with adequate funds for his defense.
'The limits that this compensation cap put on the defense counsel was evident at trial: "we have limited resources in this matter. We tried to use them as best we could.... if I did something wrong, I apologize to the Court. But there are a zillion people in this. I can only pay Ron William a certain amount to go out and see what he can do." (R. 24.) 5
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"received by the average competent attorney operating on the open market"). "It is well
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established that the Sixth Amendment guarantees to criminal defendants not only the right
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of assistance to counsel, but requires that assistance to be legally effective." Waltho v. State, 506 So. 2d 273, 275 (Miss. 1987); Strickland v. Washington, 466 U.S. 668 (1984). 16. The failure to provide adequate funding to Mr. Jackson's court-appointed counsel curtailed this most fundamental right. The limitation on funding was particularly debilitating in Mr. Jackson' s case, given the ballistics evidence and other evidence presented
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and relied upon by the State in obtaining his capital conviction and death sentence. A. Trial Counsel Was Ineffective During the Guilt Phase of Mr. Jackson's Trial, and Thereby Deprived Petitioner of his Sixth and Fourteenth Amendment Rights. 17. Mr. Jackson was denied effective legal representation during the guilt phase of his capital trial. This failure of defense counsel denied Mr. Jackson his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, the Alabama Constitution and Alabama law. See Wiggins v. Smith, 123 S. Ct. 2527 (2003); Williams v. Taylor, 529 U.S. 362 (2000); Strickland v. Washin on, 466 U.S. 668 (1984). 1. Trial Counsel Failed to Adequately Investi ate the
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State's Capital Murder-Charge against Mr. Jackson

18. Counsel failed to conduct an independent investigation, despite the obvious weaknesses in the prosecution's case and the ample, and readily available, sources of exculpatory evidence. In order to effectively prepare for a capital trial, counsel must investigate every possible avenue of defense, investigate and challenge all assertions by the 6
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State, and subject the State' s case to rigorous examination and testing. See Strickland v. Washington, 466 U.S. 688 (1984); see. e .g., Code v. Montgomery, 799 F.2d 1481,1483 (11th Cir. 1986) (finding ineffective assistance of counsel where defense failed to interview all potential alibi witnesses); Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986) (finding ineffective assistance of counsel where the defense does "not investigate the prosecution's case, [and does] not investigate ... defense witnesses"); Neal v. Cabana, 764 F.2d 1173, 1177 (5th Cir. 1985) ("A substantial body of... case law insists... that effective counsel conduct areeasonable amount of pretrial investigation."); Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir. 1982). 19. In this instance, counsel failed to make an independent investigation of the case, and was thus entirely reliant on the State's version of the events. Counsel only met with Mr. Jackson on a few occasions prior to trial, and did not adequately establish a relationship of trust that is essential to adequate representation in a capital case, and is essential to a full development of a defense theory. Similarly, trial counsel failed to sufficiently meet with Mr. Jackson's family prior to trial, despite the fact that Mr. Jackson's mothers and sisters, as well as other family members and friends, possessed information that
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would have been helpful to his defense. 20. Trial counsel did not meet or attempt to interview the State's witnesses, including the officers and investigators charged with investigating Mr. Moore's death, did not attempt to meet or locate individuals whose testimony would conflict with the testimony
of the co-defendants in this case, or otherwise undermine the State's presentation of guilt. These witnesses include but are not limited to: Victoria Moss, Leroy Geary, A.C. Porterfield, Joe Saloom, Andrew Signore, Latiki Denis Williams and any other witnesses related to Mr. Moore's death. 21. Critically, trial counsel failed to investigate and interview the "only actual eyewitness to the shooting," Gerard Burdette . (R. 19.) Mr. Burdette gave a statement on the night of the crime which identified individuals other than Mr. Jackson as the responsible parties. His testimony was therefore critical; as defense counsel noted at trial: "[i]f he
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testifies to what was in his statement, he could very well exonerate our client." (R. 20.) Despite the critical importance of this witness, trial counsel did not find or interview him, and thus was unable to present his testimony. In fact, trial counsel did not even know that they couldn't find him "until the State told Mr. Bruner that they had issued a subpoena on him and couldn't find him." (R. 23). As the court acknowledged at trial, "If y'all thought you needed him - doesn't sound to me like y'all tried to do anything. Coincidentally found out he was being looked for." (R. 23.) 22. In light of this information, trial counsel filed a motion for a continuance three days before trial. (C. 83.) This motion was denied by the trial court. See infra issue VII (incorporated by reference). Mr. Burdette never showed up to trial, (R. 38), and when defense counsel sought to introduce a tape recording of his statement at trial, counsel learned that the "tape was never impounded." (R. 38.) By virtue of their failure to find and interview
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this witness, counsel was thus forced to read Mr. Burdette's statement into the record at trial.
(R. 33.) 23. Trial counsel's failure to conduct an independent investigation of Mr. Moore's death was constitutionally required. Counsel's failure in this regard was particularly
prejudicial in this case, given the circumstantial nature of the evidence. The State relied primarily on the testimony of the three co-defendants in this case to attempt to prove it's theory of the case that Mr. Jackson and three other young men were driving around Montgomery in a stolen car on a Friday night. While driving they passed the victim's car which one of the co-defendants knew had a good stereo system in it. According to the State,
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Mr. Jackson decided that he wanted to steal the stereo system, and a few minutes later, swerved his car in front of the victim's so that the two cars collided. Shots were fired and the State's theory is that Mr. Jackson shot and killed the victim. 24. Had counsel conducted a constitutionally adequate investigation of the State's capital charges against Mr. Jackson, counsel would have been able to present a viable defense theory as to why Mr. Jackson was not guilty of capital murder because the motive for the killing was based on the fact that the victim was involved with gang members and was a drug dealer who was known to sell fake drugs, and thus the killing did not take place during a robbery. 25. Counsel should have investigated and presented evidence in support of this theory in response to the State's motion in limine to prevent Mr. Jackson from presenting
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evidence that the killing occurred during a drug deal. This evidence would have included testimony from witnesses such as Gerard Burdette and the victim's wife, Lacreama Moore. These witnesses could have established not only that the victim was involved in gang activity, but that this activity involved selling drugs.' 26. Additionally, had trial counsel investigated and interviewed family members and friends such as Marilyn Jackson, LaQuanda Jackson, Wanda Jackson, Keisha Young, Monica Taylor, Julia Taylor, LaTanya Austin and Greg McGee, counsel.would have uncovered and presented evidence that Shonelle began selling drugs at a very young age as
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a "drug gofer" for older men in the neighborhood who were gang members, and that Shonelle himself was a gang member and was involved in gang activity. Such interviews and investigation would have also revealed that Mr. Jackson and a co-defendant had previously been convicted of drug offenses, (R.394, C. 177), and that Mr. Jackson used drugs on the day of the crime. (C.105, 112, 121, 122.). 27. Had counsel marshaled the evidence of the victim's drug use and gang activity, as well as Mr. Jackson's history of selling drugs and gang involvement, and alerted the trial court to this evidence, the trial court would have denied the State's motion in limine, and allowed counsel to present evidence that the motive for this crime was not robbery, but
instead was a result of a drug deal gone bad. Counsel could then have presented this theory of defense to the jury both in evidence and argument, and the jury would have not have
'Indeed, counsel was on notice about this as the prosecutor acknowledged that the victim was a drug dealer. and that his wife could establish his reputation as such. (R. 31.)
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convicted Mr. Jackson of capital murder.
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2. Trial Counsel Failed to Procure Necessa Exert Assistance 28. Trial counsel failed to procure the necessary expert assistance needed to effectively challenge the State' s case . A criminal defendant's right to the benefit of expert assistance is constitutionally recognized and protected . See Ake v. Oklahoma, 470 U.S. 68 (1985); Griffin v. Illinois, 351 U.S. 12 (1956); Gayle v. State, 591 So. 2d 153 (Ala. Crim. App. 1991). 29. Counsel was ineffective for failing to procure the assistance of (1) a firearm and projectile expert ; ( 2) an expert on identification witnesses ; ( 3) a mental health expert and/or social worker ; and (4) an expert on drug and alcohol abuse. 30. A firearm and projectile expert would have assisted trial counsel in undermining the testimony of the State ' s experts that the projectile recovered from Mr.
Moore ' s body was necessarily fired by a .380 gun . (See, e . , R. 502 .)
Despite the
conflicting evidence offered by the State , defense counsel , clearly not an expert in the arcane realm of firearm and projectile examination , endeavored to cross-examine the State ' s expert without the assistance of a defense expert and failed to present the testimony of its own
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expertwitness. An expert would have established that the projectile that caused Mr. Moore's death could have been fired by either the 9 mm gun or the .357 gun carried by the codefendants. (R. 305, 444.) Given that there was no eyewitness testimony as to who was responsible for the shot that killed Mr. Moore, and the murder weapon was never found, this
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expert testimony then would have allowed counsel to argue that one of the co-defendants was responsible for Mr. Moore's death and that Mr. Jackson was not the shooter in this case. 31. Such testimony was critical because, as the trial court noted in his sentencing order, there was evidence that the person with the .357, or Antonio Barnes, was responsible for the death of Lefrick Moore. (C. 184.) Mr. Jackson was constitutionally entitled to an expert of firearms and -projectile examination, but trial counsel made no effort to procure such assistance.' 32. Trial counsel also failed to obtain the assistance of an eyewitness expert. At Mr. Jackson's trial, the State presented the testimony of Leroy Geary to establish that it was the person in the driver's side of the silver car - or in the State's version of events, Mr. Jackson - whose door was open, and who was thus responsible for shooting Mr. Moore. (R. 199.) The State then relied on Mr. Geary's testimony in its closing argument in asking the jury to convict Mr. Jackson of capital murder. (R. 63.) 33. However, an expert on eyewitness identification would have assisted trial counsel in establishing that Mr. Geary's testimony was unreliable, and thus showing that Mr. Jackson was not responsible for Mr. Moore's death. This expert would have explained to the jury how various factors can alter a witness' perception of the event and make that witness'
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account of the event unreliable. The expert would have testified that in this case, various
'Defense counsel did move for additional funds for the "services of a trained scuba diver" to recover the alleged "weapon possessed by the Defendant in this cause." (C. 98.) However, defense counsel never procured the assistance of an expert to assist in this matter. 12
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factors about the event, such as the short amount of time that Mr. Geary had to view the event, the fact that the event involved violence, and the circumstances surrounding his alleged identification, such as the fact that it occurred at 11:00 pm, that the witness was viewing the incident through a 7 foot chain link fence and across two lanes of traffic (R.
202), and that the street light closest to the event had gone out just prior to this incident (R. 206), in addition to any factors about the witness, such as physical limitations or amount of stress on the witness, that affected his ability to perceive the event, combined to make the witness' identification unreliable. 34. Because jurors have a tendency to overestimate the accuracy of eyewitness
identification, an expert could have explained how negative factors impact the accuracy of the identification, and this would have then aided the jury in assessing the accuracy, and therefore the credibility, of Mr. Geary's testimony when making their decision. 35. Trial counsel failed to obtain the assistance of an investigator or social worker
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to -uncover exculpatory evidence, examine the State's evidence, interview the State's witnesses and potential defense witnesses, and otherwise assist in the development of a viable defense. As a result, trial counsel lacked the necessary information to make important decisions about the defense strategy. This lack of investigation was unreasonable and prejudiced Mr. Jackson. An investigator and social worker would also have assisted trial
counsel in challenging the admissibility of Mr. Jackson's statements both in front of a judge and in front of a jury. See paragraphs 56-57.
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3 6. Mr. Jackson's attorneys were also ineffective for failing to obtain a mental
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health evaluation of Mr. Jackson, and to also obtain an expert to evaluate Mr. Jackson's ability to voluntarily waive his rights and give a statement to the police. A mental health expert could not only assess those aspects of Mr. Jackson's functioning that make him especially vulnerable to influence by the police, see paragraphs 56-57, but also explain to the jury how the use of certain interrogation techniques by the police are particularly effective with people of similar characteristics. Additionally, a mental health expert would have assisted the court and the jury in evaluating Mr. Jackson's level of understanding by reporting norms of comprehension of rights of persons of similar age, socioeconomic status and court experience. This testimony would have been critical to both the judge and the jury's assessment of the voluntariness of Mr. Jackson's statement in determining how much weight to give to this statement.
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37. In addition, Mr. Jackson's long history of mental, emotional and behavioral problems, including evidence that he was on drugs on the day of the crime, (C. 105, 112, 121, 122), were more than adequate to serve notice to any reasonably competent counsel that mental health defects likely played a role in the defense. Counsel's failure to request such an evaluation was clearly ineffective.
38. But for counsel's failure to procure expert assistance, Mr. Jackson would not have been convicted of capital murder.
3. Trial Counsel Failed to Effectively Challenge the State's Investigation and Presentation of the Case 14
39. Counsel failed to effectively challenge the State's investigation and presentation of the case. Counsel's ineffectiveness began prior to trial, when counsel failed to file the Youthful Offender Application ("YOA") in a timely manner. Indeed, it was not
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filed until the morning of trial, primarily because counsel was "mistaken as to his age." (R. 33.) Given that Mr. Jackson was just over eighteen at the time of the crime, trial counsel's failure to timely file a YOA application, which if successful would have prevented him from being charged capitally, constituted deficient performance, and bespeaks a lack of constitutionally effective advocacy on behalf of Mr. Jackson. 40. In determining whether youthful offender status is appropriate, the trial court cannot rely solely on consideration of the nature of the crime charged, but must rely on additional evidence, including not only prior criminal history, but other relevant factors. In response to the defense motion in this case, the trial judge merely stated that he would "get a verbal from the probation officer," because he understood that "he has priors before Judge Reese, ...." (R. 33.) Counsel should not merely have relied on this minimal investigation, but should have attempted to present testimony both about the prior crimes, and the compelling evidence of Mr. Jackson's upbringing, including the lack of a father figure, the
impoverished, violent and unstable environment in which he was brought up, and resulting gang and drug activity, as well as evidence that Mr. Jackson was immature for his age, and considered to be a "low achiever," as evidence supporting their motion that Mr. Jackson would benefit from an informal, confidential and rehabilitative system. Pardue v. State, 566
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So. 2d 502 (Ala. Crim. App. 1990). Had counsel timely filed the YOA application, and presented relevant evidence to the trial court in support of this motion, the application would have been granted, and Mr. Jackson would not have been charged with capital murder. 41. Additionally, counsel should have challenged the underlying convictions which formed the basis for the aggravating circumstance against Mr . Jackson that "the capital offense was committed by a person under sentence of imprisonment ." (C. 174.) The trial court found that this aggravating factor was established by the fact that " when Jackson committed the offense he was on probation on suspended sentences for convictions of
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burglary in the second degree and theft of property in the first degree (CC-95-2147-EWR) and possession of marijuana in the first degree (CC-95-2367-E)NR)." (C. 175.) Counsel should have challenged the voluntariness of Mr . Jackson ' s guilty pleas in these three cases, and shown that convictions were unconstitutionally obtained . Had counsel challenged the underlying convictions , counsel could have then challenged the State's theory that Mr. Jackson was on parole at the time that he committed this crime . This would have established that one of the two aggravating factors presented to the jury and relied upon by the trial court was invalid, and therefore could not form a basis for the sentence of death. 42. Moreover, counsel conceded guilt prior to trial by telling the judge that they had just had a "come to Jesus with our client yesterday," and thus "we think we know where
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the weapon may be located in this case ." (R. 25.) Even the court acknowledged that counsel's statements would assist Mr. Jackson in getting convicted : "If he wants to start
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helping to convict himself, then that's his prerogative." (R. 26.) After this revelation, counsel then failed to investigate and present the very exculpatory evidence referred to: "the weapon that the State alleges committed the crime is not the weapon," which was "not the weapon that our client had in his possession at the time of the shooting." (R. 26.) Counsel should not have disclosed to the trial court and sentencing authority evidence that suggests that Mr. Jackson was involved in the crime without then providing the court with a theory or argument as to why Mr. Jackson should not be convicted of capital murder or sentenced to death based on that information. This constitutes deficient performance that prejudiced
Mr. Jackson. 43. Counsel were ineffective during pretrial proceedings, including during jury selection. During the voir dire of one of the jury panels, counsel's questioning of the jury members suggested that it was Mr. Jackson, not the State, who had the burden to prove
innocence beyond a reasonable doubt. (R. 146.) The trial court attempted to caution trial counsel by alerting counsel to the fact that "You're kind of suggesting that the defendant has to prove reasonable doubt. I don't think that you meant to say that." (R. 146.) 44. In this case, such a burden shifting instruction to the jury was devastating. The evidence in this case was entirely circumstantial. The record in this case does not contain
evidence sufficient to establish that a robbery took place during the murder or that Mr. Jackson was involved in the alleged robbery. Moreover, the absence of any inculpatory forensic or other physical evidence which connects Mr. Jackson to the crime cases serious
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doubt on the State's prima facie case. (R. 19, 29, 422.)
45. The State's failure to satisfy its burden of proof would have allowed the jury to acquit Mr. Jackson of capital murder . But for trial counsel ' s burden shifting instruction, which allowed the jury to believe that it was Mr. Jackson, and not the State, who had the burden of proof in this case , followed by trial counsel ' s failure to present any evidence to contradict the State's theory of Mr. Jackson's guilt - other than the statement of Gerard Burdette, which was read into the evidence -- Mr. Jackson would not have been convicted of capital murder. 46.. Defense counsel's voir dire was desultory and wholly inadequate. In addition,
counsel failed to remove prospective jurors who harbored explicit views that were antithetical to fairness and impartiality . Counsel failed to secure an expert who could have helped them conduct an adequate voir dire . Trial counsel ' s deficient performance failed to guarantee Mr. Jackson a fair and impartial jury and therefore , Mr. Jackson should be granted a new trial. 47. The importance of voir dire in protecting an individual ' s constitutional rights is well established . "[P]art of the guarantee of a defendant ' s right to an impartial jury is an
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adequate voir dire to identify unqualified jurors." Morgan v. Illinois, 504 U.S. 719, 729 (1992); see also Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) ("Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence, cannot he
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fulfilled."); Dennis v. United States, 339 U.S. 162,171-72 (1950); Morford v. United States, 339 U.S. 258, 259 (1950). 48. Counsel ' s failings during the jury selection continued when counsel failed to
object to the trial court ' s improper decision to grant the State ' s challenges for cause. Counsel should have marshaled evidence and argued that the record did not adequately demonstrate that jurors Anderson, Atkins, Coleman, Elsberry and Gray had views which would "prevent
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or substantially impair" the performance of their duties as jurors in accordance with instructions and their oaths. Had counsel appropriately alerted the trial court to this fact, the trial court would not have granted the State ' s challenges for cause , and Mr. Jackson ' s rights to a fair and impartial jury would not have been violated . See infra issue XIII ( incorporated by reference). 49. Counsel also failed to adequately object to the prosecutor's use of discriminatory strikes against the veniremembers. See infra issue X (incorporated by reference). Mr. Jackson is black. There were 42 prospective jurors on Mr. Jackson's jury venire, of which 25 were female and 19 were black. The prosecutor had 15 peremptory
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strikes, of which he used 8 to remove women and 8 to remove blacks. Counsel should have more effectively argued that the prosecutor used his peremptory strikes in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and challenged the prosecutor's strikes as a violation of J.E.B. v. Alabama, 511 U.S. 127 (1994). See Eagle v. Linahan. 279 F.3 d 926 (11 `" Cir. 2001 ) (finding counsel ineffective for failing to adequately
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raise Batson claim). In this case, the trial court refused to find a prima facie case of discrimination despite the prosecutor 's use of 8 of 15 of his peremptory strikes to remove 8 of the 19 black veniremembers. Additionally, the prosecutor used 8 of 15 peremptory strikes to remove females. 50. Instead of simply arguing to the judge that the prosecutor struck "six out of seven [black jurors] in a row," (R. 156), as a basis for a prima facie case , the defense should have presented evidence and argument to show that, in light of the standards articulated in Ex Parte Branch, 526 So. 2d 609 (Ala. 1987), the struck jurors were as heterogeneous as the community as a whole; that there was a lack of meaningful voir dire in this case and that the
1 1 1 1 1
District Attorney for Montgomery County has a history of discrimination in jury selection. See, e.g., Bui v. Haley, 321 F.3d 1304 (11" Cir. 2003) (habeas relief granted where prosecutor engaged in racially discriminatory jury selection); Ex parte Yelder, 630 So. 2d 107, 109 (Ala. 1992). 51. Based on this evidence, the trial court would have found a prima facie case of discrimination and forced the prosecution to give race and gender neutral reasons for its strike. Counsel would then have been able to show that the prosecution was removing jurors from the venire solely on the basis of race and gender, which is necessarily prejudicial not only to Mr. Jackson but to the jurors and the entire criminal justice system as well. Trial counsel's failures during voir dire denied Mr. Jackson the right to a fair trial and impartial jury.
20
I 1
52. Mr. Jackson's trial counsel failed to properly challenge the State's investigation and presentation of its case, failed to adequately cross examine witnesses, failed to object to irrelevant and prejudicial evidence introduced by the State, and failed to challenge the State's "expert" testimony. Counsel therefore abdicated its constitutional responsibility to subject the State's case to adversarial testing, see Strickland v. Washington, 466 U.S. 668 (1984), and allowed the State to convicted Mr. Jackson solely on the basis of uncorroborated accomplice testimony. The errors of counsel allowed the State to present considerable evidence that
would otherwise have been suppressed, properly excluded, or discredited by the jury. 53. At Mr. Jackson's trial, the State' s case against Mr. Jackson rested primarily on the testimony of the three co-defendants: all of whom were themselves indicted for capital murder, (R. 299, 369, 424), and who all were housed together at the Montgomery County Jail
1 I
(R. 17.) Even with the incentive and the opportunity to synchronize their facts, the stories of these three co-defendants did not match up. Given the circumstantial nature of this case, the testimony of these witnesses was critical to the State's ability to establish Mr. Jackson's guilt in this crime. Nonetheless, trial counsel failed to effectively exploit the inconsistencies in their testimony. (See, e.g. R. 321, 336, 351, 352; 388, 409, 413, 414.)
t
1 1 I 1
54. Had trial counsel effectively undermined the testimony of these three codefendants, the credibility of this testimony would have been in serious doubt. Without the testimony of Mr. Barnes, Mr. Williams and Mr. Rudolph, there is no evidence to link Mr. Jackson to the crime of robbery, and thus no evidence upon which he could have been
21
convicted of a capital crime. The other witness testimony and evidence presented by the State did not corroborate these accomplices or provide the jury with an adequate basis for finding Mr. Jackson guilty of capital murder. Indeed, the other evidence consisted of testimony about the victim's death from his wife, a Sylvest Plant worker about the car collision (though he was unable to identify anyone at the scene of the crime), testimony from
Ms. Flowers and her daughter about the Buick LeSabre, testimony from members of the
Montgomery Fire Department and Police Department about the crime scene and evidence, chain of custody testimony and forensic science testimony about the bullets and cause of
1 1 1
death, and finally testimony from the investigating officer about his interviews with the accomplices and Mr. Jackson. Without this testimony, the jury would not have convicted Mr. Jackson of capital murder. Trial counsel's failure to adequately cross examine these and the numerous other witnesses presented by the State constitutes ineffective assistance of counsel. 55. Counsel was ineffective for failing to conduct an adequate cross-examination of many State witnesses, including Victoria Moss, Leroy Geary and A.C. Portersfield. Additionally, counsel failed to effectively cross-examine the State's law enforcement witnesses about their collection and testing of evidence, as well as their investigation of Mr.
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Jackson and other possible suspects. These witnesses include Andrew Signore, Joe Saloom, James Lauridson, and Stephen Smith. For example, the evidence suggests that there may have been another individual, a female present, and involved in the death of Mr. Moore.
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22
1
However, counsel never spoke with witnesses about this possibility or further investigated this woman's involvement. Had counsel conducted outside investigation, they would have established that Mr. Jackson was not guilty of capital murder.
56. Counsel should have challenged the voluntariness of Mr. Jackson's statements in front of the jury. Although the trial court instructed the jury to consider the voluntariness
of Mr. Jackson 's statement, and furthermore instructed the jury that if the statement was
involuntary , the jurors were to assign no weight to it, (R .75-76), because counsel presented no evidence or argument as to why the jury should not give the statement much weight, their performance was defective . Had counsel conducted investigation , counsel could have
1 1 1 1
evidence about the circumstances of Mr. Jackson ' s interrogation, including the following: 1) Mr. Jackson was questioned alone for four hours by two officers , who visibly displayed weapons on their duty belts, in an eight by eight windowless room containing several pieces of furniture, ( Supp . R. 22-24); and 2) during this interrogation, Mr. Jackson was seated approximately one to two feet from one of the officers , ( Supp . R. 23-24), he was not pennitted to eat or smoke , ( Supp . R. 24-25 ), he was not told that he could be executed for the crime with which he was being charged , and a bond was never discussed. (Supp . R. 26, 30.) 57. Additionally, counsel would have clear evidence - as documented in school records, records from the Department of Corrections, and records from the Department of
1 I
Youth Services -
that Mr. Jackson suffers from serious mental impairments. As a
consequence of these mental impairments, at the time of the questioning by the police Mr.
23
1
Jackson was an eighteen year old "low achiever," (Supp. C.R.2;, R. 61, 64), who was
11
susceptible to suggestion, (Supp. R. 62), respectful of his elders, (Supp. R. 67), and eager to please, (Supp. R. 67). This evidence, if presented to the jury, would have been critical to both the judge and the jury' s assessment of the voluntariness of Mr. Jackson's statement in determining how much weight, if any, to give to this statement. 58. Counsel failed to effectively investigate and challenge the testimony of the state experts with regard to the ballistics evidence. For example, the State's expert could not conclusively testify that the bullet recovered from Mr. Moore came from the shell casing
1 1 1 1 1 1 1
found at the scene, or that either of these were necessarily fired from the gun that Mr. Jackson was alleged to have been carrying, a gun that was never recovered or presented as evidence. (R.504.) Trial counsel failed to effectively take advantage of this gap in the State's evidence and use it to show that Mr. Jackson was not responsible for Mr. Moore's death. Had counsel effectively cross examined the experts with regard to ballistics evidence, and presented expert testimony establishing not only that the bullet may not have come from the gun that Mr. Jackson was alleged to have been carrying, but that it could have just as easily come from the guns carried by the co-defendants on that night, counsel could have argued that Mr. Jackson was not guilty of capital murder, and on this basis urged the jury to acquit him of this charge. 59. Counsel was ineffective for failing to object to irrelevant and prejudicial evidence introduced by the State. This evidence included prejudicial pictures of the victim
24
after he was killed. (R. 191.) Additionally, during the testimony of Stephen Smith, the State
introduced a video of the crime scene . (R. 259.) These prejudicial and inflammatory photographs and videos seriously prejudiced Mr. Jackson, and counsel should have objected to them on that basis.d See in fra issue XII (incorporated by reference). Counsel also failed to object to the trial court' s improper admission of evidence that did not have a proper chain
1 I 1 1 1 1 1
of custody. (R. 499-500.) See infra issue XIV (incorporated by reference). The presentation of this evidence seriously prejudiced Mr. Jackson as this evidence inflamed and prejudiced the jury and accordingly undermined the reliability of Mr. Jackson's conviction and sentence of death. This failure constituted ineffective assistance of counsel. 60. In addition to failing to contest the State's theory of events , trial counsel failed to present a viable theory of defense. During opening argument, counsel simply referred to the State's burden of proof, and reminded the jury to consider the bias of the co-defendants when assessing the reliability of their statements . (R. 168-73.) At no point did trial counsel set forth a viable theory of defense that would have allowed the jury to acquit Mr. Jackson of capital murder. 61. After the State had rested , counsel then failed to present any witnesses, save for the statement of Gerard Burdette, which was read into the transcript by the two defense attorneys. (R. 33.) Trial counsel presented no other witnesses, and failed to marshal
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I
'Attorney Russell initially objected to the admission of the video "until after we have seen it," but was reminded by his co-counsel attorney Bruner. that he "had seen it." It was then admitted. (R. 259.) 25
1
evidence in support of a conviction of less than capital murder. As articulated earlier, counsel should have presented evidence, in the form of witnesses including Gerard Burdette, Lacreama Moore, and family members and friends such as Marilyn Jackson, LaQuanda Jackson, Wanda Jackson, Keisha Young, Monica Taylor, Julia Taylor, and Greg McGee, that this crime involved drug and gang activity, and not a robbery. See paragraphs 24-27. Had counsel presented this evidence and argument , the jury would not have convicted Mr. Jackson of capital murder. 62. Trial counsel ' s closing statement was similarly inadequate . After the State had
1 1
an opportunity to rebut Mr . Burdette ' s statement, defense counsel then presented a closing argument in which counsel once again reminded the jury of the burden of proof, pointed out the inconsistencies in the co-defendant ' s statements and argued that the facts and the story "ought to tell you and give you a gut feeling that the State has proven its case beyond a reasonable doubt ." (R. 88.) Mr. Jackson ' s counsel failed entirely in argument to advocate
on his behalf. See Herring v. New York, 422 U. S. 853 ( 1975) (" ... no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment."). 63. Had counsel appropriately investigated the case , they would have presented
evidence that Mr . Jackson was not guilty of capital murder because there was no robbery involved, but instead it was a case of a drug deal gone bad. On this basis, counsel could have then presented argument, both in opening and closing , that, in contrast to the State's tlheonl,
26
1
of events, Mr. Jackson was not guilty of capital murder. Had this evidence and argument been presented, the jury would not have found Mr. Jackson guilty of capital murder. 64. Counsel should have additionally argued that the evidence showed that the bullet recovered from Mr. Moore's body did not necessarily come from the gun that Mr.
1 i I
Jackson was allegedly carrying, and that it was just as likely that it was one of the codefendants who was responsible for Mr. Moore's death. Had counsel presented this evidence and made these arguments, the jury would have likely acquitted him of capital murder and/or the judge would have not sentenced him to death based on his minor participation in the crime . This constitutes ineffective assistance of counsel. 65. Counsel failure to ensure a complete appellate record by ensuring that a transcription of all proceedings in this were accurately transcribed. At numerous points during the trial, either the State or the trial court requested that the discussions be off the record. (See e.g R. 250, 368, 530.) It is absolutely essential that capital sentences be reviewed on a complete record. See Dobbs v. Zant, 506 U.S. 357, 358 (1993) (reversing capital conviction where the Court of Appeals refused to consider the sentencing hearing
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transcript); see also Gardner v. Florida, 430 U.S. 349 (1977) (plurality opinion) (emphasizing importance of reviewing capital sentences on a complete record); Gregg v. Geor ia, 428 U.S.
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153, 167 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (Georgia's capital sentencing provision requiring transmittal on appeal of complete transcript and record is important "safeguard against arbitrariness and caprice.") Counsel's failure to ensure an
27
1
accurate and complete record in this case constitutes ineffective assistance of counsel because it precluded the appellate courts from reviewing the entire record in determining the validity of Mr. Jackson ' s capital conviction and sentence of death , and was therefore prejudicial to Mr. Jackson. 4. Trial Counsel Failed to Request and Failed t ObJect to the Trial Court's Fa ilure to Instruct the aT__ Ju` on the Lesser Included Offense of Robbe 66. Although the State's evidence showed that the victim was killed and that the victim ' s car was stolen, the State's evidence also showed that the car was stolen only as an
1 1 1 1 1 1
"afterthought" and that the robbery was thus a separate crime from the murder. The trial court' s failure to ensure that the trial courtproperly instructed the jury on the lesser included offense of robbery, by first requesting and then objecting to the trial court's failure to do so, constitutes ineffective assistance of counsel that prejudiced Mr. Jackson . See infra issue VI (incorporated by reference).
5. Trial Counsel Failed to Ob'ect when the Trial Court Im ro erl Left the Courtroom While the Ju Watched Mr. Jackson's Videotaped Statement.
67. During Mr. Jackson' s capital trial , while the jury watched Mr. Jackson's videotaped statement , the trial judge stopped the video and told the jury that it was "not important for [his] purposes to see it," and because the trial judge had "some other things to do," the judge left the courtroom. (R. 524.) Subsequently. the court reporter instructed the jury before they left for the day. (R. 525.) This was improper, and trial counsel's failure to
28
object to this constitutes ineffective assistance of counsel . See infra, issue VIII ( incorporated
by reference). 6. Trial Counsel Failed to Object to the Trial Court's Improper Instruction on Reasonable Doubt
68. During the guilt phase of Mr. Jackson's trial, the trial court improperly instructed the jury on.reasonable doubt, which lowered the State ' s burden of proof, in violation of Mr . Jackson's state and federal constitutional rights . Trial court ' s failure to ensure that the jury was properly instructed constitutes ineffective assistance of counsel. See
1 1 1 1 1 1 1 1 I I
infra, issue XI (incorporated by reference).

7. Trial Counsel Failed to Ensure that the Jurors were Properly Instructed about the Accom plice Corroboration Requirement 69. The most significant weakness in the State ' s case against Mr. Jackson was the failure to adequately prove the element of robbery, the very element which elevated this crime to capital murder . Critically, the State ' s robbery case rested on the testimony of three accomplices, individuals who themselves were indicted for the same crime of capital murder, individuals who all hoped to gain something by testifying, and individuals who were housed together in the Montgomery County Jail prior to trial. While the contradictions in their testimony are apparent , what is even more apparent is that this testimony with respect to robbery remained wholly uncorroborated by any other evidence. 70. Though trial counsel moved for a judgment of acquittal on this basis , the trial court erroneously pennitted the State to rely on this uncorroborated testimony to gain a 29
t
conviction against Mr. Jackson. Trial counsel did not, however, move the trial court to
properly instruct the inrorc about the accomnlice corroboration reainirenient . Trial counsel's
performance in this regard was deficient. See infra, issue IX (incorporated by reference). But for counsel's failure, the jury would not have convicted Mr. Jackson of capital murder.
8. The Cumulative Effect of Counsel's Perfonnance Denied Mr. Jackson his Ri ht to Effective Assistance of Counsel at the Guilt Phase of His Capital Trial 71. These errors denied Mr. Jackson the effective assistance of counsel in violation of the Alabama Constitution, and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. See United States v. Chronic, 466 U.S. 648, 659 (1984). Daniel v. Thigpen, 742 F. Supp. 1535, 1561 (M.D. Ala. 1990). But for counsel's deficient performance, Mr. Jackson would not have been convicted of capital murder and sentenced to death. Strickland v. Washington, 466 U.S. 668 (1984); Williams v. Tamer, 529 U.S. 362 (2000). B. Trial Counsel Was Ineffective During the Penalty and Sentencing Phases of Mr. Jackson's Trial Thus Resulting in the Unjust and Unconstitutional Imposition of the Death Penalty. 72. Mr. Jackson's trial counsel was ineffective during the penalty phase of the trial and at the judicial sentencing hearing. Though the jury returned a unanimous life verdict in less than an hour, as a result of trial counsel's ineffectiveness, the trial judge nonetheless overrode this verdict and sentenced Mr. Jackson to death. Despite numerous mitigating
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30
factors that exist in this case -- both statutory and non -statutory - trial counsel put forth very little evidence at the penalty phase of the trial. Sonya Ringstaff , Mr. Jackson's girlfriend, testified that Mr . Jackson was not violent , truthful, and "an understanding, nice young man." (R. 564.) The testimony of Marilyn Jackson, Mr. Jackson's mother, covered only two and
1 1
a half pages of transcript , and included a plea to the jury to "spare my son's life ," as he was her "only son." (R. 567-68.) The combined testimony of these witnesses, which only lasted long enough to fill fifteen pages of transcript, constituted the entirety of Mr. Jackson's penalty phase evidentiary presentation and did not even begin to explain the complexities of Mr. Jackson ' s character, his mental and emotional impairments, his troubled upbringing and his familial history of alcohol and drug abuse. More critically, after this minimal presentation of evidence to the jury, trial counsel failed to proffer any additional evidence at the judicial sentencing phase ; indeed counsel barely made an argument as to why Mr. Jackson should be sentenced to life without the possibility of parole. 73. Trial counsel ' s representation of Mr. Jackson at the penalty phase and judicial sentencing hearing of his capital trial was inadequate and denied Mr. Jackson a fair sentencing phase determination as required under the Fifth , Sixth, Eighth , and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama law. Wiggins v. Smith. 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000); Strickland v. Washinn, 466 U.S. 668 (1984).
1. Trial Counsel Failed to Investi ate and Present even a Portion of the Available Mitigation Evidence During the
31
Penalty Phase and Sentencing ffiâri.n

74. In a capital case , trial counsel has the constitutional duty to fully investigate and prepare for the penalty phase of the trial. Wiggins, 123 S. Ct. at 2541-42 ("counsel's investigation into Wiggins ' background did not reflect reasonable professional judgment," and constituted ineffective assistance of counsel ); Williams, 529 U.S. at 396 (counsel has an obligation to conduct a thorough investigation into defendant ' s background; failure to do so constituted ineffective assistance of counsel); Strickland, 466 U.S. at 690-91(counsel has a duty to investigate at the penalty phase of a capital trial). The trial court and the jury must
consider "any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978). Thus, trial counsel "has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible
1 1
mitigating evidence." Porter v. Sin_letarv, 14 F.3d 554, 557 (11th Cir. 1994). 75. Trial counsel should have obtained complete and accurate information regarding Mr. Jackson's family and social history, educational history, medical history, mental health history, employment and training history, prior adult and juvenile correctional experiences, and any community, religious and cultural influences. See Wi ins, 123 S. Ct. at 2537 (citing the American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penal Cases, 11.8.6, p.133 (1989), as "guides to determining what is reasonable" conduct in capital defense work).
32
76. Trial counsel in Mr. Jackson' s case failed to meet these minimum requirements. Thus, it is necessary to find that defense counsel was ineffective in their penalty phase representation of Mr. Jackson. See Wig gins , 123 S. Ct. at 2542 (counsel ineffective for failing to investigate and present evidence of client's "troubled history" including abuse, neglectful parenting and diminished mental capacities); Williams, 529 U.S. at 395-96 (counsel ineffective for failing to thoroughly investigate and present evidence of client's "nightmarish childhood," including parental neglect, abuse, and evidence that defendant was "borderline mentally retarded" and did not advance beyond the sixth grade in school); Brownlee v. Haley, 306 F.3d 1043, 1070 (11`" Or. 2002) (counsel's failure to investigate, obtain, or present the "powerful mitigating evidence of [defendant]'s borderline mental retardation, psychiatric disorders, and history of drug and alcohol abuse"constituted ineffective assistance of counsel); Harris v. Dugger, 874 F.2d 756 (11th Cir. 1989) (finding counsel ineffective in penalty phase because of lack of investigation into family background and other mitigating evidence). 77. Trial counsel in Mr. Jackson's case did not conduct the minimally adequate investigation needed for effective penalty phase representation. Trial counsel made no effort
to interview Mr. Jackson's family members regarding available mitigating evidence. Mr. Jackson has numerous family members and friends, including sisters, Laquanda Jackson and Wanda Jackson; two half-sisters, Dmitri Gaston and Keisha Gaston; a grandmother, Della
1 1
Jackson; a grandfather, Tommy Taylor; aunts, Joyce Harvest, and Geraldine Taylor; a great
aunt. Betty Brawlin; uncles, Freddie Owens, Donald Collins, and Roosevelt Emerson, Jr.; and cousins, Christopher Harvest, Corey Taylor, Julia Taylor, Monica Taylor, Shantay Taylor, Chakka Harvest, Decarlos Harvest, Micky Harvest, Michael Harvest, Detrick Collins, and Gary Collins, who were not interviewed or asked to testify. Most of these individuals were living in and around Montgomery , Alabama at the time of the trial and were readily available to be interviewed regarding mitigating evidence . In fact, many of these family members
1 1
were present at the trial and were ready to testify regarding mitigating evidence. This constitutes deficient performance. 78. The fact that trial counsel called some witnesses to the stand during the penalty phase does not render their performance effective . If trial counsel ' s purpose was to bring out the humanity and character of Mr. Jackson by having these witnesses testify , this intention "stands in stark contrast to the presentation that actually took place." Collier v._Tur Din, 177 , F.3d 1184 , 1200 (11th Cir. 1999). Trial counsel's examination of these witnesses was perfunctory, deficient, and prejudicial. 79. Marilyn Jackson, Louis Taylor, Thelma Owens, and Sonya Ringstaff were not
able to present a compelling picture of Mr. Jackson or give the information about Shonelle Jackson that they wanted to give; nor were they prepared by trial counsel for their testimony. Trial counsel failed to meet with any of these witnesses prior to the morning their testimony was delivered. None of them understood the nature of their testimony. Effective trial
counsel would have explained to these witnesses the critical importance of presenting a
34
1 f
narrative of Mr. Jackson's life to the judge and jury in order to show them Mr. Jackson's humanity. 80. Moreover, trial counsel failed to elicit any testimony regarding compelling mitigating evidence in this case, including, inter alia: Mr. Jackson' s lack of a father figure or other male role remodel, his religious influences and experiences, his devotion to family members, and his impoverished childhood characterized by illicit drugs , alcohol, and the continuous threat of random destructive violence. That counsel failed to talk with these
witnesses and prepare them for their testimony is evident from the witnesses ' testimony at trial. For example, Marilyn Jackson, Mr. Jackson's mother, was asked by trial counsel to "tell me about his upbringing and his school life." (R. 567.) In response, Ms. Jackson's response was simply that "he went to school . He went as far as the ninth grade in school." (R. 567. ) Trial counsel ' s "minimal questioning of[Ms. Jackson] resulted in the jury ' s being
1 1 1
deprived of substantial mitigating evidence regarding [Mr. Jackson]." Cunningham v. Zant, 928 F.2d 1006, 1017 (11th Cir. 1991). This evidence of Mr. Jackson's childhood could also have been presented by the numerous family members who had contact with Mr. Jackson throughout these years, including those individuals listed above. 81. Mr. Jackson also has numerous friends, including James McGee, Keisha Young, A.C. Williams, Marshal Woods, Samuella McMillian, Sonya Ringstaff, and Latrice Walker, and other community members, including Rick Cotton, Latanya Austin, and Eddie Woods, who were available as sources of mitigating evidence related to Mr. Jackson's family
35
and social history, employment history , medical history, and mental health history . None of these people were contacted by trial counsel; had they been contacted, they would have been
1 1
willing and able to present testimony about Mr . Jackson's childhood, including testimony about the violence , poverty, drugs, and alcohol that characterized the household in which Mr. Jackson was raised. 82. Indeed, communication with Mr. Jackson's family and friends was so lacking, they were unaware of the trial court's power to override the jury's 12-0 life recommendation.
Family and friends who attended the trial were relieved when they heard the jury's recommendation for life . Because trial counsel never explained the process through which Mr. Jackson would be sentenced, family and friends believed the jury's life recommendation was the final adjudication in Mr. Jackson' s case . They were shocked and horrified when they learned , not through Mr. Jackson's attorneys, but through a co-worker of Thelma Owens that Shonelle was actually sentenced to death. Upon hearing this news on the radio , the coworker informed Mrs. Owens who then called Marilyn Jackson. Ms. Jackson was left with the task of circulating this information among Shonelle ' s friends and family. Had trial
counsel met with Mr. Jackson's family and friends, they would have understood that the trial court had the power to sentence Mr. Jackson to death, and would have been able to provide compelling testimony to persuade the sentencing authority that a sentence of life without possibility of parole was appropriate in this case. 83. In addition to defense counsel's failure to contact people who would offer
36
useful mitigation evidence, counsel failed to procure necessary records documenting Mr. Jackson's life. These records include education records, housing records, mental and physical health records, employment records, correctional records, and religious records of both Mr. Jackson and his parents and siblings. These records would have been particularly important, as they would have corroborated the testimony that should have been adduced by family members and friends regarding Mr. Jackson's childhood.
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84. Had trial counsel obtained these records and interviewed even a portion of the potential witnesses who were willing to testify for Mr. Jackson, trial counsel would have easily uncovered a vast amount of mitigating evidence. This evidence would have illuminated Mr. Jackson's childhood for the court, and revealed that he was raised in a house characterized by neglect, absent or disabled parental figures, poverty, rampant drug and alcohol abuse, and a constant threat of violence. 85. A reasonable investigation would have uncovered evidence of Mr. Jackson's unstable homelife. Interviews with family members, including Geraldine Taylor, Julia Taylor, Monica Taylor, Joyce Harvest, and Thelma Owens, and medical records would have revealed that Mr. Jackson's parents were heavy drug users, and the fact that Mr. Jackson's mother was using drugs, including crack and smoking marijuana, both before Mr. Jackson's birth and during his early childhood. His parents use of crack and marijuana not only created an unstable homelife, but contributed to Mr. Jackson's impaired mental and emotional
development.
37
86. Mr . Jackson ' s parents, Marilyn Jackson and Louis Taylor ,
had serious drug
addiction problems throughout Mr. Jackson's childhood. Thelma Owens, Geraldine Taylor, Julia Taylor, Monica Taylor, and Joyce Harvest would have testified that as a consequence of this drug use, not only was desperately needed family money diverted to purchasing drugs, but the children were exposed to a host of people continuously coming in and out of their home to use illicit drugs. 87. Members of the community were well aware of Marilyn and Louis' drug use. Indeed, the level of their use, and their concomitant disability as parents was so severe that testimony would have revealed that children at school often teased Shonelle about Marilyn and Louis ' drug abuse problem. 88. In Mr. Jackson's impoverished household, this drug abuse created further
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financial instability . Marilyn Jackson was on welfare and barely able to feed her children, yet nonetheless diverted much of her money to supporting her drug use. In fact , Marilyn
Jackson often sold the family's food stamps in exchange for cash so she could support her drug habit. 89. As a result of his parents' drug use, Shonelle's childhood was marked by extreme instability, absence of a father figure, violence, drugs, and alcohol. The testimony
1 1
of family members and friends, including Joyce Harvest, Marilyn Jackson, Laquanda Jackson, Wanda Jackson, Geraldine Taylor, Monica Taylor, Thelma Owens, and Keisha Young, as well as court and correctional records, would have established that Mr. Jackson's
38
father, Louis Taylor, was chronically imprisoned when Shonelle was young , and even when not incarcerated , was usually either using drugs and alcohol or was simply absent. Mr. Jackson ' s father was constantly in legal trouble , in large part because of his drug use and alcoholism; family members and friends would have testified that as a result he did not provide any support for Mr. Jackson. 90. Court records indicate that Louis Taylor was arrested no less than thirteen times before 1997. In fact, at the time Shonelle Jackson allegedly committed this offense, he was receiving no guidance or support from his father because, as Louis Taylor would have testified, he was in jail at the time.
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E
91. His father ' s pervasive absence was exacerbated by a complete lack of rnale adult role models in Mr. Jackson's childhood and youth. Thelma Owens would have testified, for example, that Shonelle attempted to fill this void by spending time with his uncle Freddie Owens, but that Mr. Owens was not able to make up for the absence of stable male role models within Shonelle ' s household. 92. Family and friends, including Joyce Harvest, Thelma Owens, and Geraldine Taylor would have testified that the only other male relative in Mr. Jackson's life - their brother, Roosevelt Emerson, Jr. -- was not around much while Mr. Jackson was growing up because he was either in the military or jail . As a result, as Shonelle got older , he began to fill the void left by his father and uncles with older peers who engaged in illegal and violent behavior.
;9
93. As a consequence of his parents' drug use and his father ' s absence, records and testimony from family and community members would establish that Mr. Jackson and his
siblings suffered from neglect; they grew up in an impoverished home and were not properly cared for. Family members, such as Della Jackson, Geraldine Taylor, Joyce Harvest, and Thelma Owens would have testified that Shonelle and his siblings were not properly clothed
and fed by their parents ,- and that they attempted to make up for these failings by providing the children with food and clothing. 94. All of the aforementioned family members would have testified to the impoverished conditions Mr. Jackson ' s family endured . Because Marilyn Jackson was unable to provide her children with necessities , Wanda and Laquanda Jackson would have testified that they were often forced to acquire nourishment from various sources outside the
home, including neighbors, the First Baptist Church and the Trenholm Court Community Center. 95. Relatives, such as Thelma Owens and Della Jackson, who were aware of Marilyn Jackson's desperate financial situation, would have testified that they knew the children were receiving inadequate care and therefore often dropped off basic necessities, such as food and clothing. 96. Marilyn Jackson would have testified that as a result of Louis Taylor's sporadic presence she was forced to provide for all three of her children on her own. Despite working
long hours, including double shifts lasting from 6:00 a.m. until 10:00 p.m., Ms. Jackson was
40
unable to support adequately her children. Consequently, the Jacksbn family was forced to live in public housing, which was plagued by violence, drugs, and prostitution. 97. Because his family did not have enough money to eat, Mr. Jackson's mother often asked him to borrow food, such as sugar, flour, and bread, from neighbors. It was approximately at this time that Shonelle began to steal things , and eventually became a gofer for older drug dealers established in the public housing development . His sisters and mother would have testified that while their father was absent , Shonelle tried his hardest to help support the family by selling drugs and obtaining money so he could buy clothes and other necessities. 98. Geraldine Taylor, Monica Taylor, Julia Taylor, Laquanda Jackson, Wanda Jackson, and Marilyn Jackson also would have testified regarding the Jackson's desperate financial situation . Each of them would have informed the court and the jury that, at one point, after Shonelle and his family had been kicked out of their home, they were forced to live with Shonelle's aunt, Geraldine Taylor. The home was cramped because Ms. Taylor was not only housing the four members of the Jackson family, but her own family as well. The Jackson family changed residences on no less than six occasions during Mr . Jackson's childhood and early teenage years. 99. This unstable life caused great trauma to Mr. Jackson, as is reflected in school records which, had they been obtained by trial counsel, would have established that in
1 1
elementary school. Mr. Jackson was missing school on a regular basis, and that by an early
41
age he had begun acting out at school and getting into fights with other kids. Records would have established that by the time that he was thirteen, Mr. Jackson had been suspended from
school numerous times and had been expelled twice. 100. In addition to a life of instability , and the resulting emotional trauma, Mr. Jackson has consistently struggled with diminished mental capacity . Education records and juvenile court records as well as testimony from relatives such as Thelma Owens and teachers such as Rosalyn Jordan would confirm his borderline intellectual functioning. 101. Indeed, Thelma Owens would have testified that her family has a history of mental deficiencies, including Marilyn Jackson ' s biological brother who is mentally retarded. Moreover, Ms. Jackson suffers from her own mental impairments for which she received specialized training as a youth. 102. Unlike the specialized training received by his mother, Shonelle Jackson received no meaningful parental supervision and , therefore, he continually struggled in school. Had counsel acquired Mr. Jackson's school records, they would have learned that he failed two grades and the only years he consistently received grades in the B range or above were those in which he was taking courses for the second time. Indeed, Shonelle severely struggled in school until the ninth grade when he dropped out. 103. Soon thereafter, as documented by Department of Youth Services records, it was determined that Shonelle was in the lowest twelve percent of sixteen year olds in terms of intellectual functioning. As a result, he was recommended for special education services.
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104. While average intellectual functioning children also require a certain degree of attention , family members, such as Della Jackson , Joyce Harvest, Geraldine Taylor, Monica Taylor, and Thelma Owens, would have testified that between the drugs, lack of financial support from Louis Taylor, and Marilyn Jackson's brutal work schedule, Shonelle never received even the minimal amount of academic attention one would devote to an average functioning child . Consequently, he certainly did not receive the type of specialized and individual attention needed to compensate for his impaired intellectual capacity.
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105. Moreover, Ms. Jackson's own mental impairments prevented her from providing appropriate and meaningful guidance to Shonelle. In this regard , Mr. Jackson had no one to whom he could turn. Family members, including Geraldine Taylor and Thelma Owens, would have testified that along with his already diminished mental capacity , Shonelle was never required or even encouraged to attend school by his parents. 106. As a consequence of Mr. Jackson ' s mental and emotional impairments, individuals such as Rosalyn Jordan and Thelma Owens would have testified that he was not as mature as other kids , that he could be easily swayed by others, and that he was unusually vulnerable to peer pressure. In addition, his Department of Youth Services records indicated that he had difficultly with negative peer influence. 107. Despite his susceptibility to peer pressure, testimony from family members, including Della Jackson, Dmitri Gatson, Monica Harvest, Joyce Harvest, Geraldine Taylor, and other community members, such as Latanya Austin, Rick Cotton, and his teacher,
43
Rosalyn Jordan , would have established that Mr. Jackson has always been eager to please and incredibly respectful towards members of society.
108. Eddie Woods and other members ofhe Trenholm Court Community, amongst others, would have testified that Shonelle occasionally performed yard work for them. Indeed, Shonelle has always been a hard worker who has always done well in structured environments , such as correctional facilities. 109. As a result of his family's desperate financial situation , Shonelle grew up in a neighborhood that was plagued by rampant drug use and accompanying violence. 110. Latanya Austin would have testified that during the developmental stage of Shonelle's life, the neighborhood in which Shonelle grew up was infiltrated by crackcocaine. She would have testified that by the mid-1980s Shonelle was living' in a
neighborhood where crack was rampant and by the early - 1990s gun shots were heard on a regular basis. 111. Indeed, Shonelle's psychological intake report from the Department of Youth Services reveal that violence deeply touched Shonelle ' s life . At the age of fifteen, Shonelle
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had one friend who died after being kidnaped and another who was murdered while being robbed. 112. Shonelle's exposure to violence did not stop at his front door; rather, he was continually exposed to violent activity at the hands of family members. At a very early age, Shonelle's father, Louis Taylor, carried a knife on his person most places he went. Louis
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Taylor, was often involved in violent altercations and court records would have revealed that on one occasion he was arrested for fighting with a police officer. Louis and Geraldine Taylor would have testified that on another occasion, Louis Taylor returned home with a gun shot wound. A panicked and disturbed Geraldine Taylor began to cry when she recognized that Louis had been shot.
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113. Nor was Louis Taylor the only parent prone to violence. Marilyn Jackson and Louis Taylor fought physically on a regular basis. Laquanda and Wanda Jackson would have testified that every few days Marilyn Jackson and Louis Taylor became physically violent with one another. In one particular incident, Marilyn stomped on Louis as he lay on the ground. Thelma Owens would have testified that Marilyn often had welts , bruises, and knots caused by Louis during their frequent fights. 114. Violence and the threat ofviolence was pervasive during Shonelle's childhood. Often it was promulgated by his parents. For example, Geraldine Taylor, Laquanda Jackson, Wanda Jackson, Marilyn Jackson, and Julia Taylor would have testified that Shonelle witnessed his aunt threaten his uncle Louis with being shot when he refused to leave the apartment on one occasion . It was in this environment of a ready resort to violence or a threat of violence in which Nlr. Jackson grew up. 115. Nor did Marilyn Jackson and Louis Taylor spare their children violent treatment. Laquanda and Wanda Jackson would have testified that their mother often gave
1 I
them whoopings for engaging in childish activity. Unlike his sisters, Shonelle was rarely if
45
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ever whooped by his mother; instead, he was thrashed by his father. Roosevelt Emerson, Jr. would have testified Shonelle was repeatedly beaten by his father with an electric cord, which resulted in whip marks on his arms and legs. 116. Laquanda and Wanda Jackson would have testified that the discipline affected the children in such a way that they eventually began to engage in a routine of disciplining each other when they had engaged in activity they thought was unacceptable. 117. Asa form of discipline, when Shonelle was young, his father and uncles would wrestle with him as if he was an adult, often causing extreme pain and injury. Shonelle's father would often come home drunk and physically fight or wrestle with Shonelle. These confrontations, fueled by alcohol and drugs, were even more violent than usual. 118. Marilyn Jackson, Louis Taylor, Laquanda Jackson, Wanda Jackson, Thelma Owens, Geraldine Taylor, Della Jackson, Julia Taylor, Monica Taylor, and Joyce Harvest would have testified that due at least in part to his violent behavior, Louis Taylor was often absent from the home. His sporadic presence was attributable to periodic arrests resulting in incarceration and fights with Marilyn that led to short periods of separation. 119. Shonelle tried to fill the void left by his father by protecting his sisters and buying his family things; however, Mr. Jackson was never able to fill the gap left by his
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father's absence in his own life. Due to a confluence of factors, including his father's absence and violence, Shonelle began socializing with individuals much older than he, and who were regularly engaged in violent and illegal activity. His family members and friends,
46
t
including Wanda Jackson and Keisha Young, would have testified that Shonelle joined a
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gang, which included much older young men than he, when he was a teenager. 120. Eddie Woods would have testified that Shonelle spent a considerable amount of time at his house, socializing with his children. Mr. Woods' children include Marshall (Bay-Bay), Tyronne, and Eddie. Latanya Austin, Eddie Woods, Laquanda Jackson, Monica Taylor, and Wanda Jackson would have testified that Shonelle was also close with Eddie Woods' grandson, Antwain Rainer ("Cornbread"). At the time Shonelle was fifteen,
Antwain Rainer was eighteen and Marshall Woods was twenty-two. 121. Lacking a responsible male role model, Shonelle instead turned to these
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individuals, as well as another individual, Tollie Redmon, who were somewhat older than Shonelle. Neither Antwain nor Marshall were capable of providing an appropriate role model; instead, they provided just the opposite. Monica Taylor, Laquanda Jackson, Wanda Jackson, and Latanya Austin would have shown that Marshall and Antwain consistently engaged in violent and illegal activity. 122. Given his pervasive exposure to violence and criminal activity, it is not surprising that by the age of twelve, Shonelle had already acquired a gun. In addition, Mr. Jackson began using drugs and alcohol at a very young age. Records from the Department of Youth Services indicate that by the time that he was thirteen, Shonelle had been diagnosed as alcohol dependent. This substance abuse was consistent throughout his life up to the time that he was arrested for this crime. In addition to using drugs and alcohol, Dmitri Gaston,
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Laquanda Jackson, Wanda Jackson, Julia Taylor, Monica Taylor, and Keisha Young would
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have testified that Shonelle became a gofer for these older gang members , selling crack and other drugs, to make money for both himself and his family. 123. Much of the money he made selling drugs , he used to provide his sisters and mother with necessities. Laquanda Jackson, Marilyn Jackson, Wanda Jackson, Keisha Young, and Monica Taylor would have testified that Shonelle primarily used this money to
provide for his family. In fact, Shonelle never owned a car himself nor did he ever acquire his own residence , but instead biked around the neighborhood.
124. Mr. Jackson's familial devotion was not limited to his immediate family.Dmitri Gaston, Julia Taylor, Monica Harvest, Laquanda Jackson, Wanda Jackson, Della Jackson, Joyce Harvest, Geraldine Taylor, Betty Brawlin, Freddie Owens, Donald Collins, Christopher Harvest, Shantay Harvest, Chakka Harvest, Decarlos Harvest, Julia Taylor, Monica Taylor, Gary Collins, Detrick Collins, and Sonya Ringstaff all would have testified that Shonelle loved all of them and he was well-loved by them. In addition, Laquanda Jackson, Marilyn Jackson, Wanda Jackson, and Sonya Ringstaff would have testified that he
loves his daughter, Zekia Jackson. 125. Mr. Jackson spent a great deal of time with his family growing up. Mr. Jackson's sisters would have testified that three of them spent an exceptional amount of time together. Marilyn Jackson's trust of her son resulted in Laquanda and Wanda being
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prohibited from leaving the house without Shonelle. Despite the age difference, Mr. Jackson
48
brought his sisters to church, the community center, and the jubilees.
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126. Had counsel acquired Mr. Jackson's records they would have showed that individuals outside Mr. Jackson's family often detected his desire to provide for loved ones and members of the community. This was confirmed by Department of Youth Services' records. 127. Mr. Jackson's familial devotion extended beyond his immediate family to his half-sister, cousins, aunts, and grandmothers. Growing up, Mr. Jackson spent a great deal of time with his half-sister, cousins, and grandmothers. Shonelle spent many weekends playing sports with his cousin, Christoper Harvest, and neighbors at his grandmother's house.
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Older relatives, including Betty Brawlin, Joyce Harvest, Geraldine Taylor, and Thelma Owens, found Shonelle respectful and well-mannered. Moreover, he was willing to lend a helping hand when chores needed to be done. His half-sister, Dmitri, would have testified that despite being a few years older than Shonelle, he tried to look out for her by steering her away from nightly hangouts he knew were unsafe. 128. Such devotion extended beyond Mr. Jackson's family to other significant persons in his life. Latrice Walker would have testified that Mr. Jackson was different from most young men who grew up in Trenholm Court. Rather, he was respectful and considerate. She would have recalled times when Mr. Jackson inquired into her well-being by asking after a long day whether she had enough to eat. 129. Evidence would have also established that Mr. Jackson is well loved by those
49
who know him. He has always played and continues to play an important role in his family, and make emotional contributions to his family members, including his grandmother, aunts, parents, siblings and his daughter. Had counsel conducted a reasonable investigation, they would have presented testimony revealing Mr. Jackson's dedication to his family. 130. Moreover, Mr. Jackson's sense of community and spirit manifested itself through his religious activities. Had trial counsel spoken with members of Mr. Jackson's family, they would have learned that Mr. Jackson attended church regularly when he was
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young. Della Jackson would have testified that as a child, she used to bring him and his sisters to church on a regular basis. Similarly, Mr. Jackson's cousins, Monica Harvest, Christopher Harvest, Decarlos Harvest, and Chakka Harvest would have testified that Shonelle was very close with his father's mother and they too attended church together often. In addition, Thelma Owens would have testified that Shonelle and his sisters att ended church with her every other weekend. 131. Nor was his religious devotion forced. Laquanda and Wanda Jackson would have testified that when extended family members could not pick them up to attend services, Shonelle and his sisters would walk to the local, First Baptist Church. Mr. Jackson's sisters and members of the First Baptist Church, such as Deacon Beasley, would have testified that Shonelle and his sisters were baptized during his pre-teen years. 132. Despite the vast amount of readily available mitigating evidence available related to Mr. Jackson's family history, medical history, criminal history, correctional history,
50
educational history and good character , trial counsel failed to adequately prepare and present this evidence at either the penalty or judicial sentencing phases of Mr. Jackson's trial. Had
'I
this evidence been presented , Mr. Jackson would have been sentenced to life without possibility ofparole. Their performance was clearly deficient and prejudicial to Mr. Jackson. See Wiggins, 123 S. Ct. at 2543 ( Court assessed the totality of the evidence to determine that "had the jury been confronted with this considerable mitigating evidence , there is a reasonable probability that it would have returned with a different sentence "); Williams, 529 U.S . at 420 ( stating that prejudice determination must rest on assessment of the totality
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of omitted and presented evidence rather than on idea that one piece of omitted evidence must require a new hearing); see also Collier v. Turnip, 177 F.3d 1184 (11th Cir. 1999) (citing counsel ' s failure to present the available evidence of defendant's upbringing, compassion , his poverty, and gentle disposition in holding counsel ' s performance ineffective); Harris v. Duaaer, 874 F.2d 756 (11th Cir. 1989) (finding counsel's performance ineffective and stating that jury knew little about defendant including the fact that family members described defendant as a devoted father , husband, and brother). 133. In Mr. Jackson's case, there was a reasonable probability that but for trial counsel's deficient performance in failing to present all the available mitigating evidence, the judge would not have imposed a sentence of death. See Williams, 529 U.S. at 419 (stating that fundamental unfairness to the defendant does not need to be found, rather a reasonable probability of a difference in outcome is sufficient to establish constitutionally
51
ineffective assistance of counsel).

134. The failure to present character evidence and evidence unrelated to dangerousness was extremely prejudicial . Such evidence " may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution ' s death-eligibility case." Williams, 529 U.S. at 421. If the court does not acknowledge this possibility, the court fails
"to accord appropriate weight to the body of mitigation evidence available to trial counsel." Td. (stating that even if found mitigating evidence did not overcome finding of future dangerousness , evidence of mental health and deprived childhood " might well have influenced the jury ' s appraisal of [defendant ' s] moral culpability"). 135. As a result of trial counsel's deficient performance, Mr. Jackson was
prejudiced as the judge and the jury failed to consider "the information needed to properly focus on the particularized characteristics of this petitioner." Armstrong v. Duaer, 833 F.2d 1430, 1433 (1 lth Cir. 1987); see Collier v. Tu in, 177 F.3d 1184 (11th Cir. 1999) (finding defendant prejudiced despite presence of several aggravating factors due to chance that jury
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confronted with contrast between defendant's acts on day of the crime and his history would not have voted for the death sentence); Harris v. Dug er, 874 F.2d 756 (11th Cir. 1989); Johnson v. Kemp, 615 F. Supp. 355 (N.D. Ga. 1985). 2. Trial Counsel Failed to Develop and Present a Penal and Sentencin g Phase Strate gy to Convince the Sentencing Authority that Life without Parole was the A ro riate Sentence in this Case.
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136. Because trial counsel had not conducted a constitutionally adequate investigation of the circumstances of Mr . Jackson ' s life, they failed to failed to develop a defense to the death penalty . Trial counsel ' s lack of penalty phase strategy i s apparent from
i I
the record.' At the conclusion of the guilt phase, trial counsel moved for a continuance because they intended to call probation officer Carolyn Flack as witness, but because "she wouldn 't come in voluntarily ," and because trial counsel had failed to anticipate the possibility of a penalty phase trial, she had not been subpoened and so she was not present in the courtroom . In assessing whether to grant a continuance , the trial court conducted an exparte hearing with the District Attorney - agreed to by defense counsel - in which the trial
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court agreed with the District Attorney's statement that defense counsel had "known all along, Judge, about this ," and expressed his frustration with trial counsel : "I couldn ' t agree with you more . I'm so mad I could chew nails ." (R. 530.)8 137. Trial counsel ' s opening and closing arguments at the penalty phase, as well as counsel's argument at the judicial sentencing hearing, were constitutionally deficient and prejudicial . See Dobbs v. Turnip, 142 F.3d 1383, 1389 (11th Cir. 1998) (citing Penryy.
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'Indeed, counsel did not even know how many jurors were required to impose a sentence of life without parole. When discussing jury instructions , trial counsel expressed surprise at the number of jurors needed : "Seven jurors , your honor? I always thought it was ten ." (R. 578.) 'Only part of this hearing is on the record. At some point, the trial court states , "[ l]et's go off the record," and nothing else about their conversation is recorded . (R. 532.) Because defense counsel declined to be involved in this hearing, and failed to ensure the presence of his client at all of these hearings, defense counsel did not have the opportunity to object to any improper decisions, or to effectively advocate on his client ' s behalf. 5.3
L nau h, 492 U.S. 302, 316 (1989)). At the judicial sentencing hearing, trial counsel's argument covered less than three pages in the transcript and consisted primarily of defense counsel's explanation that the jury's recommendation should be given "great weight." (R. 58.) 138. Trial counsel then failed to present any additional evidence to the judge, instead informing the trial court that "most of the other argument that we would have on this case has been included either in our proposed findings on what the court has heard at the penalty phase hearing and I don't think there is any use in my going over that." (R. 11.) 139. Given that the sentencing authority --under Alabama law - was authorized to reject the jury's verdict, trial counsel needed to marshal and present the mitigating evidence
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of Mr. Jackson's violent upbringing, impoverished community, lack of a father figure or other male remodel, mental impairments , religious influences and experiences , and familial devotion in order to persuade the sentencing authority that the jury had reached the correct decision when they unanimously sentenced Mr. Jackson to life without the possibility of parole. Counsel should have then argued to both the jury and the judge that these compelling
mitigating circumstances constituted a basis for the imposition of a sentence of life without the possibility of parole. Counsel's failure in this regard constitutes ineffective assistance of counsel. 3. Trial Counsel Failed to Obtain and Present Independent Exert Witnesses at the Sentencin and Penal Phases of Mr. Jackson's Trial
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140. Trial counsel also failed to obtain and present independent expert witnesses at the sentencing phase of Mr. Jackson's trial. Expert witnesses such as a social worker, an
investigator, and a mental health expert would have explained the likely causes of Mr. Jackson's mental and emotional problems and how those problems were relevant both to Mr. Jackson's defense and to his moral culpability. 141. An investigator "who has received specialized training [would have been]
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E
indispensible [in] discovering and developing the facts [that would have been] unearthed at trial. . . ." American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Commentary to Guideline 4.1 (2003). As an attorney's expertise does not extend to the area of investigation and his time is more wisely used when focusing on the legal research, this expert would have devoted the due amount of time to thoroughly researching and discovering all relevant mitigating evidence relating to Mr. Jackson's life. Id. 142. A social worker or mitigation specialist would have synthesized and evaluated the significance of the information obtained by the investigator. By compiling a psychosocial history of Mr. Jackson, such an expert would have "analyzed the significance of the information in terms of impact on development, including effect on [Mr. Jackson's] personality and behavior." Id. Had a social worker or mitigation specialist been called, he or she would have explained to the judge and the jury the multiple risk factors present in
1 1 I
Shonelle's life and how they affected his actions and development.
55
143. A mental health expert would have gathered information relating to Mr. Jackson ' s familial history of mental impairments and his stunted mental and academic development. Such an expert would then have explained the significance of Mr. Jackson's mental impairments and the multiple ways in which they affected his life, including, particularly, how these limitations would have rendered Mr. Jackson particularly ill-equipped
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to overcome the milieu of poverty, drugs, alcohol, neglect, and violence in which Mr. Jackson grew up. 144. An expert on drug and alcohol abuse would have testified about Mr. Jackson's lifelong battle with alcohol and substance abuse and how his use of drugs and alcohol impaired his mental state . This expert would have also assisted counsel in recognizing the importance of finding, developing, and presenting evidence regarding Mr. Jackson's drug use and alcohol abuse, as well as that of his parents and other role models . This expert could then have synthesized this evidence for the jury and the court, and would have elucidated how these factors resulted in an impaired and suggestible individual. 145. Trial counsel ' s failure to obtain and present independent expert witnesses at the sentencing phase constituted deficient perfonnance that prejudiced Mr. Jackson. Such evidence would have made it clear to both the jury and judge and that appropriate punishment for Mr. Jackson was life without the possibility of parole. But for counsel's deficient performance, the outcome of Mr. Jackson's trial would have been different and he
would not have been sentenced to death.
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146. Trial counsel's failure to investigate and present a compelling empathetic

portrait of Mr. Jackson to the jury and judge constitutes ineffectiveness. This performance cannot be characterized as strategic. By failing to present a full picture of Mr. Jackson to the jury and trial court, trial counsel "precipitated a breakdown in the adversarial process" and violated Mr. Jackson's constitutional rights under state and federal law. Collier, 177 F.3d at 1204. Mr. Jackson has a right, "indeed a constitutionally protected right to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer." Williams, 529 U.S. at 420. reversed. Therefore, Mr. Jackson ' s death sentence must be
4. Trial Counsel were Ineffective for Failing to Object to the Method of Execution in Alabama as Cruel and Unusual Punishment
147. Trial counsel was ineffective for failing to challenge the method of execution used by the State of Alabama. Trial counsel failed to marshal evidence which reveals that under the evolving standard of decency, Alabama's method of execution constitutes cruel and
unusual punishment. See, infra, issue XVII (incorporated by reference).
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5. Trial Counsel Were Ineffective for Failin to Object to the Double Counting, of Robbery as an Element of the Ca ital Offense and as an Aggravating Circumstance
148. Trial counsel failed to object to the double counting of robbery as both an element of the capital offense and as an aggravating circumstance used to sentence Mr. Jackson to death. See Gregg v. Georgia, 428 U.S. 153 (1976). Such error failed to narrow
57
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11
the class of cases eligible for the death penalty and exposed Mr . Jackson to two punishments as a result of being convicted of a single charge . Counsel's failure to object constitutes ineffective assistance of counsel . See, infra, issue XXIX (incorporated by reference). 6. Trial Counsel Failed to Ob'ect to the Death Sentence in this Case as Disproportionate,,- in Violation of Mr. Jackson's State and Federal Rights 149.. Mr. Jackson has been convicted of a capital crime and sentenced to death. Alabama appellate courts are required to independently review each sentence of death to determine whether it is a disproportionate penalty based on the crime , the defendant and in comparison to other crimes. See Pulley v. Harris, 465 U.S. 37 (1984). Based on the facts of this case , the death penalty is disproportionate , and trial counsel ' s failure to object to the imposition of the death penalty on this basis constitutes ineffective assistance of counsel. See infra, issue V (incorporated by reference). 7. The Cumulative Errors of Mr. Jackson ' s Trial Counsel Denied Mr. Jackson Effective Rep resentation at the Penal and Sentencin g Phases of His Capital Trial 150. The errors of counsel during the penalty and sentencing phase, as enunciated above, denied Mr. Jackson his right to a fair trial and accurate sentence determination. The failure of counsel to adequately investigate, prepare, and present evidence in support of a sentence of life without parole resulted in the sentencing authorities' override of the jury's life sentence, and resulted in Mr. Jackson's sentence of death. But for trial counsel's
58
ineffective representation during the penalty and sentencing phases , Mr. Jackson would be sentenced to life in prison without parole . See Kyles v . Whitley, 514 U. S. 419 (1995) (errors considered cumulatively); Derden v. McNeel, 978 F .2d 1453 ( 5th Cir. 1992) (same ). These errors constitute a violation of Mr . Jackson ' s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution , the Alabama Constitution and Alabama law. Wig,gi ns v. Smith, 123 S. Ct. 2527 (2003 ); Williams v. Tay lor, 120 S. Ct. 1495 (2000 ); Strickland v. Washin gton, 466 U.S . 668 (1984 ). This Court must reverse Mr. Jackson ' s sentence of death, and grant a new penalty and sentencing phase of Mr. Jackson's capital trial.
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II. JUROR MISCONDUCT DURING THE TRIAL DEPRIVED MR. JACKSON OF HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS, AND A RELIABLE SENTENCE DETERMINATION
151. Mr. Jackson's rights to a fair trial, due process and a reliable sentencing determination were violated by the j uror misconduct that occurred in this case . See Irwin v. Dowd , 366 U.S. 717, 722 (1961) ( criminal defendant guaranteed right to fair trial by panel of impartial , indifferent jurors). The fact that this is a capital case underscores the need for a trial with a fair and impartial jury. As the Supreme Court stated in Woodson v. North Carolina, 428 U.S. 280 ( 1976), "the penalty of death is qualitatively different from a sentence of imprisonment, however long.... Because of that qualitative difference , there is a
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corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case ." Id. at 305.
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152. Mr. Jackson ' s right to a fair and impartial jury was violated due to several jurors' failure to respond truthfully to multiple questions on voir dire. When a juror fails to truthfully answer questions on voir dire, the defendant is deprived of his right to wisely exercise peremptory strikes. Ex parteO'Leary, 438 So. 2d 1372 , 1373 (Ala. 1983); Ex pane Ledbetter, 404 So . 2d 731 , 733 (Ala. 1981); Tomlin v. State, 695 So . 2d 157 (Ala. Crim. App. 1996); see also United States v. Perkins, 748 F.2d 1519 , 1529 (111" Cir. 1984).
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153. When asked on voir dire, several jurors failed to disclose that they were familiar with the Smiley Court area, where the crime took place or the area where Mr. Jackson ' s mother lived. These jurors, including jurors David Davis, Ashley Dickey Walden, William Davis, Bernice Ethridge , James Garner, Monroe Clark and Coatest Carter , were all familiar with these areas prior to the trial, but did not disclose this during voir dire. In fact, Monroe Clark is a retired postal worker who, prior to trial, delivered mail to the Smiley Court area and to the area where the accomplices lived . He did not disclose this information when asked during voir dire. 154. Additionally, several jurors failed to disclose that they knew prosecutors, the 1 judge, or other individuals associated with Mr. Jackson's case. Jurors David Davis, William
Davis and Robert Hodgson all knew Judge Gordon but did not disclose this information on
voir dire . Also, juror Jan Burkes did not reveal to the court that her cousin is Judge Gillis. 2, Additionally , Robert Hodgson failed to disclose , when asked on voir dire , that he knewDi Montgomery County District Attorney , Ellen Brooks . Had these jurors disclosed this
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information, these jurors would likely have been removed from Mr. Jackson's jury venire. Additionally, juror Ashley Dickey Walden failed to disclose that she has several friends in
the Montgomery County Police Department when asked during voir dire.
155. One of the critical issues at Mr . Jackson ' s trial was who fired the shot that killed Mr. Moore . Several of the jurors failed to disclose that they owned guns in response to a question about this. Juror Robert Hodgson failed to report that he owned a gun at the
time of trial. " Additionally, juror Mary Jackson owns a .380 , but did not disclose this 7 information on voir dire. This information was critical to counsel ' s ability to select a fair and impartial jury to try Mr. Jackson ' s case, and without it, Mr . Jackson ' s rights were violated. 156. The jurors were instructed that their function during the guilt phase was only
to determine whether or not Mr. Jackson was guilty of capital murder. (R. 41.) Nonetheless,
Juror Barbara Endsley had made up her mind that Mr. Jackson should be sentenced to death at the close of the guilt phase, in violation of these instructions and Mr. Jackson's rights to a fair and impartial jury at sentencing. 157. Additionally , jurors William Davis and Mary Jackson did not reveal that they CA each have relatives or close friends in law enforcement . Juror Monroe Clark did not reveaa 1 Q
that he had heard about the case before trial . Jurors Coatest Carter, Jan Burkes and Jar ej \ t Garner did not reveal that they had previously sat on a jury . Jan Burkes and Robert Hodgson had been or had family members who had been prior victims of crime , but failed to disclos6 this information on voir dire . Finally, juror Mary Jackson also failed to reveal that she had \ \ ^.
61
been involved in prior civil lawsuits. 158. The failure of these jurors to respond to critical questions posed by defense counsel on voir dire violated Mr . Jackson ' s right to due process and a fair and impartial jury under the Fifth, Sixth, Eighth, and Fourteenth Amendments ofthe United States Constitution,
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the Alabama Constitution, and Alabama State law. See Tomlin v. State, 695 So. 2d 157, 169 (Ala. Crim. App. 1996); McDonough Power Equipment v. Greenwood, 464 U.S. 548, 556 (1984) (constitutional violation when jurors deliberately deceive court about matter which would constitute valid basis for challenge of juror). 159. Additionally, Mr. Jackson's right to a fair and impartial jury was violated by the jury's consideration of extraneous evidence during deliberations . A criminal defendant has the right to a fair and impartial jury. Jurors , in order to remain impartial, must be guarded in their deliberations from outside influences that may unlawfully affect the verdict. Ex arte Reed, 547 So. 2d 596, 597 (Ala. 1989); Miles v. State, 75 So. 2d 479, 672 (Ala. 1954). Federal and state law require that the verdict and sentence be based on the evidence developed at trial, and only upon such evidence. Turner v. Louisiana, 379 U.S. 466, 472 (1965); Remmer v. United States, 347 U.S. 227, 229 (1954); Ex arte Troha, 462 So. 2d 953, 954 (Ala. 1984). 160. Mr. Jackson's right to a fair and impartial trial was violated when one or more jurors, including juror JanBurkkees, did investigation outside the scope of the jury room and visited the crime scene and then shared these findings with other members of the jury,
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including Cathy Bullock, Catrina Buggs, David Davis, William Davis, Barbara Endsley, Bernice Ethridge, James Garner, Mary Jackson, Monroe Clark, Coatest Carter, and Ashley
Dickey Walden .
This crime scene investigation constituted unauthorized independent ee United States v . Martinez , 14 F.3d 543 (11th Cir.
investigation and was impermissible .
1994); Ex parte Potter, 661 So. 2d 260, 262 (Ala. 1994) (juror's visit to crime scene to view the width of a street in a criminally negligent homicide case might have affected the jury's
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verdict and warranted reversal of conviction).

161. Additionally, one or more jurors, including William Davis, David Davis, James Garner, Monroe Clark, performed outside experimentation by testing the bullets to discover if the type of gun in Mr. Jackson' s possession at the time of his arrest could have fired the bullet that killed the victim . These discoveries were then passed along to the jury members, including Cathy Bullock , Jan Burkes, Catrina Buggs, David Davis , William Davis, Barbara Endsley, Bernice Ethridge, James Garner, Mary Jackson, Monroe Clark, Coatest Carter, and Ashley Dickey Walden, tainting the jury's determination by exposing them to extraneous information. Ex parte Thomas, 666 So. 2d 855 (Ala. 1995) (juror putting on pants defendant had been wearing at the time of arrest, having another juror bind his hands and attempt to reach into his pockets to determine whether it was possible for handcuffed defendant to
\5
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remove cocaine from his pocket was reversible error); Reed v. State, 547 So. 2d 596 (Ala. 1988) (juror conducting home experiment was juror misconduct); Ex parte Lasle , 505 So. 2d 1263 (Ala. 1987) (several jurors conducting home experiment warranted reversal.); see
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also United States_v. Castello, 526 F. Supp. 847 (W.D. Tex. 1981) (court reversed where prejudice resulted when juror fired weapon into an object over weekend and informed other jurors of results).
162. "When it cannot be absolutely proven that extraneous information obtained through juror misconduct [] in no way affected the appellant, then a new trial is mandated." Williams v. State, 570 So.2d 884, 887 (Ala. Crim. App. 1990). The extraneous information obtained by these jurors most certainly influenced the jurors' guilt decision, and thus Mr.
1 1 1 1 1 I 1 1 1 1
Jackson is entitled to a new trial. 163. The conduct of the jurors in this case deprived Mr. Jackson of his right to be tried by an impartial jury, his right to have questions answered by prospective jurors to enable his counsel to exercise their peremptory strikes and to challenge jurors for cause, and his rights to due process, a fair trial, an impartial jury, equal protection, and a reliable sentencing protoected by the Fifth. Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama law. III. THE STATE WITHHELD FAVORABLE EVIDENCE FOR THE DEFENSE THUS VIOLATING MR. JACKSON'S FEDERAL AND STATE RIGHTS. 164. The State withheld exculpatory information and information favorable to the defense, despite defense counsel's request for such information. (C. 20, 33, 50.) The State's suppression of this material violated Mr. Jackson's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, the Alabama Constitution. and
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Alabama State law. 165. In Brady v. Maryland , 373 U.S. 83 (1963 ), the United States Supreme Court stated that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution ." Id. at 87. 166. In this case , the State failed to turn over to defense counsel the evidence of among other things - deals or agreements that had been entered into between the prosecution and the co-defendants who testified for the State . Evidence favorable to the defense includes evidence that would affect the jury ' s determination of the credibility ofthe witnesses. Gi lio v. United States, 405 U.S. 150 (1972 ). The mandate to turn over favorable evidence extends to both the determination of guilt or innocence and the sentencing proceeding . Brady, 373 U. S. 83, Ex parte Monk , 557 So. 2d 832 (Ala. 1989). The withholding of favorable evidence is grounds for the reversal of a death sentence . See Brady, 373 U. S. 83; Ex parte Womack, 541 So. 2d 47 (Ala. 1988).
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167. Additionally , the evidence introduced at trial and in the records that Mr. Jackson has received strongly indicates that additional discoverable material exists: (a) In Gerard Burdette's April 26, 1997 statement to Corporal D. Cunningham, he stated that he thought an individual named P.J. was responsible for the victim's death. Notably, Mr. Burdette did not reference P.J.'s real name nor did he mention the name Jay. However, while interviewing witness Lacrema Moore on April 26, 1997 , Detective A.J. Signore suggested that P.J.' s real name is Patrick Stinson. He also suggested that someone named Jay hung around with an individual named "Big Leon." None of the offense reports or statements provided by the District Attorney's office explain how Detective Signore
^'1 Psi = NOT c C )7L-
65
learned P .J.'s real name or obtained information referring to an individual named Jay . This suggests that some investigation occurred which was not disclosed to Mr. Jackson. (b) In her April 27, 1996 statement, Victoria Moss, one of the few witnesses at the scene of this incident, drew a map of the crime scene for Detective Signore. Mr. Jackson' s trial counsel was never provided with a copy of the map drawn by Ms. Moss for Detective Signore., QKt,)l (c) As indicated in a April 28 , 1997 offense report, after witnessing three AfricanAmerican men on his property, A.C. Porterfield contacted Deputy Smithy at the Montgomery County Sheriffs Department. Mr. Jackson's trial counsel never received any information from the Montgomery County Sheriffs Department relating to this complaint. Wes'? (d) In his statement to law enforcement officials , Antonio Barnes recalled returning with Shonelle Jackson , and an individual named Roderick Crawford (a.k.a. Fido), to Old Hayneville Road the day after the incident. Law enforcement officials interviewed many individuals named by the codefendants as people they came in contact with after the alleged incident. However, no offense reports relating to Roderick Crawford or interviews with Mr. Crawford were given to Mr. Jackson's trial counsel.y.'*-,,^. ( e) Members of law enforcement impounded both cars involved in this incident. These cars were examined by officials ; however, Mr. Jackson never received the results of any tests or examinations that were performed on the inside of these automobiles . It is unreasonable to believe that the State would not have conducted any tests of the interior of either car in order to ascertain whether or not the seats or upholstery contained evidence of blood , hair, or other fibers, especially because Shonelle Jackson was initially charged with shooting into the car . 1Jvk (f) Other gaps in the evidence indicate that the State has not provided all of the required evidence to Mr. Jackson . f"r. Jackson ' s co-defendants understood there to be a verbal agreement by which they would receive lesser sentences in exchange for their testimony against Shonelle Jackson . Nonetheless, statements to at least one co - defendant's trial judge and statements made by that court indicate that the co-defendants ' sentencing was deeply intertwined with the State ' s having already secured a conviction and sentence against Shonelle Jackson . Evidence of these deals between the co-defendants and the
66
prosecution were not disclosed to Mr . Jackson ' s trial counsel. 1> (g)
-,r,,QA ^r`' E4
1 1 1
Sometime after this crime occurred, law enforcement officials questioned Mr. Jackson ' s girlfriend at the time , Latrice Walker . Not only did they speak with her, they asked her to accompany them to her former residence . No evidence or information obtained during these meetings were provided to Mr. Jackson's trial counsel. cep
168. Due to the State ' s withholding of the above evidence , as well as other evidence material to Mr. Jackson' s case, defense counsel did not have the ability to fairly challenge the State ' s evidence at both the guilt and penalty phase of Mr. Jackson' s trial . The State's violation of Mr. Jackson' s right to due process necessitates a reversal of Mr . Jackson's conviction and death sentence. IV. THE IMPOSITION OF THE DEATH PENALTY ON ONE WHO IS MENTALLY RETARDED VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION. 169. Application of the death penalty to, and execution of, a mentally retarded person violates the Eighth and Fourteenth Amendments to the United States Constitution, the Alabama Constitution and Alabama law. Atkins v. Virrginia, 536 U.S. 304 (2002). In Atkins, the United States Supreme Court specifically held: We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty . Construing and applying the Eighth Amendment in the light of our " evolving standards of decency ," we therefore conclude that such punishment is excessive and that the Constitution "places a substantive restriction on the State ' s power to take the life" of a mentally retarded offender.
Atkins, 536 U.S. at 321. The Court emphasized that while mentally retarded persons
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"frequently know the different between right from wrong and are competent to stand trial," because of their impairments , " by definition they have diminished capacities to understand and process information , to communicate , to abstract from mistakes and learn from experience, to engage in logical reasoning , to control impulses, and to understand the reactions of others." Id.
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170. In determining whether an individual is mentally retarded the Court looked to the following as a generally accepted definition of mental retardation : "significantly subaverage intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social /interpersonal skills, use of community resources, self-direction, functional academic skills, work , leisure, health, and safety (Criterion B). The onset must occur before age 18 years. (Criterion C)." Atkins, 536 U.S. 304 n . 3 (citing American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 41 (0 Ed. 2000)). 171. As documented in records from the Department of Youth Services, Mr. Jackson was diagnosed with borderline intellectual functioning at the age of fifteen . School records - introduced into evidence at the suppression hearing held in 2001 - support this diagnosis.
Mr. Jackson failed both the first and third grade, and repeatedly made D's and F's throughout his school career, which ended in the ninth grade. (Supp. C.R. 60.) Additionally, the testimony at the suppression hearing revealed that Mr. Jackson was a "low achiever," (Supp.
68
R. 61, 64), who was susceptible to suggestion , (Supp. R. 62), respectful of his elders, (Supp. R. 67), and eager to please, (Supp . R. 67). All of these descriptions are consistent with an individual who is mentally retarded. 172. Moreover, records of the Alabama Department of Corrections in 1997
DO
*)QWI
establishes that Mr. Jackson received an Full Scale IQ score of 75 on a Beta II Test.
173. Additionally, investigation reveals that Mr. Jackson's mother, Marilyn Jackson, is mentally impaired and at some point in her youth resided at the Elks Memorial Center in Chisholm, Alabama, through the State Department of Mental Health and/or the State Department of Rehabilitation. A family history of mental retardation has been identified as a possible predisposing factor to mental retardation in a particular individual. See Mental Retardation: Definition, Classification, and Systems of Supports, American Association on
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Mental Retardation, 10` ed. 2002, at 123-41.
174. This evidence establishes that Mr. Jackson meets the definition of mental retardation identified by the Atkins Court and as such, his death sentence violates the Eighth and Fourteenth Amendments.
V. THE DEATH SENTENCE IN THIS CASE IS DISPROPORTIONATE, IN VIOLATION OF MR. JACKSON'S STATE AND FEDERAL RIGHTS
The American Association of Mental Retardation and the American Psychiatric Association both define subaverage intellectual functioning to include individuals with IQ's of between 70 and 75 and below. See American Association on Mental Retardation, Mental Retardation: Definition Classification and Systems of Supports, 58-59 (10" ed. 2002); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders Text Revision 41 (4" ed. 2001).
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175. Mr. Jackson has been convicted of a capital crime and sentenced to death. Alabama appellate courts are required to independently review each sentence of death to determine whether it is a disproportionate penalty based on the crime, the defendant and in comparison to other crimes . See Pulley v. Harris, 465 U . S. 37 (1984). Based on the facts of this case, the death penalty is disproportionate. 176. Mr. Jackson was just over 18 years old at the time of the crime. See Eddinas v. Oklahoma, 455 U.S. 104, 115 n.l 1 (1982)("crimes committed by youths may be just as
harmful to victims as those committed by older persons , but they deserve less punishment because adolescents may have less capacity to control their conduct and to thing in longrange terms than adults ."). Moreover, because none of the other codefendants received the death penalty, the death penalty in this case is disproportionate to others who participated in
the crime . The application of the death penalty must be narrowed to an ascertainable and distinct class of offenses. If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not. Spaziano v. Florida, 468 U.S. 447, 460 (1984). There were three other people involved in the crime for which Mr. Jackson was sentenced to die. All three of these codefendants were given the opportunity and did plead to lesser offenses than capital murder. Antonio Barnes, who was involved in the robbery and as the trial court acknowledged in its sentencing order,
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may actually be responsible for shooting and killing Mr. Moore, was sentenced to twenty-five
years. Eric Williams, another co-defendant who was also involved in the robbery, and as established by his own testimony, shot a gun at the crime scene, was sentenced to life with the possibility of parole. A third person, Christopher Rudolph, who was also involved in the crime was sentenced to twenty years.
177. There is no adequate explanation for such a disparity in sentencing that meets the Eighth Amendment's requirement that the death penalty be applied with some rationality and review ability. Luck of the draw does not and cannot explain why Mr. Jackson is facing death while three other people involved intricately involved in the crime are not. Spaziano v. Florida, 468 U.S. 447, 460 (1984). Mr. Jackson's sentence violates his rights to due
process, a fair trial and a proportionate sentence protected by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, the Alabama Constitution and Alabama law. VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF ROBBERY. 178. Mr. Jackson's jury convicted him of murder "during a robbery." The trial court precluded Mr. Jackson from presenting evidence which supported his theory ofthe case: that
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the motive for the killing was retaliation for a drug deal and that the killing did not occur "during a robbery." Although the State's evidence showed that the victim was killed and that the victim's car was stolen, the State's evidence also showed that the car was stolen only as
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11
an "afterthought" and that the robbery was thus a separate crime from the murder. 179. Under Alabama law, to obtain a conviction of capital murder, the state had the burden of proving that the murder in this case took place "during" a robbery. It is well established that a defendant is entitled to a charge on a lesser included offense if there is any reasonable theory from the evidence that would support the position. Fletcher v. State, 621 So. 2d 1010, 1018 (Ala. Crir. App. 1993) ( citing Exparte Oliver, 518 So. 2d 705, 706 (Ala. 1987)); see also Ex parte McCall, 594 So. 2d 628, 628 (Ala. 1991); Fulghum v. State, 277 So. 2d 886 (Ala. 1973); Starks v. State, 594 So. 2d 187, 195 (Ala. Crim. App. 1991); Connolly v. State, 500 So. 2d 57, 65 (Ala. Crim. App. 1985). 180. In the death penalty context, the United States Supreme Court has mandated that capital juries be given the option of convicting defendants of lesser included offenses
1 1 1 1 1 1
because the failure to do so removes the "third option" from the jury, and thus increases the risk of unwarranted convictions. Beck v. Alabama, 447 U.S. 625, 638 (1980). The Court of Criminal Appeals has reiterated the importance of lesser included offenses in capital cases in Connolly, 500 So. 2d at 66 (citing Spaziano v. Florida, 468 U.S. 447, 455 (1984)). The trial court in this case never gave the jury the third option of convicting Mr. Jackson of murder and robbery as separate crimes. 181. Alabama law is clear: a robbery committed as a "mere afterthought" and unrelated to the murder will not sustain a conviction under Alabama Code 13A-5-40(a)(2) for the capital offense of murder-robbery. Ex 12arte Johnson, 620 So. 2d 709, 712 (Ala. 1993)
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1
("under Alabama law, a robbery committed as a `mere afterthought' and unrelated to the murder will not sustain a conviction for the capital offense of robbery murder").
109. The trial court's failure to allow the jury the choice of the lesser included offense of robbery resulted in an improper conviction that violated Mr. Jackson's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, the Alabama Constitution and Alabama law. VII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING MR. JACKSON A CONTINUANCE TO SECURE A CRITICAL WITNESS. 182. Prior to trial, Mr. Jackson moved the trial court for a continuance to secure a
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material witness. The witness was material because, according to the state, he was the only eyewitness to the crime other than the defendant and co-defendants. (R. 19-20) Moreover, the witness gave a statement to the police which supported Mr. Jackson's defense in this case that the motive for the killing was retaliation for a bad drug deal and that the killing did not occur during a robbery. (C. 87-96) The court denied Mr. Jackson's motion for continuance, (C. 100), and in doing so, committed reversible error under Alabama law. Ex parte Saranthus, 501 So. 2d 1256 (Ala. 1986). Moreover, the trial court's failure to grant a continuance contravened the United States Supreme Court's warning that the swift administration of justice should never override a defendant's right to due process and a fair trial. See Powell v. Alabama, 287 U.S. 45, 59 (1932). 183. In this case the trial court abused its discretion in denying Mr. Jackson's
73
pretrial motion for a continuance to secure a material witness as all three Saranthus factors were met. The expected witness was unquestionably material and competent. The witness, Gerard Burdette, was an eyewitness to the shooting, (R. 19), and gave a statement to the police which supported Mr. Jackson's defense theory. Jackson made "a good-cause showing" as to the probability that Burdette would testify if the case were continued. See
t
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Pilley v. State, 789 So. 2d 870 (Ala. Crim. App. 1998) (overruled on other grounds) (moving party must make a "good-cause showing" of the three grounds that support the granting of a motion of continuance). 184. By denying Mr. Jackson's motion for a continuance, the trial court erroneously excluded potentially exculpatory evidence. Brady v. M land, 373 U.S. 83 (1963). Mr. Burdette's testimony would have supported a finding by the trial court that the victim was a participant in the crime, which would have constituted a statutory mitigating circumstance under Alabama law. ALA. CODE 13A-5-51 (3) (1975). 185. Mr. Jackson met all three of this Court's requirements for obtaining a continuance in order to secure a missing witness. The trial court's failure to grant a continuance deprived Mr. Jackson of his rights to due process, to present a defense, a fair trial, and a reliable sentence protected by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama law. VIII. THE TRIAL COURT IMPROPERLY LEFT THE COURTROOM WHILE THE JURY WATCHED MR. JACKSON'S VIDEOTAPED STATEMENT.
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186. "There can be no court without a judge, and his presence, as the presiding genius of the trial , is as essential at one time as another." Smith v. State , 158 So . 808, 811 (Ala. 1935) (citation and quotation omitted). Mr. Jackson had a fundamental right to have the trial judge be present during his capital trial. See Heflin v. United States, 125 F. 2d 700
(5`h Cir. 1942) ("Neither the stage of the proceeding, the length of or reason for the departure, nor the judge's proximity to the courtroom has been viewed as a factor which mitigates the harm created by the judge's absence.") Yet, during Mr. Jackson's capital trial, the judge left the courtroom while the jury watched a videotaped statement of Mr. Jackson. (R. 524-25.) 187. The trial judge, essential to the proceedings, relinquished judicial control and
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refused to "see that the trial proceed[ed] in an orderly manner and in accordance with law" solely because he had seen the evidence before. Smith,158 So. at 8 10-11. This, in and of itself, constitutes reversible error. See Brown v. State, 1538 So. 2d 833, 836 (Fla. 1989) (holding that the absence of the judge when a jury communication is received and answered is reversible error despite appellant's failure to ol?ject).Moreover, the court forced Mr. Jackson to rely upon a court reporter to ensure that the trial proceeded in accordance with law. Smith, 158 So. at 811. The trial judge's absence during Mr. Jackson's capital trial violated Mr. Jackson's right to due process, a fair trial and reliable sentencing protected by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution and Alabama law.
1 1
IX. THE STATE IMPROPERLY OBTAINED MR. JACKSON'S CONVICTION BY UNCORROBORATED ACCOMPLICE
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TESTIMONY. 188. The state ' s robbery case rested on the testimony of three accomplices, individuals who themselves were indicted for the same crime of capital murder, individuals who all hoped to gain something by testifying, and individuals who were housed together in the Montgomery County Jail prior to the trial. This testimony with respect to robbery
remained wholly uncorroborated by any other evidence. 189. Under Alabama law, such uncorroborated testimony is insufficient to convict Mr. Jackson of capital murder . See Ala. Code 12-21-222 (1975). Because no question exists as to whether these individuals were accomplices in the alleged robbery of Mr. Moore ' s car, Alabama law requires that their testimony be corroborated . See Leitner v. State,
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672 So. 2d 1371 (Ala. Crim. App. 1995) (state must present other evidence tending to connect defendant with offense to allow consideration of accomplice ' s testimony). 190. Under Alabama law, one accomplice cannot corroborate another accomplice's testimony to support a felony conviction. Knowles v. _State, 204 So. 2d 506 (Ala. 1967). Accordingly, the testimony of Antonio Barnes, Eric Williams and Christopher Rudolph cannot be used to implicate Mr. Jackson in the crime , instead corroborating evidence must be provided by other sources. 191. Moreover, the trial court failed to instruct the jury about the accomplice corroboration requirement. This was a question of fact for the jury, and without such instructions, the jury could not have reliably determined whether the accomplice testimony
76
of these witnesses was in fact corroborated by outside evidence . See Gurley v. State , 639 So. 2d 557, 561 (Ala. Crim. App. 1993); In re Winship, 397 U.S. 358 (1970) ("Proof beyond reasonable doubt is required to establish guilt of criminal charge .") Mr. Jackson ' s conviction and death sentence were thus achieved in violation of his rights to due process, a fair trial and a reliable sentencing protected by the Fifth , Sixth, Eighth and Fourteenth Amendments to the United States Constitution, the Alabama Constitution and Alabama law. X. THE STATE ' S USE OF ITS PEREMPTORY CHALLENGES DISCRIMINATED ON THE BASIS OF RACE AND GENDER.
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192. This Court must remand Mr. Jackson 's case to the trial court for a hearing to determine whether the State discriminated on the basis of gender and race in its use of peremptory strikes. At Mr. Jackson's trial, there was a prima facie case of discrimination in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and J .E.B. v. Alabama, 511 U.S. 127 (1994). Mr. Jackson is black. There were 42 prospective jurors on Mr. Jackson's jury venire, of which 25 were female and 19 were black . The prosecutor had 15 peremptory strikes, of which he used 8 to remove women and 8 to remove blacks. In overruling defense counsel's timely objection under Batson and J.E.B. (by reference to Batson 's progeny), the trial court committed reversible error . (R. 156.) 193. In Ex parte Thomas, 659 So. 2d 3 (Ala. 1994), the Alabama Supreme Court held that a prima facie case of discrimination can be made by showing that the prosecution used a large number of its strikes to remove blacks, notwithstanding the fact that a larger percentage of blacks sat on the jury than sat on the venire. Id. at 8; see also Alexander v.
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State, 673 So. 2d 791 (Ala. Crim. App. 1995) (principles of Batson and its progeny extended to gender discrimination). In addition, there was a lack of meaningful voir dire and the district attorney for Montgomery County has a history of racial discrimination in jury a selection. See, e.g., Ex parte Yelder, 630 So. 2d 107, 109 (Ala. 1992); Ex pane Bird, 594 So. 2d 676, 681 (Ala. 1991); Parker v. State, 568 So. 2d 335 (Ala. Crim. App. 1990); Powell v. State, 548 So. 2d 590 (Ala. Crim. App. 1988); Williams v. State, 548 So. 2d 501 (Ala. Cr. App. 1988); Acres v. State, 548 So. 2d 459 (Ala. Crim. App. 1987).
194. The trial court erred by not requiring the state to articulate its reasons for striking women and blacks from Mr. Jackson's jury and thus violated his rights to due process, a fair trial, equal protection and a reliable sentencing protected by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama
Constitution and Alabama law. XI. THE TRIAL COURT'S REASONABLE DOUBT INSTRUCTION WAS UNCONSTITUTIONAL. 195. In Cage v. Louisiana, 498 U.S. 39 (1990), the United States Supreme Court reversed a conviction because the trial court gave an improper reasonable doubt instruction.
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The trial court in Cage erroneously defined "reasonable doubt" as "an actual substantial doubt" and "such doubt as would give rise to a grave uncertainty," and indicated that in order to convict the jury need not find guilt to "an absolute or mathematical certainty," but only to a "moral certainty." Id. at 364. Since Cage, courts must reverse convictions "where there is a reasonable likelihood that the jury understood the instruction to allow conviction based on
78
proof insufficient to meet the Winship standard ." Victor v. Nebraska, 511 U. S. 1 , 6 (1994).
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196. In Mr . Jackson ' s case, the court instructed that "proof beyond a reasonable doubt is proof of such a convincing character that you will be willing to rely and act upon it without hesitation in the most important ofyour personal affairs ." (R. 85.) Similar to the trial court in Ca this court also told the jury that the State need not prove Mr. Jackson ' s guilt
"to a mathematical certiant[y]." (R. 85 .) These instructions, in addition to the other instructions, lowered the burden of proof. 197. The problem was exacerbated by the court ' s instruction that "a reasonable doubt is a doubt for which you can give a reason ." (R. 84.) Such an instruction improperly suggests that even if the state 's proof had not persuaded a juror , the resulting doubt would not be regarded as "reasonable " unless the juror were able to assign a reason to it. 198. In its entirety, the trial court's reasonable doubt instruction created a reasonable likelihood that the jury would convict on proof insufficient to meet the Winship standard. It therefore violated Mr . Jackson ' s right to due process, a fair trial and a reliable sentencing determination protected by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution , the Alabama Constitution , and Alabama state law. XII. THE TRIAL COURT IMPROPERLY ADMITTED PHOTOGRAPHS THAT SERVED ONLY TO INFLAME AND PREJUDICE THE JURY. 199. Photographs or videotapes that "serve little or no purpose except to arouse the passion, prejudice, or sympathy ofthejury" should be excluded from evidence. Qtt v. Smith, 413 So. 2d 1129, 1132 (Ala. 1982). The introduction of cumulative and prejudicial
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photographs is not only a violation of state law, but also infringes on Mr. Jackson's rights to due process and a fair trial. Futch v. Dugger, 874 F.2d 1483, 1487 (11th Cir. 1989); Osborne v. Wainwright, 720 F.2d 1237, 1238 (11th Cir. 1983); Dickson v. Wainwright, 683 F.2d 348, 350 (11th Cir. 1982). At Mr. Jackson' s trial, the state introduced pictures of the victim after he was killed. (R. 191.) Showing the jury these slides and pictures seriously prejudiced Mr.
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Jackson. 200. In admitting such evidence, the trial court violated Mr. Jackson's rights to due process, a fair trial and a reliable sentencing guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama state law. XIII. THE TRIAL COURT IMPROPERLY GRANTED THE STATE'S CHALLENGES OF JURORS FOR CAUSE 201. In Witherspoon v. Illinois, 391 U.S. 510 (1968), the United States Supreme Court held that it was unconstitutional to exclude venire members for cause when they expressed general objections to the death penalty. Id. at 522. The standard for determining whether a prospective juror may be excluded for cause because of his or her views on capital punishment is whether the juror's views would "prevent or substantially impair" the performance of his or her duties as a juror in accordance with instructions and his or her oath. Wainwright v. Witt 469 U.S. 412, 424 (1985); see also Brownlee v. State, 545 So. 2d 151, 155-56 (Ala. Crim. App. 1988). At Mr. Jackson's trial, jurors that were struck indicated they could follow the law even though they had opinions about the death penalty. Because they
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could follow the law, the trial court erred in granting the state's challenge for cause as to these jurors . Wainwri ght v. Witt, 469 U.S. 412, 424 ( 1985).
202. Moreover, the use of strikes for cause or the use of peremptory strikes to exclude jurors with reservations about the death penalty is unconstitutional because jurors with reservations about the death penalty possess a commonality that makes them a
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cognizable group . Although in L o ckhart v. McCree , 476 U.S. 162 (1986 ), the Court did not find that such jurors are a cognizable group under the Sixth Amendment , the Court has embraced a broader definition of cognizability under the Equal Protection Clause of the Fourteenth Amendment in the Batson context . See, ems, Powers v. Ohio, 499 U.S. 400 (1991); J.E.B. v. Alabama, 511 U.S. 127 (1994). 203. The exclusion of these j urors violated their rights to equal protection as well as Mr. Jackson's rights to due process , equal protection , a jury comprised of a fair cross section of the community , an impartial jury, a fair trial and a reliable sentencing guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution,
the Alabama Constitution , and Alabama law. XIV. THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE THAT DID NOT HAVE A PROPER CHAIN OF CUSTODY. 204. The trial court erred when it admitted evidence without establishing a proper chain of custody. As this Court is well aware , evidence is not admissible at trial when there is a "missing link" in the chain of people who handle an evidentiary item. Exparte Holton, 590 So. 2d 918 (Ala. 1991); Russaw v. State, 624 So. 2d 234 (Ala. Crim. App. 1993); see 81
also Rochin v. California, 342 U.S. 165 (1952) ("Under the Due Process Clause of the Fourteenth Amendment , a state's convictions cannot be brought about by methods that offend a sense of justice.") In this case, the state attempted to introduce evidence of a bullet that allegedly relevant to the crime . However, the state did not establish a proper chain of
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custody of the bullet , thus rendering the evidence inadmissible at trial . In admitting this evidence, the trial court committed reversible error and violated Mr. Jackson ' s rights to due process, a fair trial and a reliable sentencing protected by the Fifth , Sixth, Eighth and Fourteenth Amendments to the United States Constitution, the Alabama Constitution and Alabama law. Ex parte Cook, 624 So. 2d 511 (Ala. 1993); Laws v. State, 562 So. 2d 305 (Ala. Crim. App. 1990). XV. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT MR. JACKSON OF CAPITAL MURDER. 205. Due process requires that no person shall lose his liberty unless the state has proven every element of the criminal charge beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1974); see also Montana v. Egeihoff, 518 U.S. 37, 46 (1996) ("the Due Process Clause requires the government to prove the existence of every element of the offense beyond a reasonable doubt."); Beard v . State, 612 So. 2d 1335, 1345 (Ala. Crim.
App. 1992) (state must prove every element beyond reasonable doubt). The state's failure to meet its burden of proof requires reversal . See Ex parte Edwards, 452 So. 2d 503 (Ala. 1983) (capital case reversed where evidence insufficient to establish malice aforethought to sustain conviction of murder of police officer); Banks v. State, 575 So. 2d 1244 (Ala. Crim.
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App. 1991) (state's failure to sufficiently prove one element of charged offenses requires reversal); see also Ex2arte Woodall, 730 So. 2d 652 (Ala. 1998) ("[the role of the appellate courts] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision by the jury"). 206. In order to sustain a conviction for robbery-murder, both the intentional killing and the robbery must be proven. See Coleman v. Jones, 909 F.2d 447 (11 `" Cir. 1990), cert.
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denied, 499 U.S. 911 (1991). In this case, the state failed to prove the element of robbery. The state's failure to satisfy its burden of proof to establish that Mr. Jackson was guilty of all of the elements of the capital crime of murder during a robbery violated his rights to due process, a fair trial and a reliable sentencing under the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, the Alabama Constitution and Alabama law. XVI. DOUBLE COUNTING ROBBERY AS AN ELEMENT OF THE CAPITAL OFFENSE AND AS AN AGGRAVATING CIRCUMSTANCE WAS IMPROPER. 207. An aggravating circumstance the state presented at the penalty-phase of the trial was that Mr. Jackson been found guilty of committing an intentional murder during the
course of a robbery. This conviction rendered him eligible for the death penalty under Alabama law. The trial court gave weight to this conviction in sentencing Mr. Jackson to death. The "double counting" of Mr. Jackson's robbery conviction in this case was improper and unconstitutional.
208. The Alabama Supreme Court has held that double counting does not offend the
83
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state Constitution generally. See Ex 12arte Kennedy, 472 So. 2d 1106, 1108 (Ala. 1985). In this case, however, the use of robbery both as an elevator in the guilt-phase and as an aggravator in the penalty-phase failed to narrow the class of cases eligible for the death penalty, resulting in the arbitrary imposition of the death penalty. Se e.g., Gregg v.
Georgia, 428 U.S. 153, 197 (1976); Zant v. Stephens, 462 U.S. 862, 877 (1983). 209. Further, double counting robbery subjected Mr. Jackson to two punishments as a result of being convicted of a single criminal charge . See North Carolina X. Pearce, 395 U.S. 711, 717 (1969); Meyer v. State, 575 So. 2d 1212 (Ala. Crim. App. 1990). The double
counting of robbery both as an elevator in the guilt-phase and as an aggravator in the penaltyphase violated Mr. Jackson's rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and state law. XVII. ALABAMA'S MANNER OF EXECUTION CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT 210. The Eighth Amendment requires states to take all feasible measures to minimize the risk of cruelty in administering capital punishment. See Zant v. Stephens, 462 U. S. 862 (1983). Electrocutions in Alabama are characterized by the use of faulty equipment, unqualified personnel, and inadequate procedures which result in body charring and electrical burns to the backs, thighs, arms, and abdomens of condemned prisoners. If Mr. Jackson is executed in Alabama's electric chair, his death likely will be slow and excruciating, his body burned and mutilated. The Eighth Amendment cannot be construed to uphold the kind of error that has attended electrocutions in Alabama.
84
211. Mr. Jackson also contends that the undeveloped procedures for administering lethal injection, and the cruelty of lethal injection violate the Eighth Amendment . Evolving standards of decency have rendered Alabama ' s method of execution unconstitutional. Mr. Jackson ' s death sentence constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
XVIII. THE CUMULATIVE EFFECT OF ALL OF THE ABOVE ERRORS ENTITLES MR. JACKSON TO RELIEF
212. The cumulative effect of the errors of state and federal law alleged in this Rule 32 petition violate Mr . Jackson ' s rights to due process and a fair trial protected by the Fourth, Fifth, Sixth, Eighth , and Fourteenth Amendments to the United States Constitution, the
1
1 1 1
Alabama Constitution, and Alabama law. PRAYER FOR RELIEF For all the above stated reasons and other such reasons as may be made upon amendment of this petition and a full evidentiary hearing, Petitioner Shonelle Jackson respectfully asks this Honorable Court to grant him the following relief:
(a) conduct a full evidentiary hearing at which proof may be offered concerning the allegations in this petition;
(b) provide Petitioner, who is indigent, with funds sufficient to present witnesses, experts , and other evidence in support of the allegations contained in this
1 I
petition;
85
(c) issue an order relieving petitioner of his unconstitutionally obtained conviction and death sentence following a full and complete hearing; and
1 I 1 1
(d) grant Petitioner any such additional relief as is just, equitable , and proper under federal and state law. Respectfully submitted,
A. Stevenson
ela L. Setzer
Equal Justice Initiative of Alabama 122 Commerce Street Montgomery, AL 3 6104 334-269-1803 Counselfor Mr. Jackson
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Dated : March 31, 2004

ATTORNEY ' S VERIFICATION I swear under penalty of perjury that, upon in true and correct. Signed on March 31, 2004. er Counselfor Mr. Jackson nnation aj belief, the foregoing is
SWORN AND SUBSCRIBED before me this the '3 ^ day of /14 L 1-+ , 2004. '^ r A L / 1Notary Public
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My cominissi
pires : ZOO 86
I hereby certify that on March 31, 2004, I served a copy of the attached petition by first class mail, postage prepaid and properly addressed to: Jeremy McIntire Office of the Attorney General Alabama State House 11 South Union Street Montgomery, AL 3 613 0
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1 1
87
NO.
IN THE SUPREME COURT OF ALABAMA
EX PARTE SHONELLE ANDRE JACKSON (In re : Ex parte State of Alabama
FILED
APR - 1 2005
CLERK ALA COURT CRIMINAL APPEALS
(In re: Shonelle Andre Jackson, Petitioner v.
State of Alabama, Respondent))

Alabama Court of Criminal Appeals No . CR-04-0096
Montgomery County Circuit Court No. CC - 97-2300.60
PETITIONER ' S APPENDIX TO PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OF CRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY, CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT VOLUME II OF III
Bryan A . Stevenson Angela L. Setzer
1 I
April 1, 2005

122 Commerce Street Montgomery , AL 36104 Ph: (334) 269-1803 Fax: (334 ) 269-1806
Counsel for Shonelle Jackson
EX PARTE SHONELLE ANDRE JACKSON (In re : (In re : Ex parte State of Alabama Shonelle Andre Jackson, Petitioner
v.
State of Alabama, Respondent))
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Alabama Court of Criminal Appeals No. CR-04-0096 Montgomery County Circuit Court No . CC-97-2300.60
PETITIONER'S APPENDIX TO PETITION FOR WRIT OF MANDAMUS TO THE ALABAMA COURT OF CRIMINAL APPEALS AND THE HONORABLE TRACY S. MCCOOEY, CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT VOLUME II OF III
Bryan A. Stevenson Angola L. Setzer
I
April 1, 2005
Equal Justice Initiative of Alabama 122 commerce Street Montgomery, AL 36104 Ph: (334) 269-1803 Fax: (334) 269-1806 Counsel for Shonelle Jackson
1 1 1
INDEX TO APPENDIX OF EXHIBITS
TAB 1
Opinion of the Alabama Court of Criminal Appeals dated March 18, 2005
Order of Honorable Judge Tracy S. McCooey dated March 23, 2005 State of Alabama's Petition for Writ of Mandamus to Honorable Tracy S. McCooey, Circuit Judge, Fifteenth Judicial Circuit; Volumes I, II of Exhibits Exhibit A Shonelle Jackson's Petition Amended Rule 32
TAB 2
TAB 3
Exhibit B
State 's Answer to Shonelle Jackson's Amended Rule 32 Petition State's Motion to Dismiss Procedurally Barred Claims
State's Motion to Dismiss Insufficiently Plead Claims State's Motion to Dismiss Claims Pursuant to Rule 32.7(d) Mr. Jackson 's Motion for Discovery of Institutional Records , Files, and Information Necessary to a Fair Rule 32 Evidentiary Hearing Mr. Jackson's Motion for Discovery of Prosecution Files, Records and Information Necessary to a Fair Rule 32 Evidentiary Hearing State's Response to Mr. Jackson's Motion for Discovery of Institutional Records, Files, and Information Necessary to a Fair Rule 32 Evidentiary Hearing
Exhibit C
Exhibi t D
Exhibit E
Exhibit F
Exhibi t G
Exhibit H
1 f
Exhibit I State's Response to Mr. Jackson's Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing Exhibit J Mr. Jackson's Response to the State's Opposition to his Discovery Requests Exhibit K Transcript of the Hearing Held on October 13 , 2004 i n the Montgomery County Circuit Court on the Parties' Motions
1
TAB 4
Exhibit L Circuit Court's Order of October 13, 2004 Shonelle Jackson's Answer in Opposition to the State of Alabama's Petition for Writ of Mandamus to Honorable Tracy S. McCooey, Circuit Judge, Fifteenth Judicial Circuit Exhibit A Petitioner's Response Motions to Dismiss TAB 5 to the State's
1 1 1
Brief of Amicus Curiae of the Alabama Department to Human Resources
TAB 6
Petitioner's Objection to this Court's Signing of the State's Proposed Orders Without Modification
TAB 7
I
2
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IN THE CIRCUIT COURT OF MONTGOMERY COUNTY ,
ALABAMA
SHONELLE ANDRE JACKSON, Petitioner, v. ) CC-1997-2300.60
STATE OF ALABAMA, Respondent.

STATE OF ALABAMA ' S ANSWER TO JACKSON ' S AMENDED PETITION FOR RELIEF FROM CONVICTION AND DEATH SENTENCE
Comes now Respondent, the State of Alabama, and files an answer to Jackson's amended petition for relief from conviction and death sentence. The State
1 1 1
answers the petition for relief from conviction and sentence of death, filed pursuant to Rule 32 of the Alabama Rules of Criminal Procedure, as follows:
RESPONSE TO PROCEDURAL HISTORY
1. In the unnumbered introductory paragraph to his Rule 32 petition, Jackson claims that his conviction and death sentence were unconstitutionally obtained.
1 1 I 1
That claim is denied. It is admitted that Shonelle Andre Jackson is now incarcerated at Holman State Prison in Atmore, Alabama.
2. Paragraph one of the petition is admitted. Jackson was indicted on two counts of capital murder,
in violation of Alabama Code Sections 13A-5-40(a)(2) and 13A-5-40(a) (17), on one count of theft, in
1 1 1 1 1 1 I
violation of Alabama Code Section 13A-8-3, and on one count of receiving stolen property, in violation of Alabama Code Section 13A-8-17. (CR. 7-11)
3. Paragraph two of the petition is admitted.

4. Paragraph three of the petition is admitted to the extent that the jury's recommendation of life without parole was not a "verdict" but was a recommendation. In addition, this court found the existence of the following aggravating circumstances: the 13A-5-49(4), Code of Alabama (1975) aggravating circumstance that the capital offense was committed while Jackson was engaged in the commission of, or an
accomplice in the commission of, a robbery; and the 13A-5--49(1), Code of Alabama (1975) aggravating circumstance that the capital offense was committed by one under a sentence of imprisonment. (CR. 174-175) This court also found the following mitigating circumstance: the 13A-5-51(7), Code of Alabama (1975) mitigating circumstance that Jackson was 18 years old at the time the offense was committed. (CR. 177-178)
1 I
This Court also considered numerous non-statutory mitigating circumstances. (CR. 178-179)
5. Paragraphs 4-5 of the petition are admitted. 6. Paragraph 6 is admitted. A hearing was
1 1 1 1 1 1
conducted on October 24, 2001, as ordered by the Supreme Court of Alabama. This Court subsequently
determined, after examining the totality of the circumstances surrounding Jackson's statement, that Jackson's statement was voluntary and therefore properly admissible. (Supp. R. 8-12) On return from remand, the Supreme Court of Alabama affirmed Jackson's conviction and death sentence and denied his application for rehearing. Ex parte Jackson, 836 So. 2d 979 (Ala. 2002). In addition, the Alabama Court of Criminal Appeals issued the Certificate of Judgment in this case on May 31, 2002.. 7. Paragraphs 7-8 of the petition are admitted.
RESPONSE TO GROUNDS FOR RELIEF 1. THE CLAIM THAT COUNSEL WAS INEFFECTIVE AT BOTH THE GUILT AND PENALTY PHASES OF JACKSON ' S TRIAL
8. Paragraphs 9-11 fail to state an independent claim for relief in accordance with Alabama Rule of 3
Criminal Procedure 32.7(d) because they do not allege specific acts or omissions of counsel and, instead, are
merely introductory paragraphs for the particular allegations within Ground I of the petition. As such, these paragraphs are due to.be dismissed pursuant to Rule 32.7(d). See Thomas v. State, 766 So. 2d 860, 892 (Ala. Crim. App. 1998) ("... a review of a claim of ineffective counsel is not triggered until the
petitioner has identified specific acts or omissions."). Alternatively, any arguments contained in paragraphs 9-11 are denied. The ineffective assistance of counsel claims are answered as follows:
The Claim That Jackson Was Denied The Effective Assistance Of Counsel In Part Because Of The Insufficient Funds Provided For Court - Appointed Attorneys In Capital Cases'
9. This claim is contained in paragraphs 12-16 and is answered as follows:
a) This claim is due to be dismissed because it
is procedurally barred as it could have been but was not raised at trial or on direct appeal. Ala. R. Crim. P. 32.2(a)(3) and (5). As noted by Alabama Court of
(This claim is unnumbered in Jackson's amended Rule 32 petition. 4
1 1
Criminal Appeals in Bui v. State, 717 So. 2d 6, 16 n. 9
(Ala. Crim. App. 1997):

[T]here is a sound legal basis for applying the procedural bars found in Rule 32.2(a) to the appellant's claim. Most of the usual factors disinclining an attorney from alleging his or her own ineffectiveness are not present in a claim of this nature, because an attorney claiming that he or she was deprived of funds sufficient to mount an adequate defense is not necessarily admitting to having made poor strategic choices or unprofessional mistakes, but is instead asserting that despite the best intentions to act in the client's behalf, the attorney's performance has been improperly hampered by forces beyond the attorney's control. It might be argued, then, that the appellant's attorneys at trial and on appeal had little disincentive, and ample opportunity, to present a claim that the compensation scheme in 15-12-21(d) prevented them from rendering legally effective assistance, if they believed this to be the case. Accordingly, the claim that Alabama's compensatory
scheme caused counsel to render ineffective assistance should be deemed procedurally barred because Jackson's counsel could have raised this issue both at trial and on appeal. b) This claim is due to be dismissed for failing to meet the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P. Jackson does not fully disclose the
1 1
factual basis of his claim that he was denied effective assistance of counsel. Jackson has not made a full disclosure of the facts upon which he is relying to entitle himself to relief. His pleading does not include any facts which, if presented by trial counsel,
would have resulted in a different finding by the trial

court. Under Rule 32.7(d), Ala.R.Crim.P., this claim of ineffective assistance of counsel that is not sufficiently pleaded is due to be dismissed. ("If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim,
or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition"). c) Moreover, this claim should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State, 836 So. 2d 915, 959-960 (Ala. Crim. App.
1999). Jackson cannot prevail on a claim of ineffective assistance of counsel when the Court of
Criminal Appeals ruled that the ground for the claim was without merit. See Dobyne v. State, 805 So. 2d
733, 744 (Ala. Crim. App. 2000)("A finding of no manifest injustice under the `plain error' standard on direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of
counsel provided in Strickland v. Washington"); Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for not raising a claim this court has already found to be without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without merit and, as a result, this claim should be dismissed as a matter of law. d) Alternatively, this claim is denied.
1 I 1 I
A. The Claim That Jackson Was Denied Effective Assistance Of Counsel During The Guilt Phase Of His Trial.
10. This claim is contained in paragraphs 17-71 and contains numerous sub-claims. These claims are answered as follows:
11. Paragraph 17 fails to state an independent
claim. for relief in accordance with Alabama Rule of
Criminal Procedure 32.7(d) because it does not allege specific acts or omissions of counsel and, instead, is merely an introductory paragraph for the particular allegations within Ground I.A of the petition,. As such, this paragraph is due to be dismissed pursuant to Rule
1 I
32.7(d). See Thomas v. State, 766 So. 2d 860, 892 (Ala. Crim. App. 1998) ("... a review of a claim of ineffective counsel is not triggered until the petitioner has identified specific acts or omissions"). 1. The Claim That Counsel Was Ineffective For Failing To Adequately Investigate The State's Capital Murder Charge Against Jackson. 12. This claim is contained in paragraphs 18-27 and contains separate sub-claims. Specifically, Jackson alleges that trial counsel was ineffective for
failing to adequately meet with or interview himself, his family, or other witnesses. Jackson argues that had trial counsel adequately met with and interviewed those individuals, trial counsel would have been able to present evidence that the crime was the result of a "drug deal gone bad". Jackson asserts that had trial counsel presented such evidence, the trial court would not have granted the State's motion in limine to 8
prevent the defense from introducing evidence that the victim was a drug dealer.2 These claims are answered as follows:
a) The claim that trial counsel was ineffective for failing to adequately meet with Jackson and establish a relationship of trust.
a) Based on the trial record, this claim is due to be summarily dismissed pursuant Ala. R. Crim. P. 32.7(d) because no material issue of law or fact exists which would entitle Jackson to relief and no purpose
1 1
2 This claim is due to be dismissed as insufficiently plead to the extent that Jackson is alleging that trial counsel's failure to investigate would have resulted in the discovery of evidence or testimony separate and distinct from evidence concerning a "drug deal gone bad". In Thomas v. State, 766 So. 2d 860, 892 (Ala. Crim. App. 1998), the Alabama Court of Criminal Appeals, citing Nelson v. Hargett, 989 F. 2d 847, 850 (5th Cir. 1993), held that "claims of failure to investigate must show with specificity what information would have been obtained with investigation, and whether, assuming the evidence is admissible, its admission would have produced a different result." Jackson fails to specify to the Court any information or evidence that would have been discovered or why such evidence would have been so compelling that it might have had an impact on the guilt-phase or penalty phase of trial. As such, Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
would be served by any further proceedings. In his amended Rule 32 petition, Jackson argues that had trial counsel not failed to investigate, they would have found evidence indicating that the murder was the
1 1 1
result of a drug deal and not a robbery. Jackson argues that had counsel presented such evidence, the trial court would have denied the State's motion limine. However, the record demonstrates that in in
objecting to the State's motion in limine, counsel did present the same evidence that Jackson asserts should have been presented in response to the State's motion in limine. Prior to trial, Jackson's counsel argued
that the victim and defendant were drug dealers and the murder was the result of a drug deal and not a robbery. Trial counsel further explained to the trial court that there was evidence that the victim was also known to sell fake crack. (R. 26-31, 37-38)
Jackson has not presented any new facts that were not already heard and rejected by this Court in granting the State's motion in limine. As such, this
claim is due to be summarily dismissed pursuant Ala. R.
10
r
1
Crim. P. 32.7(d) because no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings.
b) Alternatively, this claim is denied.

b) The claim that trial counsel was ineffective for failing to adequately meet with Jackson ' s family.
1 1 1 1 I
a) Based on the trial record, this claim is due

to be summarily dismissed pursuant to Ala. R. Crim. P. 32.7(d) because no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. In his amended Rule 32 petition, Jackson argues that had trial counsel not failed to investigate, they would have found evidence indicating that the murder was the result of a drug deal and not a robbery. Jackson argues that had counsel presented such evidence, the trial court would have denied the State's motion in limine. However, the record demonstrates that in
objecting to the State's motion in limine, counsel did present the same evidence that Jackson now asserts should have been presented in response to the State's
motion in limine.
In response to the State's motion
11
in limine,
Jackson's counsel argued that the victim and
defendant were drug dealers and the murder was the result of a drug deal and not a robbery. Trial counsel further explained to the trial court that there was evidence that the victim was also known to sell fake crack. (R. 26-31, 37-38) Jackson has not presented any new facts that were
not already heard and rejected by this Court in granting the State's motion in limine. As such, this claim is due to be summarily dismissed pursuant Ala. R. Crim. P. 32.7(d) because no material issue of law or
1 1 1 1 1
fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. b) Alternatively, this claim is denied. c) The claim that trial counsel was ineffective for failing to adequately meet with or interview the State' s witnesses or other individuals whose testimony would have undermined the State' s case. a) Based on the trial record, this claim is due to be summarily dismissed pursuant to Ala. R. Crim. P. 32.7(d) because no material issue of law or fact exists which would entitle. Jackson to relief and no purpose
would be served by any further proceedings. In his
12
1 1
amended Rule 32 petition, Jackson argues that had trial counsel not failed to investigate, they would have found evidence indicating that the murder was the result of a drug deal and not a robbery. Jackson argues that had counsel presented such evidence, the trial court would have denied the State's motion in
t
1
limine.
However, the record demonstrates that in
objecting to the State's motion in limine, counsel did present the same evidence that Jackson asserts should have been presented in response to the State's motion in limine. Prior to trial, Jackson's counsel argued
1 1 1 1 1 1
that the victim and defendant were drug dealers and the murder was the result of a drug deal and not a robbery. Trial counsel further explained to the trial court that there was evidence that the victim was also known to sell fake crack. (R. 26-31, 37-38) Jackson has not presented any new facts that were not already heard and rejected by this Court in granting the State's motion in limine. As such, this
claim is due to be summarily dismissed pursuant Ala. R. Crim. P. 32.7(d) because no material issue of law or
13
fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. b) Alternatively, this claim is denied. d) The claim that trial counsel was ineffective for failing to locate and interview Gerard Burdette. a) Based on the trial record, this claim is due
1
1 1 1 1
to be summarily dismissed pursuant to Ala. R. Crim. P.

32.7(d) because no material issue of law or fact exists
which would entitle Jackson to relief and no purpose would be served by any further proceedings. In his amended Rule 32 petition, Jackson argues that had trial counsel not failed to investigate, they would have found evidence indicating that the murder was the result of a drug deal and not a robbery. Jackson argues that had counsel presented such evidence, the trial court would have denied the State's motion limine. However, the record demonstrates that in limine, counsel did in
objecting to the State's motion in
present the same evidence that Jackson asserts should have been presented in response to the State's motion in limine. Prior to trial, Jackson's counsel argued were drug dealers and the
that the victim and defendant
14
murder was the result of a drug deal and not a robbery. Trial counsel further explained to the trial court that there was evidence that the victim was also known to sell fake crack. (R. 26-31, 37-38)
I 1
Jackson has not presented any new facts that were not already heard and rejected by this Court in granting the State's motion in limine. As such, this
claim is due to be summarily dismissed pursuant Ala. R. Crim. P. 32.7(d) because no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. b) Moreover, this claim should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State, 836 So. 2d 915, 939-941 (Ala. Crim. App.
1999). The Court of Criminal Appeals held that Jackson was not entitled to a continuance to locate Mr. Burdette and that reading of his statement into evidence was satisfactory. Jackson cannot prevail on a
1 1
claim of ineffective assistance of counsel when the Court of Criminal Appeals ruled that the ground for the claim. was without merit. See Dobyne v. State, 805 So.
15
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no manifest injustice under the `plain error' standard on direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington"); Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for not raising a claim this court has already found to be without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without merit and, as a result, this claim
1 1
should be dismissed as a matter of law.
c) Alternatively, this claim is denied.

2. The Claim That Counsel Was Ineffective For Failing To "Procure Necessary Expert Assistance".
13. This claim is contained in paragraphs 28-38 and contains separate sub-claims. These claims are answered as follows:
a)The claim that trial counsel was ineffective for failing to procure the assistance of a firearm and projectile expert.
a) Based on the trial record, this claim is due to
be summarily dismissed pursuant Ala. R. Crim. P. 16
32.7(d) because no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. In his amended Rule 32 petition, Jackson argues that,a firearm expert could have testified that it was possible that the "projectile that caused Mr. Moore's death could
1 1 1 1 1 1 1 1 1 I
have been fired by either the 9 mm gun or the .357 carried by the co-defendants." However, the record demonstrates that such testimony was introduced and presented to the jury. On cross-examination of State's witness Joe Saloom, Jackson's trial counsel brought out the fact that the bullet recovered from Mr. Moore's body could have been fired from either a 9 mm pistol or .357 pistol. Q. Let me get back to my question. Could it have come from a nine-millimeter? A. Yes, sir, it could. (R. 506) * * * * * * * * * * *
Q. Dr. Saloom, are you saying that there is no ninety grain .357 cartridges or nine-millimeter
cartridges on the market? . 17
1 1
A. No,, sir, I'm not. (R. 508) Because testimony was introduced by a firearms expert that the bullet could have come from a,ninemillimeter or .357 pistol, Jackson cannot establish
deficient performance or prejudice under Strickland v. Washington. As such, this claim is due to be dismissed pursuant to Ala. R. Crirn. P. 32.7(d) because no material issue of law or fact exists which would
1 1 1
entitle Jackson to relief and no purpose would be served by any further proceedings.

b) The claim that trial counsel was ineffective for failing to secure the assistance of an expert on eyewitness identifications.
a) Based on the trial record, this claim is due to
1 1 1 I
be summarily dismissed pursuant Ala. R. Crim. P. 32.7(d) because no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. In his amended Rule 32 petition, Jackson argues that the State relied on Leroy Geary to establish that it was the
18
person in the driver's seat who shot the victim. (Jackson's Amnd. Pet. at 12) Jackson asserts. that an expert on eyewitness identification would have testified that under the conditions at the time, any such identification would have been unreliable. However, Leroy Geary never identified Jackson as the shooter. Moreover , all three co-defendants testified
that it was Jackson who was driving the car at the time of the murder and who jumped out of the car from the driver's seat after the crash. (R. 317, 386, 438).
Furthermore, Eric Williams and Christopher Rudolph both identified Jackson as the driver and shooter in this case. (R. 386, 438). Far from relying on Leroy Geary's testimony to establish that the person in the driver's side of the vehicle that was responsible for murdering the victim, the State presented multiple eyewitnesses
who testified that Jackson was the shooter. As such,-even if trial counsel had procured an expert to testify that Leroy Geary's testimony was unreliable, other overwhelming evidence existed that Jackson was the shooter. Therefore, Jackson cannot establish deficient performance or prejudice under
19
Strickland v. Washington. As such, this claim is due to be dismissed pursuant to Ala. R. Crim. P. 32.7(d) because no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings.

c.)-The claim that trial counsel was ineffective for failing to procure the assistance of an investigator and/or social worker. a) This claim is due to be dismissed for failing to meet the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P. Jackson does not fully disclose the factual basis of his claim that he was denied effective
1 1
assistance of counsel because trial counsel failed to procure the services of an investigator and/or social worker. His pleading does not include any facts which an investigator or social worker would have uncovered that, if presented by trial counsel, would have resulted in a different outcome during the guilt phase. Under Rule 32.7(d), Ala.R.Crim.P., any claim of ineffective assistance of counsel that is not sufficiently pleaded is due to be dismissed. ("If the
court- determines that the petition is not sufficiently 20
specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further
proceedings, the court may either dismiss the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
1
b) Additionally, Jackson also asserts that an investigator or social worker would have also assisted trial counsel in challenging the admissibility of his statements. This claim should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Ex parte Jackson, 836 So. 2d 979, 982-985 (Ala. 2002). The Supreme Court of Alabama found that Jackson's statements were voluntary and admissible. Jackson cannot prevail on a claim of ineffective assistance of counsel when the Supreme Court has ruled that the
21
ground for the claim was without merit. See Dobyne v.
El
1
State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A finding of no manifest injustice under the `plain error' standard on direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington"); Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for not raising a claim this court has already found to be without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without merit and, as a
1 1
result, this claim should be dismissed as a matter of law.

d) The claim that trial counsel was ineffective for failing to procure the assistance of a mental health expert.
a) This claim is due to be dismissed for failing to meet the requirements of Rules 32.3 and 32.6(b),
1 1
Ala.R.Crim.P. Jackson does not fully disclose the factual basis of his claim that he was denied effective
assistance of counsel because trial counsel failed to 22
procure the services of a mental health expert. His pleading does not include any facts which a mental health expert would have uncovered that, if presented by trial counsel, would have resulted in a different outcome during the guilt phase. Nor does Jackson specifically identify any mental impairments he
allegedly suffers from .
Under Rule 32.7(d),
Ala.R.Crim.P., any claim of ineffective assistance of counsel that is not sufficiently pleaded is due to be dismissed. ("If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief
1 1 1 1 1 I
under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
b) Alternatively, this claim is denied. 23
e)The claim that trial counsel was ineffective for failing to procure the assistance of an expert on drug and alcohol abuse.
a) Jackson has failed to allege any facts in support of this claim in his petition, nor has he demonstrated or indicated how he was prejudiced by trial counsel's failure to procure a drug and alcohol
expert. As such, Jackson's claim fails to comply with the specificity and full factual pleading requirements
...of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v. State, 2003 WL 1949823, *3 (Ala. Crim. App. 2003)("Although Bracknell specifically identified the acts or omissions on the part of his trial counsel that he believed constituted
deficient performance, he failed to include in his petition any facts tending to indicate how those acts or omissions prejudiced his defense."). Under Rule 32.7(d), Ala.R.Crim.P., any claim of ineffective assistance of counsel that is not sufficiently pleaded
is due to be dismissed. ("If the court determines that the petition is not sufficiently specific, or is
24
precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and
that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b),
t
1 1 1
32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
t t
1
3. The Claim That Counsel Was Ineffective For Failing To Effectively Challenge The State's investigation And Presentation Of The Case.
14. This claim is contained in paragraphs 39-65 and contains numerous sub-claims. These claims are answered as follows:
a. The claim that trial counsel was ineffective for failing to timely file a Youthful Offender Application. a) Based on the trial record, this claim is due to be summarily dismissed pursuant Ala. R. Crim. P.
25
32.7(d)
because no material issue of law or fact exists
which would entitle Jackson to relief and no purpose
would be served by any further proceedings. Even if trial counsel had presented evidence of Jackson's upbringing and drug use, his Youthful Offender Application would have been turned down. As documented in the pre-sentence investigation report, Jackson had an extensive criminal record. (C. 12-18) Jackson had
previously been arrested for such felonies as robbery, burglary, theft, and assault multiple times. (C. 16-17) Due to the seriousness of Jackson's previous convictions and the failure of boot camp and other punishments. to reform his conduct, his Youthful Offender Application would have been denied even if counsel had presented evidence cited by Jackson in his petition. b) Additionally, this claim is due to be dismissed for failing to meet the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P. Jackson does not
t t
1 1
fully disclose the factual basis of his claim that he was denied effective assistance of counsel because trial counsel failed to timely file and adequately
26
argue his Youthful Offender Application. His pleading does not include any facts which, if presented by trial counsel, would have resulted in a different outcome during the guilt phase. ("If the court determines that the petition is not sufficiently specific, or is
1 1
precluded, or fails to state a claim, or that no

material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P.
t
1
32.7(d).
t
I I

b. The claim that trial counsel was ineffective for failing to challenge Jackson ' s underlying convictions. a) This claim is due to be dismissed for failing to meet the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P. Jackson does not disclose the factual
27
1 1
basis of his claim that he was denied effective assistance of counsel because trial counsel failed to challenge his underlying convictions. Jackson does not explain why guilty pleas to the underlying convictions were not voluntary. ("If the court determines that the
petition is not sufficiently specific, or is precluded,

or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be
1 1 1 1 1
s,_erved by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
b) Alternatively, this claim is denied. c. The claim that trial counsel was ineffective for conceding guilt before the trial court.
a) This claim is due to be dismissed pursuant to
t I
Ala. R. Crim. P. 32.7(d). Jackson cannot demonstrate prejudice or that the outcome of the trial would have 28
been different had trial counsel not told the trial
1 I
court that they may know where the murder weapon was located. This information was never related to the jury, who was charged with deciding Jackson's guilt or innocence. As such, Jackson cannot satisfy the prejudice prong as required by Strickland v.
t
1 1
Washington. Therefore, this claim is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
b) Alternatively, this claim is denied. d. The claim that trial counsel was ineffective for shifting the burden of proof during j ury selection. a) Based on the trial record, this claim is due to be summarily dismissed pursuant to Ala. R. Crim. P. 32.7(d) because no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. The
t t
1 1
record indicates that at the close of testimony during the guilt phase, the trial court instructed the jury as to the law:
We are that point in the proceedings where it is my duty to tell you what the law of this case is
29
and how you will go about arriving at a verdict in this phase of the case.
(R. 69-70) The trial court went on to explain that it was the State's burden to prove Jackson's guilt beyond a reasonable doubt.
1 1
And that plea of not guilty places the burden entirely on the State of Alabama to prove his guilt beyond a reasonable doubt before you find him guilty. Because the burden rests entirely on the State, we say he starts his trial -- Mr. Jackson starts his trial with a clean slate presumed not to be guilty because Mr. Jackson does not have any burden. (R. 77-78) Jurors are presumed to follow the trial
1 1
court's-instructions. Harrison v. State, 2002 WL 1137708, (Ala. Crim. App. 2002). The trial court's instructions were thorough and accurate. Therefore, those instructions eliminated any possible prejudice to the appellant. Because Jackson cannot demonstrate prejudice as required by Strickland, this claim is due to be dismissed pursuant to Ala. R. Crim. P. 32.7(d) for failing to state a claim upon which relief may be granted. b) Alternatively, this claim is denied.
t
1 1
1 I
e. The claim that trial counsel was ineffective for failing to remove
30
certain jurors and for failing to secure a jury expert. a) This claim is due to be dismissed for failing to meet the requirements of Rules 32.3 and 32.6(b),
1 1
Ala.R.Crim.P. Jackson does not disclose the factual basis of his claim. Jackson does not identify any jurors that trial counsel should have removed nor does Jackson explain how a jury expert would have assisted in voir dire. ("If the court determines that the petition is not sufficiently specific, or is precluded,
or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either
dismiss the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is
due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
31
f. The claim that trial counsel was ineffective for failing to,object to the State' s challenges for cause.
a) This claim should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State,
836 So. 2d 915, 951-953 (Ala. Crim. App. 1999). The Court of Criminal Appeals concluded that State's
challenges for cause were properly granted. Jackson cannot prevail on a claim of ineffective assistance of
1 I 1 I 1
counsel when the Court of Criminal Appeals has ruled that the ground for the claim was without merit. See Dobyne v. State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A finding of no manifest injustice under the `plain error' standard on direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington"); Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for not raising a claim this
1 1 I
court has already found to be without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without merit
32
1 1 1 1 1 1 1
and, as a result, this claim should be dismissed as a matter of law. b) Alternatively, this claim is denied.
9The claim that trial counsel was ineffective for failing to adequately raise and argue Batson and J.E.B. objections.
a) This claim should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State, 836 So. 2d 915, 946-948 (Ala. Crim. App. 1999). The Court of Criminal Appeals held that no Batson or J.E.B. violations occurred. Jackson cannot prevail on a claim of ineffective assistance of counsel when the Court of Criminal Appeals has ruled that the ground for the claim was without merit. See Dobyne v. State, 805 So.
I 1
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no manifest injustice under the `plain error' standard on direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington"); Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be 33
without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been
held to be without merit and , as a result , this claim should be dismissed as a matter of law.

h. The claim that trial counsel was ineffective for failing to adequately investigate and cross- examine certain witnesses. a) This claim is due to be dismissed for failing to meet the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P. Jackson does not disclose the factual basis of his claim. Jackson does not identify testimony, evidence, or questions that trial counsel should have elicited in their investigation or on cross-examination. Instead, Jackson only makes bare allegations that trial counsel's investigation and cross-examination of witnesses was insufficient. ("If the court determines that the petition is not sufficiently specific, or is precluded, or fails to
1 1 1 1 1 1 1
1 1 I
state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss
34
the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
i. The claim that trial counsel was ineffective for failing to challenge the voluntariness of Jackson's statements in front of the jury. a) This claim should be summarily dismissed because this Court is without jurisdiction to consider this claim. This claim does not relate back to any claim in the original Rule 32 petition and was only alleged after the limitation's period set forth in Rule 32.2(c) had expired. Because his certificate of judgement was issued on May 31, 2002, Jackson only had
until July 31, 2003, to file his Rule 32 petition. Jackson timely filed his original Rule 32 petition on July 31, 2003. Jackson did not file his amended Rule 32 petition until March 31, 2004. As such,. any claims in his amended petition that are new and different
35
claims, and, thus, do not relate back, are time-barred. Charest v. State, 2002 WL 734306, *2 (Ala. Crim. App. Apr. 26, 2002). Jackson's claim that trial counsel should have challenged the voluntariness of his statements before the jury is a new claim that does not relate back to his original and timely filed petition. Therefore, this claim is due to be dismissed as timebarred by Rule 32,2(c).
1 I
b) Alternatively, this claim should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Ex parte Jackson, 836 So. 2d 979, 982-985 (Ala. 2002). The Supreme Court of Alabama found that Jackson's statements were voluntary and admissible. Jackson cannot prevail on a claim of ineffective assistance of counsel when the Supreme Court has ruled that the ground for the claim was without merit. See Dob rie v. State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000) ("A finding of no manifest injustice under the `plain error' standard on direct appeal serves to establish a
finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v.
36
Washington"); Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for not raising a claim this court has already found to be without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without merit and, as a
result, this claim should be dismissed as a matter of

law.
1 1
c) Alternatively, this claim is denied. The claim that trial counsel was ineffective for failing to challenge the State's expert ballistic evidence. a) Based on the trial record, this claim is due to be summarily dismissed pursuant to Ala. R. Crim. P. 32.7(d) because no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. In his amended Rule 32 petition, Jackson argues that counsel was ineffective in its cross-examination of the State's expert on ballistics evidence. Jackson alleges that trial counsel should have established that the bullet
that killed the victim could have come from a different gun. However, the record demonstrates that such
37
.testimony was introduced and presented to the jury. On cross-examination of State's witness Joe Saloom,
Jackson's trial counsel brought out the fact that the bullet recovered from Mr. Moore's body could have been fired from either a 9 mm pistol or .357 pistol. Q. Let me get back to my question. Could it have
1 1
come from a nine-millimeter?
A. Yes, sir, it could. (R. 506)
Q. Dr. Saloom, are you saying that there is no ninety grain .357 cartridges or nine-millimeter cartridges on the market?
A. No, sir, I'm not. (R. 508) Because testimony was introduced by a firearms expert that the bullet could have come from a ninemillimeter or .357 pistol, Jackson cannot establish deficient performance or prejudice under Strickland v.
1 1 I
Washington. As such, this claim is due to be dismissed pursuant to Ala. R. Crim. P. 32.7(d) because no material issue of law or fact exists which would
38
entitle Jackson to relief and no purpose would be
i I
served by any further proceedings.

b) Alternatively, this claim is due to be dismissed for failing to meet the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P. Jackson does not disclose the factual basis of his claim. Jackson does not specify what further testimony, or questions on cross-examination that trial counsel should have elicited. Instead, Jackson only makes bare allegations that trial counsel's investigation and crossexamination were insufficient. ("If the court
1 1 1 1
determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule
1
I
and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be
I
39
summarily dismissed by the Court. Ala. R. Crim. P. 32.7 (d) . t) Alternatively, this claim is denied.
k. The claim that trial counsel was ineffective for failing to object to i rrelevant and prejudicial evidence. a) This claim should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State, 836 So. 2d 915, 950-951 (Ala. Crim. App. 1999). The
1 1
Court of Criminal Appeals held that photos and video were properly admitted. Jackson cannot prevail on a claim of ineffective assistance of counsel when the Court of Criminal Appeals has ruled that the ground for the claim was without merit. See Dobyne v. State, 805 So. 2d 733, 744 (Ala. Crirn. App. 2000)("A finding of no
1 I 1 1 1
manifest injustice under the `plain error' standard on direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington"); Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for not raising a claim this court has already found to be 40
without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without merit and, as a result, this claim should be dismissed as a matter of law. b) Alternatively, this claim is denied. 1. The claim that trial counsel was ineffective for failing to object to evidence without the proper chain of custody. a) This claim should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State,
836 So. 2d 915, 953-955 (Ala. Crim. App. 1999). The Court of Criminal Appeals held that the bullet was properly admitted into evidence. Jackson cannot prevail on a claim of ineffective assistance of counsel when the Court of Criminal Appeals has ruled that the ground for the claim was without merit. See Dobyne v.
1 I 1 I
State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A finding of no manifest injustice under the `plain error' standard on direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington"); Callahan v. State, 767 So. 2d 380, 388
41
(Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for not raising a claim this court has
already found to be without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without merit and, as a result, this claim should be dismissed as a matter of
1 1 1 1
law. b) Alternatively, this claim is denied.

M. The claim that trial counsel was ineffective for failing to present a viable defense theory.
a) Based on the trial record, this claim is due to be summarily dismissed pursuant Ala. R. Crim. P. 32.7(d) because Jackson cannot demonstrate deficient performance or prejudice as required by Strickland v. Washington. As a result, no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings.
t
1
The trial record clearly demonstrates that trial counsel did have a viable theory of defense. Specifically, trial counsel's theory of defense was
t
I
that Jackson did not fire the fatal shot. On crossexamination of State's witness Joe Saloom, Jackson's
42
I I 1 1
trial counsel brought out the fact that the bullet recovered from Mr. Moore's body could have been fired from either a 9 mm pistol or .357 pistol. (R. 508) During closing argument, Jackson's trial counsel reiterated that someone else may have fired the fatal shot. (R. 56-57) Clearly, trial counsel presented a viable theory of defense.
Furthermore, Jackson's assertions that trial counsel should have presented evidence that the murder
1 1 1 1 1
was the result of a drug deal is without merit. Prior to trial, Jackson's counsel argued that the victim and defendant were drug dealers and the murder was the result of a drug deal and not a robbery. Trial counsel further explained to the trial court that there was evidence that the victim was also known to sell fake crack. (R. 26-31, 37-38) The trial court rejected trial counsel's arguments and granted the State's motion in limine preventing trial counsel from presenting any such evidence. The trial court's
t
1 1
granting of the motion in limine was upheld on appeal. Jackson v. State, 836 So. 2d 915, 929-931 (Ala. Crim. App.-1999). Jackson has not presented any new facts
43
concerning the "drug deal gone bad" theory that was not already heard and rejected by this Court and by the Court of Criminal Appeals. As such, this claim is due to be dismissed pursuant to Ala. R. Crim. P. 32.7(d)
1 1 1 1 1
because no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. b) Alternatively, this claim is denied. n. The claim that trial counsel was ineffective for failing to give an adequate closing statement. a) Based on the trial record, this claim is due to be summarily dismissed pursuant to Ala. R. Crim. P. 32.7(d) because Jackson cannot demonstrate deficient performance or prejudice as required by Strickland v. Washington. As a result, no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. Jackson argues that trial counsel should have argued during closing that someone else may have fired the fatal shots and that the murder was not the result of a
t
1 1
1 I
robbery, but a drug deal. In fact, during closing argument, Jackson's trial counsel did argue that
44
someone else may have fired the fatal shot. (R. 56-57) Furthermore, Jackson's assertions that trial counsel should have presented evidence that the murder was the result of a drug deal is without merit. Prior to trial, Jackson's counsel argued that the victim and defendant were drug dealers and the murder was the
1 1 1 1 1
result of a drug deal and not a robbery. Trial counsel

further explained to the trial court that there was evidence that the victim was also known to sell fake crack. (R. 26-31, 37-38) The trial court rejected trial counsel's arguments and granted the State's motion in limine preventing trial counsel from presenting any such evidence. The trial court's granting of the motion in limine was upheld on appeal. Jackson v. State, 836 So. 2d 915, 929-931 (Ala. Crim. App. 1999). Jackson has not presented any new facts concerning the "drug deal gone bad" theory that was not already heard and rejected by this Court and by the Court of Criminal Appeals. Therefore, Jackson.'s trial counsel was prevented from arguing any such theory. As
such, this claim is due to be dismissed pursuant to Ala. R. Crim. P. 32.7(d) Jackson cannot demonstrate
45
deficient performance or prejudice based on counsel's alleged failure to argue that someone else fired the fatal shot or that the murder was the result of a drug deal.
1 1 1 1 1
'b) Alternatively, this claim is denied.

o. The claim that trial counsel was ineffective for failing to ensure a complete record. a) This claim is due to be dismissed for failing to meet the requirements of Rules 32.3 and 32.6(b), .Ala.R.Crim.P. Jackson fails to state how he was prejudiced by trial counsel's failure to ensure a complete record. As a result, Jackson has not provided any information that would show that the outcome of the trial would have been different had trial counsel ensured a complete record. As such, Jackson's claim
fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v. State, 2003 WL 1949823, *3 (Ala. Crim.
t
1
App. 2003)("Although Bracknell specifically identified the acts or omissions on the part of his trial counsel
46
that he believed constituted deficient performance, he failed to include in his petition any facts tending to
1 1 1 1 1 1 1 I 1
indicate how those acts or omissions prejudiced his defense.").

4. The Claim That Counsel Was Ineffective For Failing To Request A Jury Instruction On The Lesser Included Offense Of Robbery, And For Failing To Object To The Trial Court ' s Failure To Give An Instruction On Robbery Sua Sponte.
15. This claim is contained in paragraph 66 and is answered as follows: (a) This claim is without merit and should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State, 836 So. 2d 915, 938939 (Ala. Crim. App. 1999): Jackson cannot prevail on a claim of ineffective assistance of counsel when the Court of Criminal Appeals ruled that the ground for the claim was without merit. See Dobyne v. State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A finding of no
manifest injustice under the `plain error' standard on direct appeal serves to establish a finding of no
47
prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington")
I 1
Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for not raising a claim this court has already found to be without merit"). The ground which underlies Jackson's
t t t t t
1 1
claim of ineffective assistance of counsel has been held to be without merit and, as a result, this claim should be dismissed as a matter of law.
Fb) -Alternatively, this claim is denied.
5. The Claim That Counsel Was Ineffective For Failing To Object To The Trial Court's Leaving The Courtroom While The Jury Watched Jackson ' s Videotaped Statement To Police.
16. This claim is contained in paragraph 67 and is answered as follows:
(a) This claim is without merit and should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State, 836 So. 2d 915, 941943 (Ala. Crim. App. 1999). Jackson cannot prevail on a claim of ineffective assistance of counsel when the
Court of Criminal Appeals ruled that the ground for the 48
claim was without merit. See Dobyne v. State, 805 So.
1 1
2d 733, 744 (Ala. Crim. App. 2000) ("A finding of no

manifest injustice under the `plain error' standard on direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington");
t t
1 1 1 1 1 1
Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for not raising a claim this court has already found to be without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without merit and, as a result, this claim should be dismissed as a matter of law. (b) Alternatively, this claim is denied.
6. The Claim That Counsel Was Ineffective For Failing To Object To The Trial Court's Instruction On Reasonable Doubt.

(a) This claim is without merit and should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State, 836 So. 2d 915, 948-
t
1
49
950.(Ala. Crim. App. 1999). Jackson cannot prevail on
I 1
a claim of ineffective assistance of counsel when the Court of Criminal Appeals ruled that the ground for the claim was without merit. See Dob yne v. State,.805 S
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no manifest injustice under the `plain error' standard on
t t
1 1 1 1 1
direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington"); Callahan v..St.ate, 767 So. 2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for not raising a claim this court has already found to be without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without merit and, as a result, this claim should be dismissed as a matter of law. (b) Alternatively, this claim is denied.
7. The Claim That Counsel Was Ineffective For Failing To Insure That The Jury Was Instructed About The Accomplice Corroboration Requirement.
I
50
(a) This claim is without merit and should be
dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State, 836 So. 2d 9.15, 946 (Ala. Crim. App. 1999). Jackson cannot prevail on a claim of ineffective assistance of counsel when the Court of Criminal Appeals ruled that the ground for the claim was without merit. See Dobyne v. State, 805 So.
1 1 1 1 1 1 1 I
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no manifest injustice under the `plain error' standar.d.on. direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington"); Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for not raising a claim this court has already found to be without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without. merit and, as a result, this claim should be dismissed as a matter of law.
(b) Alternatively, this claim is denied.

8. The Claim That The Cumulative Effect Of Counsel ' s Ineffective Performance At The
51
Guilt Phase Denied J ackson The Right To The Effective Assistance Of Counsel.,
19. This claim is contained in paragraph 71 and is
answered as follows:
(a) This claim should be dismissed because, as a matter of law, this claim cannot be evaluated under Strickland v. Washington, 466 U.S. 668, 690 (1984). Strickland requires the petition to identify specific acts or omissions on the part of trial counsel. The United States Supreme Court states in Strickland:
1 1 1 1 1 1
A convicted defendant making a claim of ineffective assistance of counsel must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.
Strickland, 466 U.S. at 690 (emphasis added). This passage from Strickland supports the proposition that the United States Supreme Court has required that specific instances of ineffective assistance of counsel be alleged, and a claim that the cumulative effect of alleged errors equals ineffective assistance of counsel
is insufficient. 52
Moreover, Rule 32.7(d) states:

If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition. Ala. R. Crim. P. 32.7(d). (emphasis added). Thus, this claim should be dismissed because it does not assert a specific claim of ineffective assistance of counsel as required by Strickland and, accordingly, fails to present a material issue of law or fact under Rule 32.7(d).
1 1 1 1 1 1 1 1
(b) Alternatively, this claim is denied.

B. The Claim That Jackson Was Denied Effective Assistance Of Counsel During The Penalty And Sentencing Phases of His Trial. 20. This claim is contained in paragraphs 72-150 and contains numerous sub-claims. These claims are answered as follows3:
3To the extent that paragraphs 72-73 are meant as an independent claim for relief, they do not sufficiently state a claim upon which relief may be granted pursuant to Ala. R. Crim. P. 32.3, 32.6(b). Jackson fails to identify any evidence or information that would have
53
i.The Claim That Counsel Was Ineffective For Failing To Investigate And Present "Even A Portion Of The Available Mitigating Evidence " At Both The Penalty And Sentencing Phases.

a) This claim is denied.
2. The Claim That Counsel Was Ineffective For Failing To Develop And Present A Penalty And Sentencing Phase Strategy That Would Convince The Trial Court That Life Without Parole Was The Appropriate Sentence.
a) This claim is denied.

3. The Claim That Counsel Was Ineffective For Failing To Obtain And Present Independent Expert Testimony At The Penalty And Sentencing Phases.
1 1
been discovered that would have changed the outcome of the trial. As such, Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Cram. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v. State, 2003 WL 1949823, *3 (Ala. Crim. App. 2003)("Although Bracknell specifically identified the acts or omissions on the part of his trial counsel that he believed constituted deficient performance, he failed to include in his petition any facts tending to indicate how those acts or omissions prejudiced his defense.").
54
23. This claim is contained in paragraphs 140-146.
Jackson alleges that counsel was ineffective for failing to procure the services of an investigator, social worker or mitigation specialist, mental health expert, and an expert on drug and alcohol abuse. This claim is answered as follows:
a) Jackson fails to state how he was prejudiced

by trial counsel's failure to procure an investigator, social worker or mitigation specialist, mental health expert, and an expert on drug and alcohol abuse. Jackson has not specified what these experts would have testified to or how their testimony would have altered the outcome of the penalty phase. Jackson fails to identify any evidence or information that would have been discovered that would have changed the outcome of
1 1
the trial. As such, Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v. State, 2003 WL 1949823, *3 (Ala. Crim. App. 2003).("Although Bracknell specifically identified the
55
acts or omissions on the part of his trial counsel that he believed constituted deficient performance, he failed to include in his petition any facts tending to indicate how those acts or omissions prejudiced his defense.").

4. The Claim That Counsel Was Ineffective For Failing To Object To Alabama ' s Method Of Execution As Cruel And Unusual Punishment.
24. This claim is contained in paragraph 147 and
1 1
is answered as follows: a) This claim is due to be dismissed because there is no material issue of fact or law. Ala. R. Crim. P. 32.7(d). On July 1, 2002, the Alabama Legislature modified Alabama law to provide for execution by lethal injection unless the person elects to be executed by electrocution. Furthermore, this claim should also be dismissed pursuant to Ala. R. Crim. P. 32.7(d) for failure to state a claim upon which relief can be granted because lethal injection has never been found to be cruel and unusual
1
E
punishment. See Poland v. Stewart, 117 F. 3d 1094, 1105 (9th Cir. 1997)(Lethal injection not found to be
56
cruel and unusual punishment). Rather, offering lethal injection as a method of execution has been deemed to correct any possibility of cruel and unusual punishment in regards to other methods of execution. See Stewart v. LeGrand, 526 U.S. 115, 119 (1999). Thus, this claim is due to be dismissed. b) Alternatively, this claim is denied.
5. The Claim That Counsel Was Ineffective For Failing To Object To Double Counting Robbery As An Element Of The Capital Offense And As An Aggravating Circumstance.

a) This claim is without merit and should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State, 836 So. 2d 915, 958959 (Ala. Crim. App. 1999). Jackson cannot prevail on a claim of ineffective assistance of counsel when the Court of Criminal Appeals ruled that the ground for the claim was without merit. See Dobyne v. State, 805 So.
2d 733, 744 (Ala. Crim. App. 2000)("A finding of no manifest injustice under the `plain error' standard on
57
direct appeal serves to establish a finding of no

prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington"); Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App. 1999)("Counsel can not be said to be ineffective for not raising a claim this court has already found to be
1 1
without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without merit and, as a result, this claim should be dismissed as a matter of law pursuant to Rule 32.7(d) of the Ala. R. Crim. F.
6. The Claim That Counsel Was. Ineffective For Failing To Object To The Death Penalty In This Case As Disproportionate.
a) This claim is without merit and should be dismissed as a matter of law because the underlying issue was raised on direct appeal and held to be without merit. Jackson v. State, 836 So. 2d 915, 965 (Ala. Crim. App. 1999). Jackson cannot prevail on a
claim of ineffective assistance of counsel when the
58
1 1
Court of Criminal Appeals ruled that the ground for the claim was without merit. See Dobyne v. State, 805 So. 2d 733, 744 (Ala. Crim. App. 2000)("A finding of no manifest injustice under the `plain error' standard on direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington"); Callahan v. State, 767 So. 2d 380, 388 (Ala. Crim. App.
1999)("Counsel can not be said to be ineffective for
not raising a claim this court has already found to be without merit"). The ground which underlies Jackson's claim of ineffective assistance of counsel has been held to be without merit and, as a result, this claim should be dismissed as a matter of law pursuant to Rule 32.7(d) of the Ala. R. Crim. P.
1
1 1 1

7. The Claim That The Cumulative Effect Of Counsels ' Ineffective Performance At The Penalty And Sentencing Phases Denied
Jackson The Right To The Effective Assistance Of Counsel.
59
a) This claim should be dismissed pursuant to Ala. R. Crim. P. 32.7(d) as a matter of law because this claim cannot be evaluated under Strickland v.
I 1 1 1
Washington, 466 U.S. 668, 690 (1984). Strickland requires the petition to identify specific acts or omissions on the part of trial counsel. The United States Supreme Court states in Strickland:
A convicted defendant making a claim of ineffective assistance of counsel must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.
Strickland, 466 U.S. at 690 (emphasis added). This
passage from Strickland supports the proposition that the United States Supreme Court has required that specific instances of ineffective assistance of counsel be alleged, and a claim that the cumulative effect of alleged errors equals ineffective assistance of counsel is insufficient. Moreover, Rule 32.7(d) states:
If the court determines that the petition is not sufficiently
60
1 1 1 1 1 1 1
specific, or is precluded, or fails to state a claim, that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition.
Ala. R. Crim. P. 32.7(d). (emphasis added). Thus, this claim should be dismissed because it does not assert a specific claim of ineffective assistance of counsel as required by Strickland and, accordingly, fails to present a material issue of law or fact under Rule 32.7(d).

II. THE CLAIM THAT JUROR MISCONDUCT DURING THE TRIAL DEPRIVED JACKSON OF HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS , AND A RELIABLE SENTENCE DETERMINATION.
28. This claim is contained in paragraphs 151-163
1 1 1 I
and contains numerous allegations of juror misconduct. These claims are answered collectively as follows:
a) These claims are procedurally barred from review because they could have been but were not raised at trial. Rule 32.2(a)(3), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim which could have been raised or addressed at trial but
61
1 1 1 1 1 1
was not. See e.g., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 So. 2d 167, 171 (Ala. 1989). b) These claims are procedurally barred.from review because they could have been but were not raised on appeal. Rule 32.2(a)(5), Ala.R.Crim.P. and Alabama
caselaw provide that relief cannot be given on a claim that could have been raised or addressed on appeal but was not. See e.g., Daniels v. State, supra; Ma wood v. State, 791 F. 3d 1428, 1444 (11th Cir. 1986); Coulter v. State, 494 So. 2d 895, 898, 907-08 (Ala. Crim. App.), cert. denied, 494 So. 2d 895 (Ala. 1996). c) Additionally, in paragraph 156, Jackson alleges that Juror Barbara Endsley determined that
Jackson should be sentenced to death prior to the penalty phase of the trial. This claim is without merit and is due to dismissed based on the record pursuant to Rule 32.7(d). The jury unanimously recommended that Jackson be sentenced to life without the possibility of parole. (R. 599) As such, Jackson's
allegation regarding Juror Endsley is obviously without merit-and due to be dismissed based on the record.
62
d) Alternatively,
these claims are denied.
III. THE CLAIM THAT THE STATE WITHHELD FAVORABLE EVIDENCE FROM THE DEFENSE THUS VIOLATING JACKSON'S FEDERAL AND STATE RIGHTS.
29. This claim is contained in paragraphs 164-168, and contains several allegations of Brady violations by the State. Specifically, Jackson alleges that the
1 1
State: 1) entered into deals or agreements with codefendants, in which in exchange for their testimony, they would receive lesser sentences; 2) withheld evidence involving an individual by
1 1 1 1
the name of Patrick Stinson; 3) withheld a copy of a crime scene diagram drawn by Victoria Moss;
4) withheld a complaint filed by A.C. Porterfield concerning three men on his property;
5) withheld offense reports or interviews with Roderick Crawford;
6) withheld test or examination results performed on both cars involved in this case;
I
63
t
7) withheld-information provided by Latrice Walker.
These claims are answered collectively as follows:

a) Jackson's claims are procedurally barred from review because they could have been but were not raised at trial. Rule 32.2(a)(3), Ala.R.Crim.P. and Alabama
1 1
caselaw provide that relief cannot be given on a claim which could have been raised or addressed at trial but
was not. See e.2., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 S 2d 167, 171 (Ala. 1989). b) These claims are also procedurally barred from review because they could have been but were not
1 1 1 1
raised on appeal. Rule 32.2(a)(5), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that could have been raised or addressed on appeal but was not. See e.g., Daniels v. State, supra; Ma wood v. State, 791 F. 3d 1428, 1444 (11th Cir. 1986); Coulter v. State, 494 So. 2d 895, 898, 907-08 (Ala. Crim. App.), cert. denied, 494 So. 2d 895 (Ala. 1996).
I
64
c) Additionally, the Brady allegations are due to be dismissed as insufficiently plead. Jackson states that "evidence introduced at trial and in the records that Mr. Jackson has received strongly indicates that additional discoverable material exists". (Jackson's
Amd. Pet. at 65) Far from actually asserting that such violations took place, Jackson has only alleged that they may exist. Furthermore, Jackson has not specifically explained how any of the evidence allegedly withheld from the defense was either
favorable or exculpatory to his defense. For example, Jackson alleges that a witness drew a diagram of the crime scene and that it was not disclosed to the defense. However, Jackson does not explain in the petition how this diagram is either favorable or exculpatory. Another example involves Jackson's claim that law enforcement impounded both the cars involved in the murder. Jackson argues that testing may have been done on the vehicles which was never disclosed to
the defense. Again, Jackson fails to explain how or why such testing, if it even exists, is favorable or exculpatory. All of Jackson's Brady claims lack any
65
statement as to why the allegedly suppressed evidence is either favorable, exculpatory, or even discoverable.
As such, Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d). Ala. R. Crim. P. 32.7(d).
d) Jackson's claim that the State suppressed deals or agreements with the co-defendants in this case is due to be dismissed pursuant to Rule 32.7(d) based on the record at trial. Jackson's three co-defendants- Antonio Barnes, Eric Williams, and Christopher Rudolph -- all testified at trial against Jackson. On direct examination and under oath, all three stated that they were offered nothing by the State in exchange for their testimony, no deal or agreements were made in exchange for their testimony, no promises were made and
t
1 1
1 1 I
that they were only asked to tell the truth. (R. 300, 369-370, R. 424) In his amended petition, Jackson has offered no facts to support his bare allegation that the State suppressed deals or agreements with the codefendants. As such, this claim is due to be summarily
66
dismissed pursuant Ala. R. Crim. P. 32.7(d) because no material issue of law or fact exists which would entitle Jackson to relief and no purpose would be served by any further proceedings. e) Alternatively, these allegations fail to state claims upon which relief may be granted even if plead
1 1 1
as newly discovered evidence. These claims fail to

satisfy the elements for newly discovered material. Ala. R. Crim. P. 32.1(e) requires the following elements to be met in a.claim of newly discovered evidence: (1) The facts relied upon were not known by the petitioner or the petitioner's counsel at the time of trial or sentencing or in time to file a posttrial 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) The facts are not merely cumulative to other facts that were known;
1 1 I 1 I
(3) The facts do not merely amount to impeachment evidence;

(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and (5) The facts establish that the petitioner is innocent of the crime for which the petitioner was convicted or should not-have received the sentence
67
that the petitioner received. Ala. R. Crim. P. 32.1(e). Jackson cannot satisfy the third or fifth element of 32.1(e). Even if the allegations in this claim were true, they would not establish that Jackson is innocent of the crime for which he was convicted, but would rather amount to mere impeachment evidence. As such, this claim fails to
state a claim upon which relief may granted or that
would entitle Jackson to relief. Thus, this claim is due to be summarily dismissed pursuant to Ala. R. Crim. P. 32.7(d).
f) Alternatively, this claim is denied.

IV. THE CLAIM THAT THE IMPOSITION OF THE DEATH PENALTY ON ONE WHO IS MENTALLY RETARDED VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS AND THE STATE CONSTITUTION.
a) This claim is without merit and is denied.

V. THE CLAIM THAT THE DEATH SENTENCE IN THIS CASE IS DISPROPORTIONATE IN VIOLATION OF JACKSON'S STATE AND FEDERAL RIGHTS.
I
68
a) This claim is procedurally barred from review
because it could have been but was not raised or addressed at trial. Rule 32.2(a-)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be. given on a claim which could have been raised or addressed at
trial but was not. See e.g., Daniels v. State, 650 So.
2d 544, 551 (Ala. Crim. App. 1994); Ex arte Sin leton, 548 So. 2d 167, 171 (Ala. 1989). b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson v. State, 836 So-2d 915, 965 (Ala. Crim. App. 1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. See e.g., Ex parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486 U.S. 1036 (1988).
69
VI. THE CLAIM THAT THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF ROBBERY.

a) This claim is procedurally barred from review because it could have been but was not raised or
1 I
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim which could have been raised or addressed at trial._.but.was not. See e.g., Daniels V. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex arte Sin leton, 548 So. 2d 167, 171 (Ala. 1989). b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson v. State, 836 So. 2d 915, 938-939 (Ala. Crim. App. 1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. See e.g., Ex carte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539
So. 2.d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
70
1 1
(1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486 U.S. 1036 (1988). c) Alternatively, this claim is denied.
VII. THE CLAIM THAT THE TRIAL COURT COMMITTED . REVERSIBLE ERROR BY DENYING JACKSON A CONTINUANCE TO SECURE A CRITICAL WITNESS.
32. This claim is contained paragraphs 182-185 and is answered as follows:

a) This claim is procedurally barred from review because it was raised or addressed at trial. (R. 30)
Rule 32.2(a)(2), Ala.R.Crim.P. and Alabama case:law. provides that relief cannot be given on a claim which was raised or addressed at trial. See e.g., Daniels v. State, supra; Holladay v. State, 629 So. 2d 673, 678
(Ala. Crim. App. 1992), cert. denied, 510 U.S. 1171 (1994). b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson v. State, 836 So. 2d 915, 939-941 (Ala. Crim. App. 1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
1 I
caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. See e.g., Ex
arte.Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,
71
114.S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518 So. 2d 840 (Ala. Grim. App.
1988), cert. denied, 486 U.S. 1036 (1988).

VIII . THE CLAIM THAT THE TRIAL COURT IMPROPERLY LEFT THE COURTROOM WHILE THE JURY WATCHED JACKSON'S VIDEOTAPED STATEMENT.
33. This claim is contained in paragraphs 186-187 and. is answered. as follows: a) This claim is procedurally barred from review because it could have been but was not raised or addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim which could have been raised or addressed at trial but was not. See e.g., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex parteSingleton, 548 So. 2d 167, 171 (Ala. 1989).
b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson
v. State, 836 So. 2d 915, 941-943(Ala. Crim. App. 1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
72
1 1
caselaw provide that relief cannot be given on a claim

r
that was raised or addressed on appeal. See e.g., Ex arte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539
So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486 U.S. 1036 (1988). c) Alternatively, this claim is denied.
IX. THE CLAIM THAT THE STATE IMPROPERLY OBTAINED JACKSON ' S CONVICTION BY UNCORROBORATED ACCOMPLICE TESTIMONY.
34. This claim is contained in paragraphs 188-191 and contains two distinct allegations. First, Jackson
1 1 1 1
alleges that the he was convicted solely on the basis of uncorroborated accomplice testimony. Second, Jackson alleges that the trial court erred in failing to instruct the jury on the accomplice corroboration requirement. These claim are answered as follows:
A. The Claim That The State Improperly Obtained Jackson ' s Conviction By Uncorroborated Accomplice Testimony.
This claim is procedurally barred from review because it was raised or addressed at trial. (R. 26-
73
30).. Rule 32.2(a)(2), Ala.R.Crim.P. and Alabama

caselaw provides that relief cannot be given on a claim which was raised or addressed at trial. See eg., Daniels v. State, supra; Hollada v. State, 629 So. 2d 673, 678 (Ala. Cram. App. 1992), cert. denied, 510 U.S. 1171 (1994). b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson v. State, 836 So. 2d 915, 943-946 (Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. See Ex parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,
114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539
So. 2d 1103 (Ala. 1989),
cert. denied , 110 S.Ct. 206
(1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486 U.S. 1036 (1988).

B. The Claim That The Trial Court Erred In Failing To Instruct The Jury About The Accomplice Corroboration Requirement.
74
1
35. This claim is contained in paragraph 191 and
1 1 1 1 1
is answered as follows:
a) This claim is procedurally barred from review because it could have been but was not raised or addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim which could have been raised or addressed at trial but was not. See e., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 So. 2d 167, 171 (Ala. 1989). b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson v. State, 836 So. 2d 915, 946 (Ala. Crim. App. 1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. See e.g., Ex parte
t
1 1
1 1
Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct..206 (1989);
.Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988),
cert.. denied, 486 U.S. 1036. (1988).
75
C) Alternatively, this claim is denied.
1 1 1
X. THE CLAIM THAT THE STATE ' S USE OF ITS PEREMPTORY CHALLENGES DISCRIMINATED ON THE BASIS OF RACE AND GENDER.

a) The Batson claim is procedurally barred from review because it was raised or addressed at trial. (R. 156) Rule 32.2(a)(2), Ala.R.Crim.P. and Alabama caselaw provides that relief cannot be given on a claim which was raised or. addressed at trial. See egg., Daniels v. State, supra; Holladay v. State, 629 So. 2d
t
1 1
t
1 1 1 1 1 I
673, 678 (Ala. Crim. App. 1992), cert. denied, 510 U.S. 1171 ( 1994).
b) The J.E.B. claim is procedurally barred from review because it could have been but was not raised or addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim which could have been raised or addressed at trial but was not. See e.g., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 So. 2d 167, 171 (Ala. 1989).
76
c) This claim is procedurally barred from review because both the Batson and J.E.B. claims were raised
1 1
and addressed on appeal. Jackson v. State, 836 So. 2d 915, 946-948 (Ala. Crim. App. 1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that was raised or addressed
on appeal. See e.g., Ex arte Ford, 630 So. 2d 115
(Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994);
Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486
U.S. 1036 (1988). d) Alternatively, this claim is denied.

XI. THE CLAIM THAT THE TRIAL COURT ' S REASONABLE DOUBT INSTRUCTION WAS UNCONSTITUTIONAL.
37. This claim is contained in paragraphs 195-198 and is answered as follows: a) This claim is procedurally barred from review
because it could have been but was not raised or addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on
a claim which could have been raised or addressed at 77
1 1 1
trial but was not. See e.q., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 So. 2d 167, 171 (Ala. 1989). b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson v. State, 836 So. 2d 915, 948-950 (Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. See e.g., Ex
1 1 1
parte Ford, 630 So. 2d 115 (Ala.. 1993), cert. denied, 114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486 U.S. 1036 (1988). c) Alternatively, this claim is denied.
XII. THE CLAIM THAT THE TRIAL COURT IMPROPERLY ADMITTED PHOTOGRAPHS THAT SERVED ONLY TO INFLAME AND PREJUDICE THE JURY.
38. This claim is contained in paragraphs 199-200
and is answered as follows:

This claim is procedurally barred from review
because it could have been but was not raised or
78
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief-cannot be given on
1 1 I 1 1 1
a claim which could have been raised or addressed at trial but was not. See e.g., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 So. 2d 167, 171 (Ala. 1989).
b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson v. State, 836 So. 2d 915, 950-951 (Ala. Crim. App. 1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. See eg., Ex parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied/. 114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518 So. 2d 840 (Ala. Crirn. App.
1 1 I
1988), cert. denied, 486 U.S. 1036 (1988).
Alternatively, this claim is denied.

XIII.
THE CLAIM THAT THE TRIAL COURT IMPROPERLY GRANTED THE STATE ' S CHALLENGES OF JURORS FOR CAUSE.
79
39. This claim is contained in paragraphs 201-203 and is answered as follows: This claim is procedurally barred from review
because it could have been but was not raised. or addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on
I l 1 1 1
a claim which could have been raised or addressed at

trial but was not. See e.g., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex parteSingleton, 548 So. 2d 167, 171 (Ala. 1989).. b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson v.-State, 836 So. 2d 915, 951-953 (Ala. Crim. App. 1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. See e.g., Ex
I 1
parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518 So. 2d 840 (Ala. Cram. App.
1 I
1988)., cert. denied, 486 U.S. 1036 (1988).
80
XIV. THE CLAIM THAT THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE THAT DID NOT HAVE A PROPER CHAIN OF CUSTODY.
40. This claim is contained in paragraph 204 and is answered as follows: a) This claim is procedurally barred from review because it was raised or addressed at trial. (R. 499500) Rule 32 . 2(a)(2), Ala.R.Crim . P. and Alabama
1 1 1 1 1 1 1 1
caselaw . provides that relief cannot be given on a claim which was raised or addressed at trial. See e . g., Daniels v . 673, 678 1171 State, su p ra ; Hollada y v. State, 629 So. 2d 1992 ), cert. denied , 510 U.S.
( Ala. Crim. App .
(1994). b) This claim is procedurally barred from review
because it was raised and addressed on appeal . Jackson v. State, 836 So. 2d 915, 953 - 955 (Ala. Crim. App. 1999 ). Rule 32.2(a )( 4), Ala.R.Crim . P. and Alabama
caselaw provide that relief cannot be given on a claim that was raised . or addressed on. appeal . arte Ford , 630 So . 2d 115 ( Ala. 1993 ), See e.g., Ex cert. denied,
114 S.Ct. 1664 1103, . 1105
( 1994 ); Baldwin v .
State, 539 So. 2d cert. denied, 539
( Ala. Crim. App ., 1988 ),
81
So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
(1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486 U.S. 1036 (1988). c) Alternatively, this claim is denied.
XV. THE CLAIM THAT THERE WAS INSUFFICIENT EVIDENCE TO CONVICT JACKSON OF CAPITAL MURDER.
41. This claim is contained in paragraphs 205-206 and is answered as follows: a) This claim is procedurally barred from review because it could have been but was not raised or
addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim which could have been raised or addressed at trial but was not. See e.g_, Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex ante Singleton, 548 So. 2d 167, 171 (Ala. 1989). b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson v. State, 836 So. 2d 915, 955-958 (Ala. Crim. App.
1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. See e.g., Ex parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied,
82
114.S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d
1 I
1103, 1105 (Ala. Crim. App.
1988 ), cert. denied, 539
So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486 U.S. 1036 (1988). c) Alternatively, this claim is denied.
XVI. THE CLAIM'THAT DOUBLE COUNTING ROBBERY AS AN ELEMENT OF THE CAPITAL OFFENSE AND AS AN AGGRAVATING CIRCUMSTANCE WAS IMPROPER.
42. This claim is contained in paragraphs 207-209 and is answered as follows: a) This claim is procedurally barred from review because it could have been but was not raised or addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim which could have been raised or addressed at
trial but was not. See e.2., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 So. 2d 167, 171 (Ala. 1989). b) This claim is procedurally barred from review because it was raised and addressed on appeal. Jackson v. State, 836 So. 2d 915, 958-959 (Ala. Crim. App. 1999).. Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama
83
caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. See e.g., Ex
parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206
(1989); Bell v.' State, 518 So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486 U.S. 1036 (1988).

XVII. THE CLAIM THAT ALABAMA' S MANNER OF EXECUTION CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.

a) The claim regarding electrocution is procedurally barred from review because it could have been but was not raised or addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim which could have
been raised or addressed at trial but was not. See e.2., Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 So. 2d 167, 171 (Ala. 1989).
84
b) The claim regarding electrocution is procedurally barred from review because it was raised and addressed on appeal. Jackson v. State, 836 So. 2d 915, 960-962 (Ala. Crim. App. 1999). Rule 32.2(a) (4) , Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. Seee.g., Ex parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988)..,-cert. denied, 539 So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989); Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486 U.S. 1036 (1988).
c) The claim regarding electrocution is moot because the State has changed to lethal injection as its means of execution. d) The claim regarding lethal injection must be dismissed, or in the alternative, amended for failing to meet the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P. e) This claim should also be dismissed pursuant to Ala. R. Crim. P. 32.7(d) for failure to state a
85
claim upon which relief can be granted because lethal injection has never been found to be cruel and unusual
1 I
punishment . 1105 ( 9th Cir.
See Poland v. Stewart , 117 F. 3d 1094, 1997) ( Lethal injection not found to be Rather , offering lethal
cruel and unusual punishment ).
injection as a method of execution has been deemed to correct any possibility of cruel and unusual punishment
in regards to other methods of execution. See Stewart v. LeGrand, 526 U.S. 115, 119 (1999). Thus, this claim is due to be dismissed.
f) Alternatively, this claim is denied.
XVIII: THE CLAIM THAT THE CUMULATIVE EFFECT OF ALL OF THE ABOVE ERRORS ENTITLE JACKSON TO RELIEF. 44. This claim is contained in paragraph 212 and is answered as follows:
a) This claim is procedurally barred from review because it could have been but was not raised or addressed at trial. Rule 32.2(a)(3) Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim which could have been raised or addressed at trial but was not. See Boyd v. State, 2003 WL
1 1
22220330, at *23 (Ala. Crim. App. Sept. 26, 2003)(holding that a claim regarding the cumulative
86
effect of alleged trial court errors could have been
raised at trial and,
therefore , is subject to
preclusion by Rule 32.2(a)(3), Ala.R.Crim.P.). See

e.g , Daniels v. State, 650 So. 2d 544, 551 (Ala. Crim. App. 1994); Ex parte Singleton, 548 So. 2d 167, 171 (Ala. 1989).
1 1 1 1 1
b) This claim is procedurally barred from review because it was raised or addressed on appeal. Jackson v. State, 836 So. 2d 915, 964 (Ala. Crim. App. 1999). Rule 32.2(a)(4), Ala.R.Crim.P. and Alabama caselaw provide that relief cannot be given on a claim that was raised or addressed on appeal. See e.g., Ex parte Ford, 630 So. 2d 115 (Ala. 1993), cert. denied, 114 S.Ct. 1664 (1994); Baldwin v. State, 539 So. 2d 1103, 1105 (Ala. Crim. App. 1988), cert. denied, 539 So. 2d 1103 (Ala. 1989), cert. denied, 110 S.Ct. 206 (1989);
Bell v. State, 518 So. 2d 840 (Ala. Crim. App. 1988), cert. denied, 486 U.S. 1036 (1988).
1
87
MISCELLANEOUS MATTERS
r
45. The responses herein are based on the
undersigned counsel's understanding of the grounds for relief alleged in the petition. If Jackson is attempting to state any other claims, Respondent requests a more definite statement of the issues and that it be given an opportunity to respond if the claims are amended in any way.
46. All averments in Jackson's petition that are not expressly admitted are denied.
1 1 1 1 1
47. The responses set out herein are pleaded separately and severally.
RESPONSE TO PRAYER FOR RELIEF
48. Jackson is not entitled to an evidentiary hearing, or relief, on those claims in the petition that are procedurally barred from review or due to be summarily dismissed. 49. Jackson is not entitled to an evidentiary hearing, or relief, on those claims in the petition which are not supported by a "full disclosure of the
I
88
1 1
factual basis" for such claims as required by Rule 32.6(b), Ala.R.Crim.P.

50. Jackson is not entitled to funds to present witnesses, experts, or other evidence. The fact that Jackson may be indigent is not relevant to this issue. See, Williams v. State, 783 So. 2d 108, 113 (Ala. Crim. App. 2000)(holding that "indigent defendants are not entitled to funds to hire experts to assist in postconviction litigation").
51. Jackson was properly convicted and sentenced
to death. He is not entitled to any relief from that conviction and death sentence.
Respectfully submitted,
Troy King Attorney General
74
eremf W. McIntire Assistant Attorney General Counsel of Record *
State of Alabama
1 I
May 31, 2004
Office of the Attorney General 11 South Union Street Montgomery, AL 36130-0152 (334) 353-4014 *
89
I hereby certify that on this nth day of May, 2004, I served a copy of the foregoing on counsel for Petitioner, by placing said copy in the United States Mail, first class, postage prepaid and addressed as follows:
Equal Justice Initiative of Alabama 122 Commerce Street Montgomery, AL 36104
1 1 1
"" McIntire ere W. YV Assistant Attorney General Counsel of Record *
ADDRESS OF COUNSEL: Office of the Attorney General Capital Litigation Division Alabama State House 11 South Union Street Montgomery, AL 36130 (334) 353-4014 *
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90
Page 2 of 48
We sdaw.
836 So.2d 915 (Cite as: 836 So-2d 915) Page I
P
Court of Criminal Appeals of Alabama.
11] Criminal Law 1030(1) 110kl030(l) Most Cited Cases

Although the lack of an objection at trial will not bar appellate review of an issue in a death penalty case, the lack of an objection will weigh against any claim of prejudice. Rules App.Proc., Rule 45A.
1 I
Shonelle Andre JACKSON STATE. CR-97-2050. May 28, 1999. Rehearing Denied July'9, 1999.
121 Criminal Law 01030(1) I10k1030(1) Most Cited Cases

The plain error exception to the contemporaneous objection rule is to be used sparingly , solely in those circumstances in which a miscarriage of justice would otherwise result . Rules App.Proc., Rule 45A. 131 Criminal Law 01035(2) I I0k1035(2) Most Cited Cases (Formerly 110k1036.1(3.1), 203k325) Capital murder defendant failed to preserve for appellate review claim that trial court improperly granted state's motion in limine preventing defense from presenting evidence that victim was drug dealer, and, thus , claim was subject to plain error review, where trial court indicated willingness to reconsider ruling on motion and defendant did not raise issue again . Rules App.Proc., Rule 45A. 14] Criminal Law 01044.2(1) 110k1044 . 2(l) Most Cited Cases When a party seeking to introduce evidence suffers an adverse ruling on the opposing party' s motion in limine , the adverse ruling alone, unless absolute or unconditional , does not preserve the issue for appellate review. 151 Criminal Law 01035(2) 110k1035(2) Most Cited Cases Grant of state' s motion in limine preventing defense from presenting evidence that capital murder victim was drug dealer did not constitute plain error, where allegation that murder was committed in retaliation for bad drug deal was not presented until after state filed motion, defendant failed to mention bad drug
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E
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Defendant was convicted in the Montgomery Circuit Court, No. CC-97-2300, William R. Gordon and Tracy S. McCooey, JJ., of capital murder and first-degree theft of property. He appealed. The Court of Criminal Appeals, Baschab, J., held that: (1) defendant voluntarily gave inculpatory statement to police; (2) trial court properly used defendant's juvenile record to assess weight it would assign to statutory mitigating circumstance of defendant's age at time of offense; ( 3) failure to instruct jury on lesser included offense of robbery did not constitute plain error; (4) denying motion for continuance to allow defendant time to secure attendance of allegedly critical witness was not an abuse of discretion ; ( 5) admission of photographs and videotapes did not constitute plain error, (6) granting state's challenges for cause as to prospective jurors did not constitute plain error; (7) evidence was sufficient to support conviction for capital offense of murder committed during firstdegree robbery; ( 8) using robbery as both element of capital offense and as aggravating circumstance did not violate double jeopardy; ( 9) trial court did unanimous jury's not improperly override sentencing recommendation; and (10) death sentence was proper. Affirmed. Remanded, Ala., 836 So.2d 973, remanded, Ala.Cr.App., 836 So.2d 978, opinion after remand, Ala., 836 So.2d 979.
West Headnotes
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836 So.2d 915 (Cite as . 836 So.2d 915)

deal in statements to police, and trial court indicated willingness to reconsider ruling on motion if defendant informed court that he intended to testify, but defendant failed to so inform court and failed to, raise issue again . Rules App.Proc., Rule 45A.
Page 2 [10] Criminal Law 1158(4) 110k1158(4) Most Cited Cases

Trial court's finding of voluntariness of confession need only be supported by a preponderance of the evidence. [111 Criminal Law 1158(4) 1 lOk1158(4) Most Cited Cases A trial court's determination as to whether a confession is voluntary will not be disturbed on appeal unless it is manifestly contrary to the great weight of the evidence. 1121 Criminal Law 1144.12 110k1144.12 Most Cited Cases In reviewing the correctness of a trial court's ruling on a motion to suppress, the Court of Criminal Appeals makes all the reasonable inferences and credibility choices supportive of the decision of the trial court. 113] Criminal Law 1158(4) 11 Ok1158(4) Most Cited Cases A trial court's ruling on a motion to suppress will not be disturbed unless it is palpably contrary to the great weight of the evidence. 1141 Criminal Law 412.1(1) I I0k412.1(1) Most Cited Cases 1141 Criminal Law 519(1) I I Ok519(1) Most Cited Cases The test for determining whether a confession or another inculpatory statement is involuntary is not whether the defendant bargained with the police, but whether in his discussions with the police, which may have included bargaining, the defendant's will was overborne by apprehension of harm or hope of favor. 1151 Criminal Law 412.1(1) 110k412. I (I) Most Cited Cases [ 15J Criminal Law 519(1) I IOk519(1) Most Cited Cases To determine if a defendant's will was overborne when he made a confession or another inculpatory
[61 Criminal Law 1044.2(1) 110k1044.2(1) Most Cited Cases

Capital murder defendant's claim that circumstances surrounding his interrogation were coercive was subject to plain error review, where defendant failed to allege specific facts in motion to suppress to support claim. Rules App.Proc., Rule 45A. 17] Criminal Law 412.1(4) I10k412.1(4) Most Cited Cases Detective's misrepresentation that capital murder defendant's fingerprints were found on soda cup recovered from stolen vehicle involved in murder did not render defendant's inculpatory statement involuntary, where defendant initiated contact with police, defendant was not subjected to lengthy interrogation, by making misrepresentation detective was attempting to inform defendant that he had already been connected with vehicle so that defendant would be truthful in making statement, defendant had previously been arrested on other charges, and there was no evidence that defendant was threatened or coerced or that officers promised defendant anything in exchange for statement. 181 Criminal Law 414 110k414 Most Cited Cases
181 Criminal Law 531(1) I10k531(1) Most Cited Cases

Confessions and inculpatory statements are presumed to be involuntary and inadmissible. 191 Criminal Law 517.1(2) 110k517.1(2) Most Cited Cases [9J Criminal Law 518(1) II Ok518(1) Most Cited Cases
For a confession to be properly admitted into evidence, the state must prove that the defendant was informed of his Miranda rights and that the confession was voluntarily given. U.S.C.A. Const.Amend. 5.
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836 So.2d 915 (Cite as: 836 So-2d 915)

statement, the court must assess the conduct of the law enforcement officials in creating pressure and the defendant's capacity to resist that pressure; the defendant' s personal characteristics as well as his prior experience with the criminal justice system are factors to be considered in determining the defendant's susceptibility to police pressures. 1161 Criminal Law X412.1(1) 110k412.1(l) Most Cited Cases
Page 3
juvenile record to assess weight it would assign to statutory mitigating circumstance of defendant's age at time of offense, rather than improperly treating aggravating juvenile record as nonstatutory circumstance to override jury's recommendation of life sentence and impose death sentence. 1201 Sentencing and Punishment X1714 350Hk1714 Most Cited Cases (201 Sentencing and Punishment 1721 350Hk1721 Most Cited Cases Trial court properly considered capital murder defendant's height and weight, in addition to other factors, including defendant's physical maturity, defendant's juvenile record, fact that defendant was father, fact that defendant used marijuana daily since age 14, and fact that defendant consumed alcohol on regular basis, in concluding that defendant was physically mature adult at time of offense, for purpose of determining weight to assign mitigating circumstance of age at time of offense. 1211 Sentencing and Punishment X1777 350Hkl777 Most Cited Cases The decision as to whether a particular mitigating circumstance in a capital murder prosecution is sufficiently proven by the evidence and the weight to be accorded to it rests with the trial court. (221 Sentencin g and Punishment X1785(3) 35OHkl 785(3) Most Cited Cases Trial court made individualized sentencing determination in capital murder proceeding; although court analyzed mitigating circumstance of age at time of offense in form similar to that used by Florida court, trial court incorporated facts and evidence presented in defendant's case. [23] Sentencing and Punishment X1784(3) 350Hk1784(3) Most Cited Cases Trial court did not base its sentencing determination on speculation about jurors' residual doubt, but instead carefully considered jury's recommendation in overriding that recommendation and sentencing capital murder defendant to death; although when trying to test reliability of advisory verdict trial court speculated that jury may have made recommendation based on belief that codefendant
1 1 1
[161 Criminal Law X521 110021 Most Cited Cases

Subtle forms of psychological manipulation, such as trickery or deception by the police, have not been considered sufficiently coercive, standing alone, to render a confession or incriminating statement involuntary; instead, the trial judge must examine the totality of the circumstances surrounding the statement to determine its voluntariness. 1171 Criminal Law 0=1035(10) 110k1035(10) Most Cited Cases
[171 Criminal Law X1044.2(1) 110kI044.2(1) Most Cited Cases

Capital murder defendant' s claim that trial court erred in admitting inculpatory statement without first conducting suppression hearing outside jury's presence was subject to plain error review; although defendant requested hearing in written motion , he did not subsequently object when trial court denied motion. Rules App.Proc., Rule 45A.
1181 Criminal Law X1035(10) 110k1035(l0) Most Cited Cases

Error, if any, in trial court's decision to deny motion to suppress capital murder defendant's inculpatory statement without conducting hearing outside presence of jury did not constitute plain error, given that statement was voluntarily made. Rules App.Proc., Rule 45. [191 Sentencing and Punishment X1706 350Hk1706 Most Cited Cases 1191 Sentencing and Punishment c'1714 350Hkl7l4 Most Cited Cases
Trial court properly used capital murder defendant's
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836 So.2d 915 (Cite as. 836 So.2d 915)

fired fatal shot, trial court ultimately concluded that assigning weight to advisory verdict based on testing reliability of advisory verdict was inappropriate. (241 Sentencing and Punishment 0:^329 350Hk329 Most Cited Cases Trial court is the sentencing authority.
Page 4
of robbery did not constitute plain error, where defendant contended that robbery was mere afterthought to murder and defendant was at least an accomplice to murder such that there was no rational basis on which jury could find defendant guilty of robbery but not of murder. Code 1975, 13A-I- 9(b); Rules App.Proc., Rule 45A.
[30J Criminal Law X594(3) I I Ok594(3) Most Cited Cases

Denying motion for continuance to allow defendant time to secure attendance of allegedly critical witness was not an abuse of discretion, where defendant failed to present any evidence that witness could be located and would testify, and moreover, witness's statement was admitted into evidence by stipulation of prosecution and defense. 1311 Criminal Law X586 110k586 Most Cited Cases 1311 Criminal Law X1151 1 l Oki 151 Most Cited Cases A motion for a continuance is addressed to the discretion of the trial court, and the trial court's ruling on the motion will not be disturbed unless there is an abuse of discretion. 1321 Criminal Law X594(1) 110k594(l) Most Cited Cases A trial court should grant a motion for continuance on the ground that a witness or evidence is absent if the following principles are established: (1) the expected evidence must be material and competent; (2) there must be a probability that the evidence will be forthcoming if the case is continued; and (3) the moving party must have exercised due diligence to secure the evidence. (331 Criminal Law X1035(3) I10k1035(3) Most Cited Cases (331 Criminal Law X1039 I I Oki 039 Most Cited Cases Claims that trial judge improperly left courtroom while jurors viewed capital murder defendant's videotaped statement and that trial judge improperly allowed court reporter to admonish jurors to avoid media exposure, not to discuss case, and to be back
[251 Sentencing and Punishment X1784(3) 350Hk1784(3) Most Cited Cases

Before overriding a jury's sentencing recommendation of life imprisonment and imposing the death penalty, a trial court must determine that the aggravating circumstances outweighed the mitigating circumstances. 1 26) Sentencing and Punishment X308 350Hk308 Most Cited Cases By necessity, when sentencing , a trial court may rely on information the jury did not hear. 1271 Sentencing and Punishment X1784(3) 350Hkl784(3) Most Cited Cases Trial court made adequate determination of culpability for capital murder, in overriding jury verdict, where trial court stated that evidence showed that defendant shot victim and that defendant was ringleader in offense. 1281 Criminal Law X1038.2 I lOk1038.2 Most Cited Cases
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]28] Criminal Law X1038.3 110ki038.3 Most Cited Cases Claim that trial court should have instructed jury on lesser included offense of robbery was subject to plain error review, where capital murder defendant did not request robbery instruction and did not object when instruction was not given. Rules App.Proc., Rule 45A. (291 Criminal Law '795(2.50) I10k795(2.50) Most Cited Cases Failure in prosecution for capital offense of murder committed during commission of first-degree robbery to instruct jury on lesser included offense
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836 So.2d 915 (Cite as: 836 So - 2d 915)

at 9:30 next morning were subject to plain error review, where defendant failed to present claims to trial court. Rules App.Proc., Rule 45A.
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134] Criminal Law 1035(3) 11Oki 035(3) Most Cited Cases 134] Criminal Law 1039 I I Oki 039 Most Cited Cases
Trial judge's actions of leaving courtroom while jurors viewed capital murder defendant's videotaped statement and of allowing court reporter to admonish jurors to avoid media exposure, not to discuss case , and to be back at 9:30 next morning did not constitute plain error , where judge was not absent during counsels' arguments , examination of witnesses, or handing down of verdict, judge stated that he had previously viewed videotape and instructed jurors about videotape before leaving, court adjourned for day immediately after videotape was played, court reporter made same comments to jurors that judge had made when court previously adjourned for day , and defendant failed to allege that error occurred during judge's absence. Rules App.Proc., Rule 45A. 1351 Criminal Law 1166.21 11Oki166.21 Most Cited Cases
While evidence corroborating an accomplice's testimony need not be strong , it must be of be inconsistent with substantive character, defendant' s innocence, and do more than raise a suspicion of guilt. Code 1975, 12-21-222.
1381 Criminal Law 511.2 I IOk5 l l.2 Most Cited Cases

The means for determining if there is sufficient evidence to corroborate an accomplice 's testimony is to set aside the accomplice's testimony and determine whether the remaining evidence tends to connect the defendant with the commission of the offense. Code 1975, 12-21-222.
1391 Criminal Law 741(5) 110k741(5) Most Cited Cases

Whether evidence corroborating an accomplice's testimony exists is a question of law to be resolved by the trial court; the evidence's probative force and sufficiency are jury questions. Code 1975, 12-21-222. 1401 Criminal Law 511.3 110k511.3 Most Cited Cases Circumstantial evidence is sufficient to show corroboration of an accomplice's testimony. Code 1975, 12-21-222. 1411 Criminal Law 511.1(1) I I0k511.1(1) Most Cited Cases A combination of facts may be sufficient to corroborate an accomplice ' s testimony even though each single fact, standing by itself, is insufficient. Code 1975, 12-21-222. 1421 Criminal Law 511.1(1) 110k5 l 1.1 (1) Most Cited Cases Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by an accomplice . Code 1975, 12-21-222.
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The rule that it is the presiding judge's duty to be visibly present during every moment in a trial so that he can always see and hear all that is being said and done does not mandate a reversal in every instance of his absence.
1361 Criminal Law 511.1(7) I10k511.1(7) Most Cited Cases

Evidence was sufficient to corroborate accomplices' testimony concerning robbery element of capital murder; in addition to defendant's conduct and inculpatory statements to law enforcement officials, state introduced eyewitness testimony and physical evidence connecting defendant with offense. Code 1975, 12-21-222.
1371 Criminal Law 511.1(2.1) I IOk5l l.1(2.l) Most Cited Cases 1371 Criminal Law 511.1(3) I lOk5l 1.1(3) Most Cited Cases
1431 Criminal Law 511.1(7) I IOk511.1(7) Most Cited Cases

Even assuming codefendants were accomplices to capital murder, the state was not required to present corroborative evidence as to each element of the
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offense or as to each fact about which accomplices testified; rather, state was simply required to present other evidence that tended to connect defendant to commission of the offense. Code 1975, 12-21-222.
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subject to plain error review, where capital murder defendant failed to present claim to trial court. Rules App.Proc_, Rule 45A.
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1491 Criminal Law X1038.1(5) 110k1038.1(5) Most Cited Cases

Reasonable doubt instruction , providing in part that reasonable doubt may arise from all , part of, or lack of evidence, that state does not have to prove defendant guilty beyond all doubt, beyond shadow of doubt, or to mathematical certainty , and that proof beyond a reasonable doubt is proof of such convincing character that you will be willing to rely and act upon it without hesitation in most important of your affairs , did not improperly lower state's burden of proof and did not constitute plain error, where there was no reasonable likelihood that jury applied instruction in manner that would violate defendant's constitutional rights . U.S.C.A. Const.Amend. 14; Rules App.Proc ., Rule 45A.
[44] Criminal Law 1038.2 I10k1038.2 Most Cited Cases 1441 Criminal Law X1038.3 110k1038.3 Most Cited Cases
Claim that trial court erred by failing to instruct jury that accomplice testimony must be corroborated by other evidence was subject to plain error review, where capital murder defendant failed to request such instruction and did not object when instruction was not given. Rules App.Proc., Rule 45A.
1451 Criminal Law X1038.2 110k1038.2 Most Cited Cases

Failing to instruct jury in capital murder prosecution that accomplice testimony must be corroborated by other evidence did not constitute plain error, where state presented sufficient evidence to corroborate accomplice testimony. Rules App.Proc., Rule 45A.
1501 Criminal Law. 1036.1(6) 110k1036. 1(6) Most Cited Cases

Clain that trial court improperly admitted in capital murder prosecution photographs and videotapes was subject to plain error review, where defendant failed to object to their admission at trial. Rules App.Proc., Rule 45A. 1511 Criminal Law X1036.1(6) 110k1036.1(6) Most Cited Cases Admission of photographs depicting character and location of capital murder victim's wounds did not constitute plain error, where photographs were not unnecessarily gruesome or gory and defendant failed to show how admission of photographs affected or probably affected his substantial rights. Rules App.Proc., Rule 45A.
1461 Criminal Law X1035(5) 110kl035(5) Most Cited Cases

Claim that state improperly used its peremptory challenges to discriminate on basis of gender was subject to plain error review, where capital murder defendant failed to raise claim in trial court. Rules App.Proc., Rule 45A. 1471 Criminal Law 1115(2) 1 1Ok1115(2) Most Cited Cases Trial court's finding that capital murder defendant failed to establish prima facie case of race and gender discrimination in state's exercise of peremptory challenges did not constitute reversible error, where record failed to include documents showing race or gender of prospective jurors or copies of questionnaires completed by jurors. 1481 Criminal Law 1038.1(5) 110k1038.1(5) Most Cited Cases Claim that trial court's reasonable doubt instruction improperly lowered state's burden of proof was
152] Criminal Law X1036.1(6) 110kl036.1(6) Most Cited Cases

Admission in capital murder prosecution of photographs and videotapes depicting crime scene, vehicles involved in offense, and recovered evidence did not constitute plain error, where photographs and videotapes were relevant and defendant failed to show how admission of photographs and videotapes affected or probably affected his substantial rights. Rules App.Proc.,
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Rule 45A.
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[531 Criminal Law C=438(1) 110k438(l) Most Cited Cases

Photographic evidence is admissible if it tends to prove or disprove some disputed or material issue, to illustrate some relevant fact or evidence, or to corroborate or dispute other evidence in the case. [541 Criminal Law X438(1) 110k438(l) Most Cited Cases Photographs that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence.
expressed objections to imposition of death penalty was subject to plain en-or review, where capital murder defendant failed to present claim to trial court. Rules App.Proc., Rule 45A.
1601 Criminal Law 01035(5) 110k1035(5) Most Cited Cases

Granting state's challenges for cause as to prospective jurors did not constitute plain error, where prospective jurors indicated either that they could not vote on imposition of punishment or that they would not vote to impose death penalty regardless of evidence produced. Code 1975, 12-16- 152 ; Rules App. Proc ., Rule 45A.
1551 Criminal Law X438(7) 110k438(7) Most Cited Cases

Photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors. 1561 Criminal Law X438(5.1) 110k438(5.1) Most Cited Cases
1611 Jury 0108 230k108 Most Cited Cases

The proper standard for determining whether a prospective juror may be excluded for cause because of his views on capital punishment is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Code 1975, 12-16- 152.
[561 Criminal Law C=675 110k675 Most Cited Cases

Photographs depicting the character and location of wounds on a deceased's body are admissible even though they are cumulative and are based on undisputed matters. 1571 Criminal Law X438(7) 110k438(7) Most Cited Cases
1621 Jury X132 230k 132 Most Cited Cases

A prospective juror's bias against the death penalty, for the .purpose of determining whether the prospective juror may be removed for cause, need not be proved with unmistakable clarity, because such bias cannot be reduced to question and answer sessions which obtain results in the manner of a catechism. Code 1975, 12-16-152.
The fact that a photograph is gruesome is not grounds to exclude it as long as the photograph sheds light on issues being tried.
1631 Jury 108 230k108 Most Cited Cases

A trial judge's finding on whether a particular juror is biased against the death penalty , and, thus, removable for cause is based upon a determination of demeanor and credibility that is peculiarly within the trial judge's province . Code 1975, 12-16-152. 1641 Criminal Law 1152(2) I IOkl 152(2) Most Cited Cases A trial court's rulings on juror challenges for cause based on bias are entitled to great weight and will not be disturbed on appeal unless clearly shown to
1581 Criminal Law C=438(4) 110k438(4) Most Cited Cases

Photographs that depict the crime scene are relevant, and, therefore, admissible. 1591 Criminal Law X1035(5) 1 10k1035(5) Most Cited Cases
I I
Claim that trial court improperly granted state's challenges for cause as to prospective jurors who
AnnSCRnnnnnnl 1F.Qnnn;AS]427R
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836 So.2d 915 (Cite as : 836 So.2d 915) be an abuse of discretion . Code 1975, 12-16-152. (651 Jury E 108 230k108 Most Cited Cases
A blanket declaration of support of or opposition to the death penalty is not necessary for a trial judge to disqualify a juror for cause. Code 1975, 12-16-152. [661 Criminal Law 1035(5) 110ki035(5) Most Cited Cases Claim that exclusion of prospective jurors violated capital murder defendant's right to be tried by jury comprised of fair cross-section of community was subject to plain error review, where defendant failed to present claim to trial court. Rules App.Proc., Rule 45A.
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170] Criminal Law X404.20 110k404.20 Most Cited Cases

In order to establish a proper chain of custody, the state must show to a reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain. (71] Criminal Law X404.20 110k404.20 Most Cited Cases The purpose for requiring that a chain of custody of evidence be shown is to establish to a reasonable probability that there has been no tampering with the evidence. 1721 Criminal Law X404.30 110k404.30 Most Cited Cases While each link in the chain of custody of an item must be identified, it is not necessary that each link testify in order to prove a complete chain of custody. 1731 Criminal Law X40430 110k404.30 Most Cited Cases Evidence that an item has been sealed is adequate circumstantial evidence to establish the handling and safeguarding of the item, for the purpose of showing the chain of custody.
(671 Jury x33(2.15) 230k33(2.15) Most Cited Cases

Exclusion of prospective jurors who expressed opposition to death penalty did not violate capital murder defendant's right to be tried by jury comprised of fair cross-section of community; group defined solely in terms of shared attitude that would substantially impair group members from performing juror duties did not constitute distinctive group in community, subject to protection. Rules App.Proc., Rule 45A.
1681 Criminal Law X3883 110k388.3 Most Cited Cases

At most, absence of forensic investigator's testimony that he took bullet from physician who performed autopsy to state's firearms expert went to weight and credibility of the evidence related to bullet, rather than its admissibility in capital murder prosecution, where state presented sufficient evidence showing that bullet was in same condition when it was delivered to expert as it was when physician removed it from victim's body.

Even if there was break in chain of custody for bullet, bullet was admissible in capital murder prosecution, where physician who performed autopsy identified bullet that was introduced into evidence as the one he removed from victim's body. Code 1975, 12-21-13. 1751 Homicide 1165 203k1165 Most Cited Cases (Formerly 203k 1163, 203k235) Evidence was sufficient to support conviction for capital offense of murder committed during first-degree robbery; defendant and codefendants decided to rob victim while riding around in vehicle, defendant and codefendants caused victim's vehicle to strike their vehicle, victim was shot, and codefendants drove victim's vehicle to farm and
(69] Criminal Law X404.30 110k404.30 Most Cited Cases

Proof of an unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to assure the authenticity of the item.
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836 So.2d 915 (Cite as: 836 So -2d 915) took vehicle's stereo . Code 1975, 13A- 5-40(a)(2) 1801 Homicide X915 203k915 Most Cited Cases, (Formerly 203k152)
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[761 Criminal Law X29(14) 110k29(14) Most Cited Cases (Formerly 203k607, 203k18(5)) The capital crime of robbery when a victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating in the act of intentionally killing the victim ; the offense consists of two elements, robbing and intentional killing . Code 1975, 13A-5-40( a)(2).
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The jury may infer from the facts and circumstances that a robbery began when the accused attacked the victim and that the capital offense of murder-robbery was consummated when the defendant took the victim's property and fled. Code 1975, 13A-5-40(a)(2). 181] Homicide X908 203k908 Most Cited Cases (Formerly 203k145) Defendant's intent to rob a . victim can be inferred, for the purpose of a prosecution for the capital offense of murder-robbery , when the intervening time, if any, between the killing and robbery was part of a continuous chain of events . Code 1975, 13A-5-40( a)(2). 1821 Criminal Law X1144.13(3) 1 IOk1144.13(3) Most Cited Cases 1821 Criminal Law C= I 144.13(4) I IOk1144.13(4) Most Cited Cases 1821 Criminal Law X1144.13(5) I IOkI 144.13(5) Most Cited Cases In determining the sufficiency of the evidence to sustain a conviction, the Court of Criminal Appeals must accept as true the evidence introduced by the state , accord the state all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.
[771 Homicide 607 203k607 Most Cited Cases (Formerly 203k 18(5))
Although an intentional murder must occur during the course of the robbery in question in order to establish the capital offense of murder committed during a first-degree robbery, the taking of the property of the victim need not occur prior to the killing. Code 1975, 13A-5-40(a)(2). [781 Homicide X607 203k607 Most Cited Cases (Formerly 203k 18(5)) The fact that a victim was dead at the time property was taken would not militate against a finding of robbery, for the purpose of establishing the capital offense of murder committed during a first-degree robbery, if the intervening time between the murder and the taking formed a continuous chain of events. Code 1975, 13A-5-40(a)(2).
1791 Homicide x607 203k607 Most Cited Cases (Formerly 203k18(5))

1791 Homicide 1325 203k1325 Most Cited Cases (Formerly 203k282) Although a robbery committed as a mere afterthought and unrelated to a murder will not sustain a conviction for the capital offense of murder-robbery, the question of a defendant' s intent at the time of the commission of the crime is usually an issue for the jury to resolve. Code 1975, 13A-5-40( a)(2).
1831 Criminal Law X1159.2(1) I I OkI 159.2(1) Most Cited Cases

The role of appellate courts is not to say what the facts are, but to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury. 1841 Criminal Law X1159.2(2) 1 l OkI 159.2(2) Most Cited Cases Evidence. An appellate court may interfere with a jury's verdict only when the court reaches a clear conclusion that the jury's finding and judgment are
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836 So.2d 915 (Cite as: 836 So.2d 915)

wrong.
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(851 Criminal Law 1159.3(4) 11Oki 159.3(4) Most Cited Cases

When there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.
protection in violation of Fifth, Sixth, Eighth, and Fourteenth Amendments ,' Alabama Constitution, and Alabama law. U.S.C.A. Const. Amends. 5, 6. 8, 14; Code 1972, 15-12-21(d).
189] Sentencing and Punishment X1796 35OHk 1796 Most Cited Cases
Electrocution as means of capital punishment does not constitute cruel and unusual punishment. U.S.C.A. Const.Amend. 8. (90J Sentencing and Punishment X1796 350Hk1796 Most Cited Cases Alabama's method of electrocution as means of capital punishment does not constitute cruel and unusual punishment ; there is no showing that the state's method of enforcing a death sentence inflicts any more pain than is absolutely necessary. U.S.C.A. Const.Amend. 8. 1911 Sentencing and Punishment X1784(3) 350Hk 1784(3) Most Cited Cases 1911 Sentencing and Punishment X1785(3) 350Hk1785(3) Most Cited Cases Trial court did not improperly override jury's unanimous recommendation that capital murder defendant be sentenced to imprisonment for life without possibility of parole for capital conviction, where trial court complied with death penalty statute's sentencing requirements in overriding jury's verdict and specifically explained in sentencing order reasons for overriding jury's verdict. Code 1975, 13A-5-47(e). 1921 Sentencing and Punishment X1784(3) 350Hk1784(3) Most Cited Cases 1921 Sentencing and Punishment X1785(3) 350Hkl785(3) Most Cited Cases Death sentence was not imposed as result of influence of passion, prejudice, or any other arbitrary factor; trial court carefully considered jury's advisory verdict of life imprisonment and weighed aggravating circumstances, including that defendant committed capital offense while he or accomplice was engaged in commission of robbery and that defendant committed offense while under sentence of imprisonment, against mitigating
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1861 Criminal Law X552(1) 110k552(1) Most Cited Cases 1861 Criminal Law C=552(3) 110k552(3) Most Cited Cases
Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.
1871 Double Jeopardy X30 l35Hk30 Most Cited Cases

Using robbery as both element of capital offense of murder committed during first -degree robbery and as aggravating circumstance during sentencing did not violate double jeopardy. U.S.C.A. Const.Amend. 5; Code 1975, fi 13A-5- 40(a)(2), 13A-5-49, 13A-5-50. 1881 Attorney and Client 131 45k 131 Most Cited Cases 1881 Constitutional Law 52 92k52 Most Cited Cases
1881 Constitutional Law X242 92k242 Most Cited Cases 1881 Criminal Law X641.12(3) 110k641.12(3) Most Cited Cases 1881 Eminent Domain X2(1.1) 148k2(l.1) Most Cited Cases Statute limiting court-appointed attorney fees to $1,000 for out-of-court work for each phase of capital trial does not violate separation of powers doctrine, constitute taking without just compensation, deprive indigent capital defendants of effective assistance of counsel, or deny equal
1 1 I
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circumstances, including that defendant was 18 years old at time of offense , that defendant voluntarily surrendered to police , that defendant did not attempt to evade probation officer once he was declared delinquent, that defendant was truthful to his mother, that defendant was not violent toward his girlfriend , that according to aunt defendant was truthful, and that defendant exhibited remorse. Code 1975, ti 13A-5-49(1, 4), 13A-5-51(7), 13A-5-53(b)(1).
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BASCHAI3, Judge.
The appellant, Shonelle Andre Jackson, was convicted of capital murder for the killing of Lerick Moore. The murder was made capital because it occurred during the commission of a robbery in the first degree. See 13A- 5-40( a)(2), Ala.Code 1975. The appellant was also convicted of first-degree theft of property for stealing a vehicle owned by Lottie Flowers. See 13A-8-3, Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 12-0, that the. appellant be sentenced to life imprisonment without the possibility of parole for the murder of Lefrick Moore. The trial court overrode the jury's recommendation and sentenced the appellant to death by electrocution for the capital offense. [FNIJ The trial court also sentenced the appellant, as a habitual offender with three prior felony convictions, to life imprisonment for the theft conviction. See 13A-5-9(c)(2), Ala.Code 1975.
1931 Sentencing and Punishment 01681 350Hk 1681 Most Cited Cases
1931 Sentencing and Punishment1704 350Hkl704 Most Cited Cases 1931 Sentencing and Punishment X1714 350Hkl714 Most Cited Cases Death sentence was appropriate for defendant, who committed capital offense of murder committed during first-degree robbery, given aggravating circumstances , including that defendant committed capital offense while he or accomplice was engaged in commission of robbery and that defendant committed offense while under sentence of and mitigating circumstances, imprisonment, including that defendant was 18 years old at time of offense, that defendant voluntarily surrendered to police, that defendant did not attempt to evade probation officer once he was declared delinquent, that defendant was truthful to his mother, that defendant was not violent toward his girlfriend, that according to aunt defendant was truthful , and that defendant exhibited remorse . Code 1975, 13A-5-49(1, 4), 13A-5-51(7), 13A-5-53(b)(2). [941 Sentencing and Punishment 1681 35014k1681 Most Cited Cases Imposing death sentence on defendant, who was convicted of capital offense of murder committed during first-degree robbery, was neither disproportionate nor excessive, given that similar crimes were being punished by death throughout state. Code 1975, 13A-5-53(b)(3). *925 Bryan A. Stevenson and Randall Scott Susskind, Montgomery, for appellant. Bill Pryor, atty. gen., and Kathryn D. Anderson, asst. atty. gen., for appellee.
FNI. The trial court's sentencing order is attached as an Appendix to this opinion.
The evidence showed that, on April 25, 1997, the appellant, Antonio Barnes, Eric Williams, and Christopher Rudolph were riding around the western area of Montgomery in a stolen, gray Buick LeSabre automobile. The appellant had previously asked Barnes to steal a vehicle for him, and Barnes had done so. The appellant was driving, and the men were looking for a person named "Cocomo," who had slapped the appellant the previous night. The appellant, Barnes, and Rudolph were armed with pistols, and Williams was armed with a shotgun. As they were riding around, the young men noticed that Lefrick Moore, who was driving a red Chevrolet Caprice automobile, had a good stereo system in his vehicle, and they decided to rob him. They followed him for some time. While they were following Moore, the appellant purchased a soft drink from a Dairy Queen restaurant. When they were on the service road leading into the Smiley Court housing area, the appellant pulled the Buick in front of Moore's vehicle, causing Moore's vehicle to hit the Buick. The appellant got out of the Buick and shot at Moore. Williams also fired the shotgun. *926 Moore and his passenger, Gerard Burdette,
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got out of their vehicle and ran. Burdette ran to the Sylvest Farms plant to get help. Moore, who had been shot, fell facedown in the street and died. The coroner testified that the cause of death was a gunshot wound to his chest. Based on these events, the appellant, Barnes , Williams, and Rudolph were indicted for capital murder in connection with Moore's death.
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The evidence showed that Lottie Flowers' gray 1991 Buick LeSabre was stolen on April 25, 1997, from the parking lot of the Brookview Apartments. When police later recovered it, it had a broken window, a broken steering column , and a dent on the passenger side . Officers also ,recovered a Dairy Queen cup from the vehicle. Testimony indicated that it was the vehicle driven by the appellant and his codefendants in connection with the murder. Victoria Moss testified that, on April 25, 1997, as she was driving near the Smiley Court area, she saw a gray car "cut" in front of a red car. Shortly thereafter, one of the occupants of the red car got out of the vehicle and ran toward a nearby housing area . She also saw someone, who was later identified as the victim, running toward her vehicle, but he fell facedown in the street before he reached her vehicle. She went to check on the man, but the gray car started corning toward her very quickly. She ran out of the road and into the grass until the gray car drove away. She checked on the victim and then went to get help. Leroy Geary, who was employed nearby at the Sylvest Farms plant , also saw the gray car " cut" in front of the red car and run the red car into the curb. He then saw someone fire a weapon at the red car from the driver's side of the gray car. He described the shot as a loud bang , like one from a shotgun, and stated that it was quickly followed by the sound of shattering glass and what sounded like at least two rounds fired from a pistol . He also observed someone, who was later identified as Burdette, running toward the Sylvest Farms facility. Burdette stated that he had been in one of the vehicles involved in the confrontation. A.C. Porterfield owns a farm on Old Hayneville Road. In April 1997, he saw the victim's vehicle parked in the pasture on his farm and saw three young black men walking around the vehicle. He told them to leave, and he telephoned a friend who worked for the Montgomery Police Department.
During their investigation of the murder , police officers found an empty .380 MagTech brand shell casing at the scene of the murder ; amber glass in the road at the crime scene that matched the blinker light on the victim' s car; a box containing 35 unfired rounds of .380 MagTech brand ammunition from the appellant' s residence ; Flowers' vehicle, which had a broken steering column, a broken window , and a dent in the side; a Dairy Queen cup in Flowers ' vehicle; the front of a stereo on a car parked beside the victim 's car in Porteifield's pasture; and the victim's vehicle , from which the stereo was missing . The police also recovered the victim's stereo from Williams' girlfriend's residence. Joe Saloom, a firearms and toolmarks examiner employed by the Alabama Department of Forensic Sciences , examined the empty shell casing found at the scene of the murder, the bullet recovered from the victim's body, and the box of ammunition found at the appellant' s residence. He testified that the empty shell casing was a MagTech shell, like die ones in the box recovered from the appellant's residence. He explained that the bullet recovered from the victim's body was a tired "jacketed" bullet that was consistent with *927 . 380 caliber. He also testified that it would have been consistent with coming from the empty shell casing the officers recovered from the scene. He further explained that the shell casing would have been ejected when the gun was fired. Antonio Barnes , who is also known as Deon Barnes, testified that the appellant asked him to steal a car for him and that they left Trenholm Court and went to the Brookview Apartments to do so. While there, he broke the back window and the steering column and stole Lottie Flowers ' gray 1991 Buick LeSabre. The appellant was with him at the time , but he rode back to Trenholm Court with another person . Barnes drove the car back to Trenholm Court and met the appellant , who then started driving the vehicle. While there, they picked up Christopher Rudolph and Eric Williams. Barnes had a . 357 magnum handgun the appellant had given him earlier , the appellant had a .380 pistol, Rudolph had a 9mm pistol , and Williams did not have a weapon . They went by Barnes' sisterin-law's house, where they obtained a shotgun for Williams. The appellant told Barnes that Cocomo had slapped him at a club and that he wanted to "holler
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at" Cocomo, so they drove around the western part of Montgomery looking for Cocomo. Barnes testified that they drove around for about 20 to 30 minutes looking for Cocomo, but that they did not find him. They then drove to the Smiley Court area, where they saw the victim driving his vehicle. Rudolph recognized the car and told them that the car had a good stereo system. At that point, the appellant told the other three that they were about to rob the victim. Barnes and Rudolph asked the appellant to take them back to Trenholm Court, but the appellant refused to do so. The appellant followed the victim for a while and, during that time, bought a soft drink from Dairy Queen. When they were on the service road leading to Smiley Court, the appellant sped around the victim's vehicle and cut in front of it, causing the victim's vehicle to tun into the Buick. The appellant and Williams jumped out of the vehicle with their weapons, and Barnes heard two shots. He saw the victim and his passenger running away from the vehicle. Barnes and Williams then got into the victim's vehicle, drove it to a farm off Old Hayneville Road, and parked it in a pasture. Williams pulled the stereo out of the vehicle and went through the trunk of the vehicle. They left the victim's vehicle parked in the pasture. Barnes testified that, when he saw the appellant the next day and told him the victim had died, the appellant did not seem worried about it. Instead, he wanted to know where the victim's vehicle was. The appellant, Barnes , and another person went to the pasture where the vehicle was parked. The appellant stated that he wanted to take the motor out of the vehicle and strip the rest of the vehicle. However, Mr. Porterfield arrived about that time, and they left before they could strip the vehicle. Eric Williams testified that, on the day of the murder, the appellant asked him if he knew how to steal a car. He responded that he did not, but told him Antonio Barnes did. Later, the appellant and Barnes approached him driving a gray Buick, and he got into the vehicle with them. Rudolph also got into the vehicle with them. The appellant was driving and had a .380 pistol with him. Barnes and Rudolph also had weapons. Because Williams did not have a weapon when he got into the car, they retrieved a shotgun for him.
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had previously slapped the appellant. He, the appellant, Barnes, and Rudolph *928 rode around looking for Cocomo because the appellant wanted to talk to Cocomo about slapping him. They saw Cocomo at one point, but Cocomo did not stop his vehicle. After that, the appellant told the three passengers he wanted to rob someone . Williams asked the appellant to take him back to Trenholm Court, but the appellant refused to do so. As they were driving, they saw the victim, who was driving a red Chevrolet Caprice. At that point, the appellant told them they were going to rob him. They followed the victim for a while, during which time the appellant purchased a soft drink from Dairy Queen. On the service road leading into Smiley Court , the appellant pulled the Buick in front of the victim's vehicle, and the victim's vehicle ran into the Buick. The appellant jumped out, started shooting, and said, "M----- f-----, no need in you running now." (R. 385.) The victim and his passenger got out of the Caprice and ran. Williams heard two shots. When he saw cars approaching the scene, he shot the shotgun into the air. After the shooting, Williams and Barnes got into the victim's vehicle and left. Williams was driving. They drove to Old Hayneville Road and parked the vehicle in a pasture . He testified that Barnes took the stereo out of the vehicle and that they left the vehicle parked in the pasture and returned to Trenholm Court. When Williams saw the appellant again that night, the appellant was returning from a club. The next day, when he told the appellant that the victim had died , the appellant responded that he "didn't give a f--- because he didn ' t stay where we stayed at." (R. 392.) Christopher Rudolph also testified about the events surrounding the murder. He got into the gray Buick, which the appellant was driving. At that time, he had a 9mm pistol, the appellant had a .380 pistol, and Barnes had a .357 magnum handgun. Williams did not have a gun. However, the appellant asked Rudolph if he had another gun because he and Williams had some business to take care of with a person named Cocomo. They picked up a shotgun he owned and gave it to Williams, and then drove around the west side of Montgomery looking for Cocomo. They saw Cocomo at one point, but he drove away. Rudolph remembered a discussion about
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Williams testified that a person named Cocomo
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committing a robbery, but he did not remember who initiated the discussion. When they were near the Smiley Court area, they saw the victim. He noticed loud music coming from the victim's car. The appellant said he wanted to rob the victim, so they followed his car for a while. While they were following the victim, the appellant bought a soft drink from a Dairy Queen. When they were on the Smiley Court service road, the appellant pulled the Buick in front of the victim's vehicle, causing the victim's vehicle to hit the Buick. The appellant got out and shot once, breaking the glass in the victim's vehicle. The victim and his passenger ran away from the victim's vehicle. Williams then got out of the car and shot into the air. The.appellant got back into the car and drove to where the victim had fallen facedown in the street. The appellant stated that he wanted to go through the victim's pockets, but Rudolph stopped him from doing so. Thereafter, he and the appellant went by a club, but it was closed, so the appellant dropped him off and left. He did not see the appellant again after that. Detective Andrew Signore, who was employed by the Montgomery Police Department, led the investigation in the case . He testified that Barnes, Williams, and Rudolph turned themselves in and made statements to the police about the murder. *929 Barnes made a statement on April 27, 1997, and Williams and Rudolph made statements on April 28, 1997. Signore testified that the appellant voluntarily went to the police station on April 29, 1997, at approximately 2:05 p.m. Signore advised the appellant of his Miranda rights at approximately 2:16 p.m., and the appellant voluntarily waived those rights. Detective C.D. Phillips was present the entire time. Signore testified that neither officer made any threats or promises to the appellant. While there, the appellant gave several different accounts about what happened on the day of the murder. He initially denied any involvement in the murder and denied being with the three codefendants at the time of the murder. However, he admitted that he had been with one of the codefendants earlier in the afternoon or evening looking for Cocomo. Signore then told the appellant that the officers had recovered a Dairy Queen cup from Flowers' vehicle and that his fingerprints were on the cup. At that point , the appellant admitted he had been in
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Flowers' vehicle, but he denied being involved in the murder. Signore testified that the appellant needed a "reality check" because the other codefendants had already all testified that the appellant had been driving the stolen vehicle and had stopped at Dairy Queen to buy a drink. Although he knew that the officers had recovered a Dairy Queen cup from the vehicle, he did not know whether the appellant's fingerprints were on the cup. The appellant then admitted that he had asked Barnes to steal a vehicle, that he went to the Brookview Apartments with Barnes to steal the Buick, and that he had been driving around the west side of Montgomery in the vehicle. However, he stated that he separated from the codefendants before the murder. The officers videotaped and prepared a transcript of this statement. After they videotaped his statement, the appellant asked if he could change his statement and admitted that he had not told the officers the truth. He then admitted that he had been with the three codefendants and that he had had a .380 pistol that evening . However, he said that Barnes was driving. In most other respects, his statement matched those of his three codefendants. When he asked whether the victim was killed with a shotgun, the officers did not respond, and the conversation ended. (1][21 The appellant raises several issues on appeal that he did not present to the trial court. The lack of an objection at trial will not bar our review of an issue in a case involving the death penalty. However, it will weigh against any claim of prejudice. Er parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). Thus, we have reviewed the record for any error, whether plain or preserved. See Rule 45A, Ala. R.App. P. Rule 45A provides: "In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review ... whenever such error has or probably has adversely affected the substantial right of the appellant." "[This] plain-error exception to the contemporaneous-objection rule is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.' " United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 n. 14 (1982)).
I I
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[3] The appellant's first argument is that the trial court improperly granted the State's motion in limine, which prevented * 930 die defense from presenting evidence that the victim was a drug dealer. He contends that the motive for the murder was retaliation for a bad drug deal, not robbery. Thus, he argues that the ruling effectively prevented him from presenting a defense, from cross-examining witnesses , from testifying, and from presenting mitigation evidence. He further contends that such evidence would have shown the weakness of the State's contention that the murder occurred during a robbery, whitb made the murder capital , and that the jury could have determined that he was guilty only of intentional murder, a noncapital offense. The State filed a pretrial motion in limine asking the trial court to prevent the defense from introducing evidence that the victim had been a drug dealer, contending that such evidence would be irrelevant and immaterial . In response, the defense argued that such evidence was relevant to the motive for the confrontation and would be relevant in sentencing . The trial court conducted a hearing on the motion . At that time , defense counsel argued that he wanted to cross-examine witnesses about whether they knew the victim was a drug dealer. He also stated that the defense theory was that a bad drug deal, and not robbery, was the motive for the murder. The trial court granted the State's motion, On the day the trial began, the following occurred: "[Defense counsel ]: Judge, we would ask the Court to reconsider the ruling on the motion in limine and at least withhold ruling until maybe the sentencing phase . Our client-- we have not made a decision as to whether we are going to allow our client to testify or not. His testimony, if he does testify, will be diametrically opposed to the facts--underlying facts as the district attorney has presented them, which creates a conflict and a jury question. His testimony deals with a drug deal. I don't want to be put in a situation where we can't ask our client questions about what really happened in this case . We would be limited, to have his testimony limited. "The Court: Well, you know, that's the first I have heard of that, for the record. It's not a criticism . It's just for the record. You know, I
will-- you know, if and when you decide whether or not your client is going to testify, I will let you ask me to reconsider it at that point." (R. 37-38.) The defense did not raise the issue again and did not ask the trial court to reconsider its ruling. [4] Where a party seeking , to introduce evidence suffers an adverse ruling on the opposing party's motion in limine , the adverse ruling alone, unless absolute or unconditional , does not preserve the issue for appellate review. Morton v. State, 651 So.2d 42 (Ala.Cr.App.1994). In this case , because the trial court indicated its willingness to reconsider its ruling on the motion, that ruling was not absolute . Therefore, the appellant "was required to offer the testimony into evidence and obtain a ruling to which, if adverse, [he] could make an offer of proof and thereby preserve the issue for appeal. (He] did not do so and thus , has not preserved any error for review ." Perry v. Brcrkefreld, 534 So.2d 602, 607 (Ala.1988 ). Accordingly, we must review the appellant's claim under the plain error rule. Rule 45A, Ala. R.App. P. [5] We have reviewed the motion in limine, the defense's response, the discussions about the motion, and the remaining evidence in this case. Based on that review, we do not find any plain error in this regard. The allegation that the murder was committed in retaliation for a bad drug deal was not presented until after the State had filed its motion in limine . The *931 appellant did not mention a bad drug deal in his statements to the police and, in fact, he stated that he did not know the victim. Furthermore , Burdette, Barnes , Williams, and Rudolph did not mention anything about a bad drug deal in their statements . Instead, the appellant made this allegation only after the State had filed its motion in limine. Furthermore, the appellant only speculated that some of the witnesses might have known that the victim was a drug dealer and that they might testify that the victim was killed because of a bad drug deal. Likewise, he did not make an offer of proof as to what the appellant 's testimony in this regard would be. Finally, the trial court would have reconsidered its ruling before the trial began if the appellant had informed it that he intended to testify. If the court had changed its ruling, the appellant could have cross-examined witnesses and testified about the alleged bad drug deal . However, the appellant did not inform the trial court that he intended to testify and , in fact, did not raise the
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issue concerning the motion in limine again. For these reasons , we reject the appellant's claims. II. The appellant' s second argument is that the trial court improperly admitted into evidence his statement about the murder and improperly refused to conduct a suppression hearing outside the presence of the jury. Before trial, he filed a motion to suppress his statement and requested that the trial court conduct a hearing on his notion. The trial court denied the motion without conducting a hearing . At trial, the State introduced a videotape of, and a written copy of, the appellant's statement into evidence.
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Signore testified that he made the statement about the cup and the fingerprintse because of those denials and to encourage the appellant to be truthful with him. After Detective Signore made the representations about the cup, the appellant admitted that he had been in the car and had *932 had the Dairy Queen cup, but he stated that he separated from the codefendants early in the evening and denied being involved in the murder. Even though he made several statements about his conduct on the day of the murder, the appellant never admitted that he killed the victim. [8][9][l0][ll][12][13][l4][15][16] Confessions and inculpatory statements are presumed to be involuntary and inadmissible. Ex parte Callahan, 471 So.2d 463 (Ala.), cert. denied, 474 U.S. 1019, 106 S.Ct. 567, 88 L.Ed.2d 552 (1985). For a confession to be properly admitted into evidence, the State must prove that " 'the defendant was informed of his Miranda rights and that the confession was voluntarily given.' " Johnson v. State, 680 So.2d 1005, 1007 (Ala.Cr.App.1996) (quoting Mann v. State, 581 So.2d 22, 23 (Ala.Cr.App.1991))_ " 'In detennining whether a confession is voluntary, the trial court's finding of voluntariness need only be supported by a preponderance of the evidence. Seawright v. State, 479 So.2d 1362 (Ala.Crim.App. 1985). The trial court's decision will not be disturbed on appeal unless it is manifestly contrary to the great weight of the evidence.' '' Howard v. State, 678 So.2d 302, 306 (Ala.Cr.App.1996) (quoting Dixon v. Slate, 588 So.2d 903, 907 (Ala.1991), cert. denied, 502 U.S. 1044, 112 S.Ct. 904, 116 L.Ed.2d 805 (1992)). " ' "in reviewing the correctness of the trial court's ruling on a motion to suppress, this Court makes all the reasonable inferences and credibility choices supportive of the decision of the trial court." ' Kennedy v. State, 640 So.2d 22, 26 (Ala.Cr.App. 1993), quoting Bradley v. State, 494 So.2d 750, 761 (Ala.Cr.App.1985), affd, 494 So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). A trial court's ruling on a motion to suppress will not be disturbed unless it is 'palpably contrary to the great weight of the evidence.' Parker v. State, 587 So.2d 1072, 1088 (Ala.Cr.App.1991)."
A.
[6] The appellant alleges that he did not voluntarily make the statement. First, he contends that, because of his age and lack of experience with law enforcement officers and because he voluntarily went to the police station, he was "particularly vulnerable to police tactics of deception." (Appellant's brief at p. 14.) In his motion to suppress his statement, the appellant contended that the circumstances surrounding the interrogation were coercive, but he did not allege any specific facts to support his contention. Because he did not present the specific claim he now raises to the trial court, we will review it under the plain error rule. Rule 45A, Ala. R.App. P. [7] Second, the appellant contends, as he did in his motion to suppress his statement, that Detective Signore tricked him into giving the statement by lying to him about having found his fingerprints on a Dairy Queen cup recovered from Flowers' vehicle. In support of his motion to suppress, the appellant recited a portion of Detective Signore's preliminary hearing testimony. At the preliminary hearing and at trial , Detective Signore admitted that, even though officers had recovered a Dairy Queen cup. from Flowers' vehicle, he did not know whether the appellant's fingerprints were on the cup. He testified that he knew from the three codefendants that the appellant had been with them and had purchased a soft drink from Dairy Queen on the night of the murder. However, in his initial statement to Signore, the appellant had denied being with any of the codefendants on the day of the murder and had denied being in Flowers' vehicle.
1 1 I
Rutledge v. State. (Ala.Cr.App. 1996).
680 So.2d 997, 1002
"The Supreme Court has stated that when a court
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is determining whether a confession was given voluntarily it must consider the 'totality of the circumstances.' Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 1139- 40, 22 L.Ed.2d 433 (1969); Greenwald v. Wisconsin , 390 U.S. 519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77 (1968); see Beecher v. Alabama, 389 U.S. 35, 38, 88 S .Ct. 189, 191, 19 L.Ed.2d 35 (1967). Alabama courts have also held that a court must consider the totality of the circumstances to determine if the defendant's will was overborne by coercion or inducement. See Er pane Matthews, 601 So.2d 52, 54 (Ala.) ( stating that a court must analyze a confession by looking at the totality of the circumstances ),,-cert. denied, 505 U.S. 1206, 112 S.Ct. 2996; 120 L.Ed.2d 872 (1992); Jackson v. State. 562 So.2d 1373, 1380 (Ala.Cr.App.1990) ( stating that, to admit a confession, a court must determine that the defendant's will was not overborne by pressures and circumstances swirling around him); Eakes v. State. 387 So.2d 855, 859 (Ala.Crim.App.1978) (stating that the true test to be employed is 'whether the defendant 's will was overborne at the time he confessed') (emphasis added).... "[T]he test of involuntariness of a confession, or other inculpatory statement , is not whether the defendant bargained with the police, but whether in his discussions with the police , which may have included bargaining , the defendant's will was overborne by 'apprehension of harm *933 or hope of favor.' See Gaddv, 698 So.2d at 1154 (quoting Ex parte Weeks, 531 So.2d 643, 644 (Ala.1988)); Culombe, 367 U. S. at 602 , 81 S.Ct. at 1879[, 6 L.Ed.2d 1037]; Jackson, 562 So.2d at 1380. To determine if a defendant's will has been overborne, we must assess ' the conduct of the law enforcement officials in creating pressure and the suspect's capacity to resist that pressure'; '[t]he defendant's personal characteristics as well as his prior experience with the criminal justice system are factors to be considered in determining [the defendant's] susceptibility to police pressures.' (citations Jackson, 562 So.2d at 1380-81 omitted)." McLeod v. State, 718 So.2d 727, 729-30 (Ala.), cert. denied, 524 U.S. 929, 118 S.Ct. 2327, 141 L.Ed.2d 701 ( 1998). Finally , with regard to misrepresentations by police officers during an interrogation , we have held: "Alabama follows the general rule that a confession is not inadmissible merely because it
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was induced by a trick or misrepresentation that was not reasonably calculated to lead the accused to confess falsely . Fincher v. State, 211 Ala. 388, 100 So. 657 (1924); Bates v. State, 549 So.2d 601 (Ala.Cr.App.1989); Barrow v. State, 494 So.2d 834 (Ala.Cr.App.1986); 2 C. Gamble, McElroy's Alabama Evidence 200.07(7) (5th ed.1996)."
Campbell v. State. 718 So.2d 123, 136 (Ala.Cr.App.1997 ), cert. denied, 525 U. S. 1006, 119 S.Ct. 522, 142 L.Ed.2d 433 (1998). See also Gilder v. State, 542 So.2d 1306 (Ala.Cr.App.1988).
'[M]ore subtle forms of psychological manipulation , such as trickery or deception by the police, have not been considered sufficiently coercive, standing alone, to render a confession or incriminating statement involuntary . Instead, the trial judge must examine the totality of the circumstances surrounding the statement to deter mine its voluntariness. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).'
Barbour v. State, 673 So.2d 461, 467 (Ala.Cr.App.1994), aft'd, 673 So.2d 473 (Ala.1995) cert. denied, 518 U.S. 1020, 116 S.Ct. 2556, 135 L.Ed.2d 1074 (1996) (quoting Fx pane Hill, 557 So.2d 838, 841 (Ala .1989)).
Detective Signore testified about the circumstances surrounding the appellant 's confession, including the fact that the appellant initiated contact with the police about the murder investigation . He testified that the appellant voluntarily went to the police station at 2 :05 p.m, on April 29, 1997. At 2:16 p.m., he and Detective C.D. Phillips advised the appellant of his Miranda rights , and the appellant signed a waiver of rights form. Thereafter, the appellant made several statements about his whereabouts on the day of the murder. His ' statement that was admitted at trial began at 3:55 p.m. Detective Phillips was present during the entire time Signore spoke with the appellant. Signore testified that neither he nor Phillips threatened the appellant or promised him anything to convince him to give a statement. Based on the totality of the circumstances, we conclude that the appellant ' s will was not overborne by the conduct of law enforcement officials . First, the appellant initiated the contact with the police officers about the murder investigation . Second, the officers did not subject him to . a lengthy interrogation . Third, Signore's representations
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about the fingerprints on the cup, standing alone, were not reasonably calculated to lead the appellant to confess falsely. Rather, after the appellant denied being connected to Flowers' vehicle or to the murder, Signore simply attempted to inform the appellant that he had already been connected to the vehicle *934 used in the commission of the murder, so the appellant would be truthful in making his statement. Fourth, the appellant's contention that he was especially susceptible to police tactics of deception is belied by the presentence investigation report, which shows that he had previously been arrested on numerous other charges. Fifth, there is no evidence that the officers threatened or coerced the appellant or that they promised him anything in exchange for his statement. And, sixth, we have reviewed the videotape of the statement, and it does not indicate that the appellant was coerced into giving the statement. Barbour, supra. Thus, we conclude that Signore's misrepresentation was not sufficient to render the appellant's statement involuntary. Therefore, the trial court properly denied the appellant's motion to suppress his statement. B. [17] Second, the appellant contends that the trial court erred in admitting his statement without first conducting a suppression hearing outside the presence of the jury. Although he requested a hearing in his written motion, he did not subsequently object when the trial court denied the motion without conducting a hearing. Because the appellant did not present this argument to the trial court, we review it for plain en-or. Rule 45A, Ala. R.App. P. [18] In his written motion to suppress his statement, the appellant argued only that Detective Signore had made a misrepresentation to him about finding his fingerprints on the Dairy Queen cup recovered from Flowers' vehicle. He did not allege any other facts in support of his contention that he did not voluntarily make the statement. Thus, the only question before the trial court was the legal question of whether Signore's misrepresentation rendered the statement involuntary. As set forth above, we have reviewed the evidence presented in the motion to suppress and at trial concerning the circumstances under which the appellant made the statement, and we have concluded that he made it voluntarily. Ex parte Price, 725 So.2d 1063
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(Ala.1998); Henvy v. State, 468 So.2d 896 (Ala.Cr.App.1984), cert. denied, 468 So-2d 902 (Ala.1985). Under the particular facts of this case, including our finding that the appellant made his statement voluntarily, we find that error, if any, in the trial court's decision to deny the motion to suppress without conducting a hearing did not rise to the level of plain error and. was, at most, harmless error. Rule 45, Ala. R.App. P.; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
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[19] The appellant's third argument is that the trial court improperly considered his juvenile record in overriding the jury's recommendation of a sentence of imprisonment for life without the possibility of parole and in sentencing him to death. Specifically, he contends that, in stating that it was relying on his juvenile record to rebut the statutory mitigating circumstance of his age at the time of the offense, the trial court essentially circumvented the law and used his juvenile record as a nonstatutory aggravating circumstance to override the jury's recommendation. This court addressed an almost identical claim in Burgess v. State, 811 So.2d 557 (Ala.Cr.App. 1998), holding as follows: "Burgess specifically argues that the trial court erred by considering his history of juvenile adjudications to negate the statutory mitigating circumstance of Burgess's lack of a significant criminal history and Burgess's age at the time the offense was committed. In doing so, Burgess says, the trial court 'deploy[ed] *935 the prior delinquencies as if they were nonstatutory aggravation to effectively tip the balance in -favor of death.' (Appellant's brief, p. 18.) "Because juvenile adjudications are not convictions under Alabama law, they cannot be considered as prior criminal activity under Alabama's capital sentencing scheme. Ex parte Davis. 718 So.2d 1166, 1178 (Ala.1998); Freeman v. State. 555 So.2d 196, 212 (Ala.Cr.App.), affd, 555 So.2d 215 (Ala.1989), cert. denied, 496 U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d 284 (1990). See Baldwin v. State, 456 So-2d 117, 125 (Ala.Cr.App.1983), affd; 456 So.2d 129 (Ala.1984), acrd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). Thus, juvenile adjudications cannot negate the statutory mitigating circumstance that the defendant has no significant history of prior criminal activity.
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Freeman, 555 So.2d at 212. Only convictions can negate that statutory mitigating circumstance. Id. "We disagree with Burgess's characterization of the trial court' s consideration of his juvenile adjudications. First, the trial court did not find Burgess's juvenile adjudications to be an aggravating circumstance. The record reflects that the trial court found only one aggravating circumstance: that the murder was committed during the course of a robbery in the first degree. Moreover, the trial court did not, as Burgess maintains, use Burgess' s juvenile adjudications to negate the statutory mitigating circumstances that Burgess lacked a significant criminal history and that Burgess was only 16 years old at the time of the offense. Instead, it is clear from the trial court's sentencing order that the court considered Burgess's history of juvenile adjudications in assessing the appropriate weight to assign to these statutory mitigating circumstances. "Under Alabama's capital punishment statute, the trial court is required to engage in an individualized assessment of the weight to assign to the aggravating and mitigating circumstances found to exist in a particular case in order to determine the propriety of a sentence of death. 13A-5- 47(e), Ala.Code 1975; Ex parte Clisbv. 456 So.2d 105, 108 (Ala.1984), cert. denied, 470 U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 391 (1985). It is clear, moreover, that this weighing process must not be 'a mere tallying of aggravating and mitigating circumstances for the purpose of numerical comparison.' 13A-5-48, Ala.Code 1975. See Ex parte Clisbv, 456 So 2d at 108-09 ('The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation.'). Although it is well-settled law in Alabama that juvenile adjudications cannot be used to negate the statutory mitigating circumstance that the defendant has no significant history of prior criminal activity, Freeman, supra, 555 So.2d at 212, the courts of this state have never held that the trial court must entirely ignore a defendant's juvenile adjudications in performing its 'weighing' duties. The trial court's consideration of a defendant's juvenile adjudications when conducting the weighing process offends neither general constitutional principles nor specific provisions of Alabama law. In fact, Alabama's
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capital punishment statute contemplates that the trial court will have any 'prior juvenile record of the defendant before it when it is deciding upon the proper sentence: pursuant to 13A-5-47, Ala.Code 1975, the trial court is required to consider the presentence report of a defendant' convicted of capital murder, and *936 Rule 26.3(b)(2), Ala.R.Crirn.P.,. specifically provides for the inclusion of the defendant's prior juvenile record in the presentence report.
to
"Alabama' s capital punishment statute does not specify the matters the trial court may consider when engaging in the process of weighing the aggravating circumstances and the mitigating circumstances in a particular case. Nor does the statute require the trial court to make express findings explaining the process by which it weighed the aggravating circumstances and the mitigating circumstances. We conclude that a trial court may. consistent with Alabama law, deem a defendant's juvenile adjudications to be a relevant consideration in its assessment of the weight to assign to the statutory mitigating circumstances of a defendant's lack of a significant criminal history and a defendant's age at the time of the offense." Burgess, 811 So.2d at 605-06 (footnotes omitted). In this case, a review of the trial court's sentencing order shows that the court found that only two statutory aggravating circumstances existed: (1) the capital offense was committed by a person. under sentence of imprisonment, and (2) the capital offense was committed while the defendant was engaged in a robbery or an attempted robbery. Nothing in the sentencing order indicates that the trial court improperly treated the appellant's juvenile record as a nonstatutory aggravating circumstance. Furthermore, the trial court did not use the appellant's juvenile record to negate the statutory mitigating circumstance of the .appellant's age at the time of the offense. [FN2] Instead, the trial court used that record to assess the weight it would assign to that mitigating circumstance. Under the reasoning of Burgess, such an assessment was proper. Therefore, the trial court did not improperly consider the appellant's juvenile record in overriding the jury's sentencing recommendation and in sentencing him to death.
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FN2. In rejecting
the mitigating
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circumstance that the appellant did not have a significant history of prior criminal activity, the trial court specifically noted that the appellant's juvenile record was not a matter to consider in determining whether the circumstance exists. Instead, it found that the appellant did have a significant history of prior criminal activity because he had three prior felony convictions.
IV.
The appellant's fourth argument is that the trial court made several errors in its sentencing order. A. [20][21] First, the appellant argues that the trial court improperly considered his physical characteristics in considering the statutory mitigating circumstance of his age at the time of the offense. He contends that his height and weight are arbitrary variables that are not relevant to his moral or criminal responsibility, and that the trial court's consideration of those attributes deprived him of an and reliable sentencing individualized determination. "[T]he decision as to whether a particular mitigating circumstance is sufficiently proven by the evidence and the weight to be accorded to it rests with the trial court. See Hanev v. State. 603 So.2d 368 (Ala.Cr.App.1991), affirmed, 603 So.2d 412 (Ala. 1992). 'Although consideration of all mitigating circumstances is required by the United States Constitution, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the decision of whether a particular mitigating *937 circumstance in sentencing is proven and the weight to be given it rests with the judge and jury. . Lucas v. State, 376 So.2d 1149 (Fla. 1979).' Smith v. State. 407 So.2d 894, 901 (Fla. 1981)." ' "Harrell v. State, 470 So.2d 1303, 1308 (Ala.Cr.App.1984), affirmed, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985). See also McWilliams v. State, [640] So.2d [982] (Ala.Cr.App.1991)_"
We have carefully reviewed the trial court's sentencing order, and we find the appellant's argument to be without merit. In assessing the weight it would assign to the age mitigating circumstance , the trial court considered the appellant's height, weight, age, physical maturity, and juvenile record [FN3]; the fact that the appellant was the father of a three-month-old child; the fact that the appellant had used marijuana daily since the age of 14; and the fact that the appellant consumed alcohol on a regular basis. The trial court included the appellant's height and weight in the portion of its analysis that concluded that the appellant was a physically mature adult at the time of the offense. However, those physical attributes were only two of several factors the trial court considered in deciding what weight to assign to the appellant's age as a mitigating circumstance. Giles. supra . Accordingly, the trial court did not err in this regard.
1 1 1 1 1 I
FN3. As discussed in Part III of this opinion, the trial court properly considered the appellant's juvenile record in determining what weight it would assign to the age mitigating circumstance.
B.
[22] Second, the appellant argues that the trial court improperly plagiarized a sentencing order written by a different judge, in another case, in another state. Specifically, he challenges the trial court's entire analysis of the age mitigating circumstance, and again contends that the trial court deprived him. of an individualized sentencing determination. In its sentencing order , the trial court specifically stated, "When considering the weight to be given to Jackson's age as a mitigating factor , this case is quite similar to Shellito v. State, 701 So.2d 837 (Fla.1997 )." (C.R.177 .) The court then analyzed the mitigating circumstance in a form similar to that used by the court in Shellito. Although it adapted the Florida court' s reasoning, the trial court clearly incorporated the facts and evidence presented in this case in performing its analysis . Thus, the trial court made an individualized sentencing determination, and the appellant 's argument is without merit.
632 So.2d 568, 572 Giles v. State, (Ala.Cr.App.1992), affd, 632 So.2d 577 (Ala.1993) , cert. denied, 512 U.S. 1213, 114 S.Ct. 2694, 129 L.Ed.2d 825 (1994).
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[23] Third, the appellant argues that the trial court improperly negated the role of the jury in sentencing . Specifically, he asserts that the trial court relied too heavily on information the jury did not hear and improperly suggested that the jury's recommended sentence was based on residual doubt. We disagree. [24][25][26] At the outset, we note that, as set forth in Part XVIII of this opinion, in Alabama, the trial court is the sentencing authority. Freeman v. State, 555 So.2d 196 (Ala.Cr.App.1988), affd, 555 So.2d 215 (Ala.1989), cert. denied, 496 U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d. 284 (1990); Murry v. State, 455 So.2d 53 (Ala.Cr.App.1983), rev'd on other grounds, 455 So.2d 72 (Ala.1984). However, before overriding a *938 jury's sentencing recommendation, the trial court must determine that the aggravating circumstances outweigh the mitigating circumstances. The trial court made that determination in this case. Furthermore, in sentencing the appellant to death, the trial court carefully explained why it overrode the jury's recommendation that he be sentenced to imprisonment for life without the possibility of parole. By necessity, a trial court, in sentencing; may rely on information the jury did not bear. As the trial court noted in this case, the court has the benefit of the presentence investigation, any additional evidence presented at the sentencing hearing before the court, and its knowledge of legal precedent, particularly as it applies to the weighing of aggravating and mitigating circumstances. Thus, the appellant's argument that the trial court relied too heavily on information the jury did not hear is without merit. Further, the trial court did not improperly suggest that the jury made its recommendation based on residual doubt. In its order, the trial court attempted to determine what weight to give the jury's sentencing recommendation. In doing so, the court sought to compare this case to similar cases and to test the reliability of the jury's advisory verdict. When trying to test the reliability of the advisory verdict, the court speculated that the jury may have made its recommendation based on a belief that another of the codefendants fired the fatal shot. However, the trial court ultimately concluded that assigning weight to the advisory verdict based on testing the reliability of the advisory verdict was not
appropriate. Thus, the trial court did not base its sentencing determination ' on speculation about jurors' residual doubt. Rather, the trial court carefully considered the jury's recommendation in overriding that recommendation and sentencing the appellant to death. Therefore, this contention is without merit.
D.
[27] Fourth, the appellant argues that the trial court did not make an adequate determination of his culpability for the offense. However, a review of the sentencing order reveals that this contention is rneritless . The trial court clearly states that the evidence showed that the appellant shot the victim. It also states that the appellant was the ringleader in the offense. Therefore, we reject this claim. V. [28][29] The appellant's fifth argument is that the trial court should have instructed the jury on the lesser included offense of robbery. However, he did not request an instruction on robbery, and he did not object when the trial court did not give one. Therefore, we review this contention for plain error. Rule 45A, Ala. R.App. P. Section 13A-1-9(b), Ala.Code 1975, provides: "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense. " (Emphasis added.) In Boyd v. State, 699 So .2d 967 (Ala.Cr.App. 1997), we held: " 'A defendant accused of a greater offense is entitled to have the trial court charge on any lesser included offense if there is any reasonable theory from the evidence to support the lesser charge , regardless of whether the state or the defendant offers the evidence . Ex purte Pruitt. 457 So.2d 456 ( Ala.1984 ); Parker v. State, 581 So.2d 1211 (Ala.Cr.App.1990 ), cert. denied, 581 So.2d 1216 (Ala.1991 ). A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring *939 the offense within the definition of the lesser offense ... Anderson V. State, 507 So.2d 580 (Ala.Cr.App. 1987).... Section 13A-1-9(b) provides, "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the
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defendant of the included offense."'
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"Breckenridge v. State. 628 So.2d 1012, 1016 (Ala.Cr.App.1993)." 699 So.2d at 972.
The evidence presented at trial showed that the robbery occurred after the murder . The appellant contends that the trial court should have instructed the jury on the lesser included offense of robbery because the robbery allegedly was a mere afterthought to the murder and it was not committed during the robbery . In fact, he contended at trial that he did not have anything to do with the robbery and that Barnes and Williams stole the car only because he drove away from the crime scene without them . He now contends that, if the jury had believed his theory, it could have found him guilty of the separate offenses of intentional murder and robbery . We disagree. The trial court instructed the jury on the lesser included offense of intentional murder , thus giving the jury the option of finding that the appellant committed the murder but not the robbery. However, under the evidence presented, the appellant did not actually rob the victim, although there was sufficient evidence to show that that was his intent in initiating the confrontation . Under the appellant's theory that the robbery was a mere afterthought and that it did not occur during the murder, the jury could have found the appellant guilty of murder, but he would not have been guilty of the robbery. Thus, if the jury had believed the appellant's theory and determined that the robbery did not occur during the murder , there would not have been a rational basis for it to find that the appellant was guilty of robbery. The appellant also contends that the jury could' have believed that the robbery did not occur during the murder but still could have found him guilty of being an accomplice to the robbery. This contention is not supported by the record . As stated above, the evidence clearly showed that the appellant's intent when he started following the victim was to rob the victim. If the jury determined that the appellant was guilty of the robbery , even if it determined that he did not kill the victim, then it could only have convicted him of capital murder. Under the evidence presented , he was at least an accomplice to the murder and, more likely, the actual murderer . There was simply no rational basis under the evidence presented on which the jury
could find the appellant guilty of robbery and not guilty of murder . Therefore, we do not find any plain error in this regard.
VI.
[30][31][32] The appellant' s sixth argument is that the trial court improperly denied his request for a continuance to allow him time to secure the attendance of an allegedly critical witness . Before the trial began, the appellant requested a continuance to locate Gerard Burdette, who had been riding in the victim 's vehicle at the time of the murder. Shortly after the murder, Burdette had made a statement about the crime to the police. Based on that statement, the appellant contended that Burdette 's testimony could exonerate him. [FN4] *940 The prosecution conceded that Burdette's testimony was material , but it agreed to stipulate that Burdette's written statement could be admitted into evidence . The trial court denied the appellant's request for a continuance , and Burdette's statement was read and admitted into evidence during the appellant's case-in-chief.
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FN4. The appellant also argues that Burdette' s statement supported his theory that the motive for the killing was retaliation for a bad drug deal and that the killing did not occur during a robbery. However, we have reviewed Burdette's statement, and it does not refer to a bad drug deal. Therefore, this contention is refuted by the record and is without merit. "A motion for a continuance is addressed to the discretion of the court and the court's ruling on it will not be disturbed unless there is an abuse of discretion.. If the following principles are satisfied, a trial court should grant a motion for continuance on the ground that a witness or evidence is absent: ( 1) the expected evidence must be material and competent : (2) there must be a probability that the evidence will be forthcoming if the case is continued ; and (3) the moving party must have exercised due diligence to secure the evidence." Ex parse Saranthus . 501 So 2d 1256, 1257 (Ala.1986) (citations omitted). At the hearing on the motion , both the prosecutor and defense counsel stated that they had attempted to locate Burdette and that their efforts had not been successful. They
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also noted that both state and federal authorities had outstanding warrants for Burdette's arrest, that Burdette's mother stated that she did not know where he was, and that there had been some indication that Burdette was no longer in the Montgomery area . In its written order denying the appellant's motion, the trial court stated: "In an attempt to accommodate all parties to secure the appearance of Burdette , on February 20, 1998 , investigators of the District Attorney's office and a Deputy District Attorney went to the home of Burdette' s mother to inquire of his whereabouts . According to the report received from these investigators and the Deputy District Attorney, the mother informed ..them that she had not seen her son in a year and it was reported that he was not in Montgomery. Because there does not appear to be any reasonable likelihood that Burdette' s appearance could be secured in the reasonable foreseeable future, the motion for continuance is denied. "The Court notes that the State stipulates that the statement of Burdette which was taken by Corporal Cunningham can be used as evidence in the Defendant' s behalf." the State's (C.R.100.) At the close of case-in-chief, when the appellant moved for a judgment of acquittal on the ground that Burdette was not available as a witness , the trial court reiterated: "As for Mr. Burdette , I have issued an order from competent counsel on why I did not postpone the trial of this case because Mr. Burdette could not be found. But just for the record again , based on everything that has been reported to the Court, Mr. Burdette has charges pending against him, Class A felony charges, I believe , for robbery in the first degree and he has apparently flown the jurisdiction of this Court. And there is no way anybody could tell when Mr . Burdette would ever be [available.] So that is the basis of that. Not anything that counsel did or didn' t do. But he is just gone , and nobody knows when he is going to be apprehended and brought back."
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located. In fact, all indications pointed to the contrary. Since even the State's efforts to find Mr. Smith had proved futile, and Reese's three-month attempt to locate Ms. Taylor had been fruitless, the trial court could rightly conclude there was no 'probability' that these witnesses would be forthcoming if the case were continued . 'A motion for a continuance in a criminal case is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed unless clearly abused.' Fletcher v. State, 291 Ala. 67, 68, 277 So.2d 882, 883 (1973); Butler v. State, 285 Ala. 387, 393, 232 So.2d 631, 635 (1970), cert. dismissed, 406 U.S. 939, 92 S.Ct. 1807, 32 L.Ed.2d 140 (1972) ('unless a gross abuse of the court's prerogative is shown')." 549 So.2d 148, 151 Reeve v. State, (Ala.Cr.App. 1989), overruled on other grounds, Huntk'v v. State. 627 So.2d 1013 (Ala.1992). See So.2d 46 also Banks v. State, 647 (Ala.Cr.App.1994); Miller v. State, 602 So.2d 488 (Ala.Cr.App. 1992). Similarly, the appellant has not satisfied the second prong of the Saranthus test. He did not present any evidence that, even if the trial court granted a continuance , Burdette could be located and would testify. Banks, supra. In fact. both the prosecution and the defense had attempted to secure Burdette's attendance at trial, but neither had been successful. Miller, supra. Moreover, Burdette's statement was admitted into evidence by a stipulation of the prosecution and defense counsel. Therefore, the trial court did not abuse its discretion in denying the appellant's motion for a continuance. VII. [33](34] The appellant's seventh argument is that the trial judge improperly left the courtroom while the jurors viewed his videotaped statement. He also contends that, after the jury viewed the videotape and just before court adjourned for the day, the trial court improperly allowed the court reporter to admonish the jurors to avoid exposure to media coverage of the trial, not to discuss the case, and to be back at 9:30 the next morning. Because the appellant did not present these claims to the trial court, we review them for plain error. Rule 45A, Ala. R.App. P. [35] During the testimony of Officer Signore, after the State had played part of the appellant's
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(R. 30-31.)
"While we assume for present purposes that the first and third parts of * 941 the Saranthus test were met here, we conclude that the trial court did not abuse its discretion in denying the continuance based upon Reese 's failure to satisfy the second Saranthus requirement. There was absolutely no showing that, if a continuance were granted, either Ms. Taylor or Mr. Smith could be
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videotaped statement, the trial judge stated: "Ladies and gentlemen , I want to stop for a second. I have seen that video . I don't need to see it. It's important for you to see it. It's not important for my purposes to see it . I do want a copy of the statement, though. I don't have that. I want to read it again . I have got some other things to do. We are going to continue playing this for y' all.. I have got some other matters to take care of. It's important for y'all to judge Mr. Jackson' s credibility in this video . Y'all make credibility choices . It's important for y'all to observe how this investigation was conducted. Another thing you're going to have to do in judging the credibility of whaCs said in it is to judge whether or not it was coerced in any manner. So I have already made an initial ruling about that which allows y'all to see it now. But, for my purposes, it is not for me to sit here any more. The fact that I am going to be *942 doing something else doesn 't mean that it is not important to y'all and not very important to this trial." (R. 524.) The appellant did not object when the judge left the courtroom . After the videotape was played, the court reporter stated: "I have been asked by Judge Gordon to advise the jury not to read the newspapers , not to watch television and not to discuss the case among yourselves or with anyone else and be back at 9:30 a. m. Thursday morning." (R. 525 .) Again, the appellant did not object when the court reporter admonished the jury. At . that point, court was adjourned for the day. "[T]he rule that it is the duty of the presiding judge to be visibly present during every moment in the trial of the case, so that he can always see and hear all that is being said and done, does not mandate a reversal in every instance of his absence . Although in Thomas v. State, 150 Ala. 31, 43 So. 371 (1907), the defendant made no objection to the judge 's absence, the following comments are instructive in the present situation: " '(W)e are of the opinion that the mere absence of the judge during the progress of the trial, when no objection or point was made at the trial, the absence being only for a few moments ... does not require or authorize a reversal of the judgment of conviction . Especially so when it does not ered anv harm or appear that the defendant suff detriment on account of the judge's temporary absence.' Thomas, 150 Ala. at 48 [43 So. 3711 (emphasis added).
"In Melvin v. State, 32 Ala.App. 10, 21 So.2d 277 (1944), it was noted: " 'In 23 C.J.S., Criminal Law, Section 972, p. 300, after asserting that the general rule requires the continued presence of the presiding judge during the entire proceedings of the trial, the text observes further "Nor, in some jurisdictions, is his absence from the room. reversible error, where he remains in a position to observe and hear the proceedings and to pass upon any questions which may arise therein, or where he is at all times within immediate call." (Emphasis ours.)' Melvin. 32 Ala.App. at 16,21 So.2d 277. "Finding that the trial judge had only left the bench and not the courtroom, the appellate court stressed the importance of the trial judge remaining visible in the courtroom at all times during the proceedings: 'Great care and caution should be observed by the trial judge to avoid even the slightest doubt of his accessibility.' Melvin, 32 Ala.App. at 16,21 So.2d 277. "In Ex parte Ellis, 42 Ala.App. 236. 159 So.2d 862 (1964), the court found that an affidavit in support of a motion for new trial which asserted that the trial judge left the bench and the courtroom for a period of 15 or 20 minutes during the course of the trial proceedings did not establish that the trial was 'lacking in fundamental fairness.' " 'From aught that appears in such affidavit, the trial judge did not remove himself to a point where he abandoned supervision of petitioner's Circuit Court trial or any part thereof. Said affidavit failed to state that said trial judge did not remain in proximity sufficiently close to hear, see and supervise the entire proceedings. 'Everything is to be presumed in favor of the regularity of the proceedings of a court of justice.' Ellis, 42 Ala.App. at 239, 159 So.2d 862. "Here, even though defense counsel had no duty to make objection to any offensive *943 or objectionable argument of the prosecutor in the absence of the presiding judge from the courtroom and could have presented objection in his motion for new trial, Woods v. State, 19 Ala.App. 299, 301, 97 So. 179 (1923), there has been no contention that there was any prejudicial remark made by the prosecutor during the trial judge's absence. "In his brief, the defendant argues that 'it is impossible to know what prejudice he suffered in fact.' However, we cannot find that the defendant was harmed in any degree by the absence of the
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trial judge where there was no allegation made during the course of the proceedings below that he was prejudiced . From the record it does not appear that 'the error complained of has probably injuriously affected substantial rights of the parties .' A.R.A.P. Rule 45. Indeed, as in Er Porte Ellis, there has not even been a showing that the trial judge ' did not remain in proximity sufficiently close to hear, see and supervise the entire proceedings .' Ellis. 42 Ala.App. at 239, 159 So.2d 862. For these, reasons, we conclude that under the facts of this particular case the trial judge' s absence does not require a reversal of the defendant's conviction." Harris v. State, 409 So. 2d,. 1006, 1008-09 (Ala.Cr.App. 1982) (footnote omitted). In this case, the trial judge was not absent during the arguments of counsel, examination of witnesses, or the handing down of the verdict . Rather, he was absent during the playing of a portion of a videotape and when court adjourned for the day. Before , he left, the judge stated that he had previously viewed the videotape , and he thoroughly instructed the jurors about the importance of the videotape and their role in reviewing it. Finally, court adjourned for the day immediately after the videotape was played, and the court reporter made the same comments to the jurors that the judge had made when court had previously adjourned for the day. This action certainly did not amount to a "complete abdication of judicial control" over the trial by the judge , as the appellant contends. The appellant has not alleged or shown that he was prejudiced by the judge's absence from the courtroom . In fact, he has not alleged that any error occurred during the judge 's absence. Thus, under the facts of this case, we do not find that the judge's actions rose to the level of plain error . At most, his actions may have constituted harmless error. Rule 45, Ala. R.App. P. [FN5]
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The appellant' s eighth argument is that the State improperly obtained , his conviction by uncorroborated accomplice testimony. Because they had all been indicted for the same capital offense , the appellant argues that Barnes, Rudolph, and Williams were accomplices to the offense and that, therefore , their testimony should have been corroborated. A. (36][37][38][39][40][41][42] The appellant first contends that the State did not present sufficient evidence to corroborate the testimony of his accomplices concerning the robbery element of the capital offense . At the close of the State's case- in-chief, the appellant moved for a judgment of acquittal, specifically arguing that the State had not presented sufficient evidence to corroborate the testimony of his accomplices . In denying *944 the appellant's motion, the trial court stated: "The Court finds that there is sufficient evidence of corroboration in this case for the matter to go to the jury on not only the defendant's statement, but the physical evidence with regard to the weapon and also the bullet itself was recovered in connection with the defendant's oral statement to Detective Signore that he did have a . 380 caliber weapon in his possession . Although there is testimony in this case of a .380 that was found after the car was driven off by the other two codefendants --or two of the other codefendants." (R. 29-30.) "A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending . to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."
12-21-222, Ala.Code 1975.

" ' "Corroboration need only be slight to suffice." Ingle v. State. 400 So.2d 938, 940 (Ala.Cr.App. 198 1). "While corroborating evidence need not be strong, it '... must be of substantive character , must be inconsistent with the innocence of a defendant and must do more than raise a suspicion of guilt.' McCoy v. State, 397 So.2d 577 (Ala.Crim.App.), cert. denied, 397 So.2d 589 (Ala.1981)." Booker v. State, 477 So.2d 1388, 1390 (Ala.Cr.App.1985). "However, the corroboration need not be sufficiently strong by itself to warrant a conviction ." Miles v. State,
FN5. In so holding , we do not wish to be construed as condoning the judge's conduct in leaving the courtroom. Rather, we admonish trial judges to remain in the courtroom throughout the entire course of a trial.
VIII.
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476 So.2d 1228, 1234 (Ala.Cr.App.1985). The requisite corroborative evidence is determined by a process of elimination or subtraction. Caldwell v. State. 418 So.2d 168, 170 (Ala.Cr.App.1981). "The means for analyzing the evidence to determine if there is sufficient evidence to corroborate testimony of an accomplice is to set aside the accomplice's testimony and determine whether or not the remaining evidence tends to connect the defendant with the commission of the offense." Leonard v. State, 459 So.2d 970, 971 (Ala.Cr.App.1984). "Whether such corroborative evidence exists is a question of law to be resolved by the trial court, its probative force and sufficiency being questions., for the jury." Caldwell v. State, supra, at 170. Circumstantial evidence is sufficient to show corroboration. 451 So.2d 435, 437 Jackson v. State, (Ala.Cr.App. 1984). See also McConnell v. State, 429 So.2d 662 (Ala.Cr.App.1983):
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711 So.2d 1031, 1059 Arthur v. State. (Ala.Cr.App.1996), cert, denied, 711 So.2d 1097 (Ala.1997). "A combination of facts may be sufficient to corroborate the testimony of an accomplice even though each single fact, standing by itself, is insufficient." Wilson v. State, 690 So.2d 449, 456 (Ala.Cr.App.1995), affd in part, 690 So.2d 477 (Ala.1997). " 'Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice.' Andrews v. State, 370 So.2d 320, 322 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979). In this case, as in Perry v. Slate, 853 P.2d 198, 200 (Okla.Crim.[App.]1993), the '[a]ppellant himself corroborated (the accomplice's] testimony when he testified at trial and admitted that he shot the victim in self-defense.' See also Hood v. State, 598 So.2d 1022, 1024 (Ala.Cr.App.1991) to the police (accused's own statement corroborated accomplices). *945 "In Hood v. State. supra, this Court observed: " 'The appellant ... insists that because the "for hire" element of the capital offense was not independently corroborated, the State did not establish a prima facie case of capital murder. That is not the law in Alabama. " 'As early as 1867, our Supreme Court held that a charge requiring corroboration of "every material part" of an accomplice's testimony "went beyond the requirements of the statutory rule, or
any rule recognized by the common law." Montgomet3v v. State, 40 Ala. 684, 688 (1867). More recently, in Lx parte Bell, 475 So.2d 609, 613 (Ala.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985), a capital case, the court held that Ala.Code 1975, 12-21-222, "does not require corroborative testimony as to material elements of the crime; it only requires other evidence 'tending to connect the defendant with the commission of the offense.' " See also Andrews v. State, 370 So.2d 320 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (AIa.1979), wherein this court observed: " ' "The corroboration of an accomplice must tend to connect the accused with the commission of the crime but need not refer to any statement or fact testified to by the accomplice. 'Corroborate means to strengthen, to make stronger; to strengthen , not the proof of any particular fact to which the witness has testified, but to strengthen the probative, criminating force of his testimony.' ... Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice."
"Hood v. State, 598 So.2d at 1024-25." Gurlev v. State, 639 So.2d 557, 561-62 (Ala_Cr.App.1993 ).
(43] Thus, even assuming the codefendants were accomplices, the State was not required to present corroborative evidence as to each element of the capital offense or as to each fact ,about which. the accomplices testified, Rather, it was simply required to present other evidence that tended to connect the appellant to the commission of the offense. We conclude that the State presented sufficient evidence to corroborate the testimony of the accomplices. In addition to the appellant's appellant's conduct and statements to law enforcement officials, the State also introduced the testimony of two eyewitnesses to the offense; the statement of Gerard Burdette; physical evidence recovered from the crime scene and from the vehicles involved in the offense; the spent .380 MagTech shell casing recovered from the crime scene; the bullet recovered from the victim's heart; expert testimony that the bullet was consistent with having been fired from a .380 pistol; the box of .380 MagTech ammunition recovered from the appellant's bedroom; expert testimony that the bullet was consistent with having been fired from the spent shell casing; testimony that Lottie Flowers' vehicle had been stolen and was later
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recovered with a broken steering column, a dent on the side, and a broken window; the Dairy Queen cup recovered from Flowers' vehicle; testimony that the victim's vehicle was recovered from Porterfield's farm off of Old Hayneville Road; Porterfield's testimony that three young black men were walking around the victim's vehicle the morning after the murder, and the stereo from the victim's vehicle, which was recovered from Williams' girlfriend's residence. Taken as a whole, this evidence was sufficient to corroborate the testimony of the appellant's *946 accomplices. Therefore, the appellant's claim is without merit.
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[44][45] The appellant further contends that the trial court erred because it did not instruct the jury that accomplice testimony must be corroborated by other evidence. However, he did not request such an instruction , and he did not object when the trial court did not give one. Thus, we review this claim for plain error. Rule 45A, Ala. R.App. P. We have previously applied a harnless error analysis to such a claim . Arthur, supra. " 'The court should have instructed the jury concerning the need for corroborative evidence of McCants's testimony. However, the failure to do so does not mean that this cause must automatically be reversed. Automatic reversal exists only when the error "necessarily renders a trial fundamentally unfair." Rose v. Clark. 478 U.S. 570, [577], 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). Alabama has applied the harmless error analysis in a case involving the death penalty to the failure of the court to instruct the jury on the principle of accomplice corroboration. Gurley v. State, 639 So.2d 557 (Ala.Cr.App.1993); Frazier v. State; 562 So.2d 543, 558 (Ala.Cr.App.), rev'd on other grounds, 562 So.2d 560 (Ala.1989). "'As Judge Bowen stated in Gurley: " ' "[T]he error of failing to instruct the jury on the need for corroborative evidence is harmless when the testimony of an accomplice has in fact been corroborated. Frazier v. State, 562 So.2d 543, 558 (Ala.Cr.App.), reversed on other grounds, 562 So.2d 560 (Ala.1989). Accord People v. Brunner, 797 P.2d 788, 790 (Colo.App.1990); State v. Brown [187 Conn. 602], 447 A.2d 734, 740 (Conn.l982); Ali v. United States, 581 A.2d 368, 377-78
(D.C.App. 1990), cert. denied , 502 U.S. 893, 112 S.Ct. 259 [116 L.Ed.2d213] (1991); Strong v. State [261 Md. 371], 275 A.2d 491, 495 (Md.1971), vacated on other grounds , 408 U.S. 939 [92 S.Ct. 2872, 33 L.Ed.2d 760] (1972); State v. England, 409 N.W.2d 262, 265 (Minn .App. 1987)." ' " Arthur. 711 So.2d at 1059 ( quoting Burton v. State, 651 So.2d 641, 653- 54 (Ala.Cr.App.1993), affd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995)). Similarly, because the State presented sufficient evidence to corroborate the testimony of the appellant's accomplices , we conclude that the fact that the trial court did not instruct the jury on the necessity of corroborating accomplice testimony did not rise to the level of plain error and was, at most, harmless error. See Rule 45, Ala. R.App. P. IX. [46][47] The appellant's ninth argument is the State improperly used its peremptory challenges to discriminate on the basis of race and gender. He contends that he showed that there was a prima facie case of discrimination in violation of Batson v. Kentucky. 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), during his trial, and that the trial court should have required the prosecution to provide race- and gender-neutral reasons for its strikes. For these reasons, he urges this court to remand this case to the trial court "for a hearing to determine whether . the . State discriminated on the basis of gender and race in its use of peremptory strikes." (Appellant's brief at p. 47.) *947 After the jury was struck but before it was sworn, the following occurred: "[Defense counsel]: Judge, at this point we would move under Batson and its progeny for the State to explain race-neutral reasons why it struck Numbers 116, 94, 96, 11, 26, and 165, which were the last set of jurors it struck before turning to Your Honor with the random system. Six of those seven are black. Eight of their total strikes were black. "The Court: That's not enough to establish a prima facie case.... What's your prima facie case'? "[Defense counsel]: I don't believe they have race-neutral reasons for doing that Judge. I mean, six out of seven in a row.
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"The Court: That's not enough." (R. 156.) Thus, the appellant preserved for appellate review his claim of discrimination based on race. However, he did not present his claim regarding discrimination on the basis of gender to the trial court. Therefore, we review that claim under the plain error rule. Rule 45A, Ala. R.App. P. At the outset, we note that the record on appeal does not include any documents that show the race or gender of the prospective jurors in this case. Furthermore, it does not include copies of the questionnaires completed by the jurors before voir dire examination. "[T]he record does not contain the clerk's office jury list of any relevant information about the jurors. 'It is the appellant's duty to provide this court with a complete record on appeal.' Knight v. State, 621 So.2d 394 (Ala.Cr.App.1993). See 584 So.2d 872 Holder v. State, also (Ala.Cr.App.1991). We cannot predicate error on a silent record. Hutchins v. State. 568 So.2d 395 (Ala.Cr.App.1990)." 627 So.2d 1114, 1116 Roberts v. State, (Ala.Cr.App.1993). See also Baker v. State. 683 So.2d 1 (Ala.Cr.App.1995). Thus, "[t]here is no evidence in the record that the prosecutor used his strikes in a racially discriminatory manner. There is no indication of the racial composition of the jury, though a jury strike list is contained in the record. Neither do we know whether any minorities in fact served on the jury. The record simply does not support an inference of plain error on the alleged Batson violation. Our Supreme Court in Ex parse Watkins, 509 So.2d 1074 (Ala.1987), cert, denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), refused to find plain error in a similar situation. It stated: " 'The record as a whole simply does not raise an inference that the state engaged in the practice of purposeful discrimination. Under the plain error rule this Court will "notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." ... The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred ( i.e., the state's use of its peremptory challenges to exclude
Page 28
1 1 1 1
blacks).' "509 So .2d at 1076-77. See Kuen;el v. State, 577 So.2d 474 (Ala.Cr.App.1990), affd, 577 So.2d 531 (Ala. 199 l ), cert. denied, [502] U. S. [886], 112 S.Ct. 242, 116 L.Ed.2d 197 ( 1991) (stating that there was no evidence in the record to support the contention that the State of Alabama used its peremptory strikes to exclude blacks from the jury). 'Under the circumstances of this case, we cannot conclude *948 that a prima facie case of purposeful discrimination has been established.' Pierce, 576 Sold at 242." Jenkins v. State. 627 So.2d 1034, 1042 (Ala.Cr.App.1992), affd, 627 So.2d 1054 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1388, 128 L.Ed.2d 63 (1994). See also Freeman v. State, 555 So. 2d 196 (Ala.Cr.App.1988), affd, 555 So.2d 215 (Ala.1989 ), cert. denied, 496 U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d 284 (1990). Likewise, the record before us does not raise an inference of discrimination based on either race or gender. Nevertheless, the appellant urges us to remand this case so the prosecution can provide reasons for its use of its peremptory challenges. "As this Court stated in FEY- parse Watkins, 509 So.2d 1074, 1077 (Ala.1987), cert. denied, Watkins v. Alabama, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), '[t]he defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred.' In effect, McNair is requesting that we remand this case for a hearing on this issue, on the strength of the circuit clerk's affidavit, so that a record can be created for appellate review. We specifically decline this request, for to do otherwise would unduly enlarge the scope of the plain error review as authorized by our appellate rules. See Watkins, supra, in which we had the opportunity in adeath penalty case to remand for an evidentiary hearing on a Batson issue, but refused to do so." Ex parte McNair. 653 So.2d 353, 360-(Ala.1994), cert. denied, '513 U.S. 1159, 115 S.Ct. 1121, 130 L.Ed.2d 1084 (1995). We, too, decline the appellant's request. Because the record before this court does not raise any inference of discrimination, we do not find any reversible error in this regard.
X.
[48][49) The appellant's tenth argument is that the
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836 So.2d 915 (Cite as: 836 So .2d 915)

trial court's instruction on reasonable doubt violated the principles of Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). The trial court instructed the jury on reasonable doubt as follows: "I have told you that the State has to prove this case beyond a reasonable doubt from the evidence. So let's talk for a moment about what a reasonable doubt is. Simply put, ladies and gentlemen, a reasonable doubt is a doubt for which you can give a reason. It may arise from all the evidence. It may arise from any part of the evidence. It may arise from lack of evidence in any case after a careful and impartial consideration of all of the case.,That is what you have got to look at is look at the evidence--all the evidence that is presented to you in this case to determine whether or not the State has proven the defendant guilty beyond a reasonable doubt. You don't find a person guilty of a criminal charge based on conjecture or suspicion or surmise. On the other hand though, you don't find a person not guilty because of some vague or conjectural or fanciful doubt. Now the State's burden is to prove the defendant guilty beyond a reasonable doubt. But the State does not have to prove him guilty beyond all doubt or beyond a shadow of a doubt or to a mathematical certainty. But the State has to satisfy its burden by proving his guilt beyond a reasonable doubt from the evidence in this case. "I would simply say to you that proof beyond a reasonable doubt is proof of such a convincing character that you will be willing to rely and act upon it without hesitation in the most important of your *949 own affairs. So if you are convinced by the evidence that the defendant has been -proven guilty of an offense beyond a reasonable doubt, then you must find him guilty. On the other hand, if you are not convinced by the evidence that he has been proven guilty beyond a reasonable doubt, then you must find him not guilty as you look at the charges in this case. (R. 83-85). The appellant specifically contends that the instruction improperly lowered the State's burden of proof. He did not present this issue to the trial court. Therefore, we review it for plain error. Rule 45A, Ala. R.App. P. In Knotts v. State. 686 So.2d 431 (Ala.Cr.App.), 686 So.2d 484 opinion after remand , (Ala.Cr.App.1995), aft'd, 686 So -2d 486 (Ala.1996)
Page 29
, cert. denied, 520 U.S. 1199, 117 S.Ct. 1559, 137 L.Ed.2d 706 (1997), we held:
"The Due Process Clause of the Fourteenth Amendment 'protects the accused against proof beyond a conviction except upon reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L. Ed.2d 368 (1970). In Cage v. Louisiana, the United States Supreme Court found that a jury charge that defined 'reasonable doubt' by using the phrases 'grave uncertainty,' 'actual substantial doubt,' and 'moral certainty' could have led a reasonable juror to interpret the instructions to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause . Subsequently , the Court ' made it clear that the proper inquiry is not whether the instruction " could have" been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it.' Victor v. Nebraska. 511 U.S. 1, 6, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994) (quoting Estelle v. McGuire, 502 U.S. 62, 72-73, and n. 4, 112 S.Ct. 475, 482 and n. 4, 116 L.Ed.2d 385 (1991), emphasis in original ). Thus, the constitutional question presented here is whether there is a reasonable likelihood that the jury understood the instructions to allow the conviction based on proof insufficient to meet the Winship reasonable doubt standard . Victor v. Nebraska; Ex parte Kirby, 643 So.2d 587 (Ala.), cert. denied, [513] U.S. [1023], 115 S.Ct. 591, 130 L.Ed.2d 504 (1994); Cox v. State. 660 So.2d 233 (Ala.Cr.App.1994). "In reviewing the reasonable doubt instruction, we do so in the context of the charge as a whole. Victor v. Nebraska: Baker v. United States, 412 F.2d 1069 (5th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S .Ct. 583, 24 L.Ed.2d 509 (1970); Williams V. State, 538 So.2d 1250 (AIa.Cr.App.1988). So long as the definition of 'reasonable doubt' in the charge correctly conveys the concept of reasonable doubt, the charge will not be considered so prejudicial as to mandate reversal . Victor v. Nebraska; Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954).11 686 So.2d at 459. " 'Use of some but not all of the terminology found offensive in Cage does not automatically constitute reversible error .' " Taylor v. State, 666 So.2d 36, 56 (Ala.Cr.App.1994), afffd, 666 So .2d 73 (Ala.1995), cert. denied, 516 U.S.
1 1 1
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836 So 2d 915 (Cite as: 836 So .2d 915)
1120, 116 S . Ct. 928 , 133 L.Ed.2d 856 (1996) (citations omitted). Finally , we have previously held that the statement that a reasonable doubt is a doubt for which a reason can be given does not violate Cage and does not improperly lessen the State's burden of proof. Burgess v. State, 827 So.2d 134 (Ala.Cr.App.1998); Ex parte McWilliams. 640 So.2d 1015 (Ala.1993), affd, 666 So.2d 90 (Ala.1995 ), cert. denied , *950516 U. S. 1053, 116 S.Ct. 723. 133 L.Ed.2d 675 (1996); McMillian v. State, 594 So .2d 1253, 1283 (Ala.Cr. App.1991).
Page 31 of 48
Page 30
(Ala.Cr.App.1995), affd. 698 So.2d 1150 (Ala.), cert. denied, 522 U.S. 1032, 118 S.Ct. 634, 139 L.Ed.2d 613 (1997) (quoting Ex parte Siebert. 555 So.2d 780, 783-84 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297. 111 L.Ed.2d 806 (1990) )
" '[P]hotographs depicting the character and location of wounds on a deceased 's body are admissible even though they are cumulative and are based on undisputed matters. Magwood [v. State], 494 So.2d [124, 141 (Ala.Cr.App. 1985), affirmed , 494 So.2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986) ]. The fact that a photograph is gruesome is not grounds to exclude it as long as the photograph sheds light on issues being tried. Id. Also, a photograph may be gruesome and ghastly, but this is not a reason to exclude it as long as the photograph is relevant to the proceedings , even if it tends to inflame the jury. ld.'
1 1 1 1 1
Taken as a whole, the trial court's instruction in this case properly conveyed the concept of reasonable doubt to the jury, and it did not lessen the State's burden of proof. There is no reasonable likelihood that the jury applied the instruction in a manner that would violate the appellant' s constitutional rights. Therefore, we do not find any plain error in this regard.
Xl.
[50][51][52] The appellant's eleventh argument is that the trial court improperly admitted photographs and videotapes that allegedly served only to inflame and prejudice the jury. Specifically, he contends that the introduction of one picture of the victim after he was killed seriously prejudiced him. With regard to the remaining photographs and videotapes, he makes only generalizations without specifying which ones he finds objectionable. Because the appellant did not object to the admission of the photographs and the videotapes at trial, we must determine whether the admission of these items constituted plain error . Rule 45A, Ala. R.App. P. [53][54][55][56][ 57][58] When reviewing these photographs and videotapes, we are guided by the following principles: " 'Photographic evidence is admissible in a criminal prosecution if it tends to prove or disprove some disputed or material issue, to illustrate some relevant fact or evidence, or to corroborate or dispute other evidence in the case. Photographs that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence.... Finally photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors.' "
"Ex parse Bankhead 585 So.2d 112 (Ala.1991). Accord, Ex parse Siebert. 555 S6.2d 780, 783-84 (Ala.1989), cert. denied, [497] U.S. [1032], I10 S.Ct. 3297, 111 L.Ed.2d 806 (1990); McElroy's at 207.01(2)."
Parker v. State, 587 So.2d 1072, 1092-93 (Ala.Cr.App.1991 ), opinion extended after remand, 610 So.2d 1171 (Ala.Cr.App.), atYd, 610 So.2d 1181 (Ala.1992), cert. denied, 509 U.S. 929, 113 S.Ct. 3053, 125 L.Ed.2d 737 (1993). Photographs that depict the crime scene are relevant and therefore admissible . Aaltrnan v. State, 621 So.2d 353 (Ala.Cr.App. 1992), cert . denied, 510 U.S. 954, 114 S.Ct. 407, 126 L.Ed.2d 354 (1993); Ex parte Siebert, 555 So.2d 780, 783-84 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990): Hill v. State, 516 So.2d 876 (Ala.Cr.App.1987)_ Finally, *951 " ' "photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors ." Ex parte Siebert, 555 So.2d 780, 784 (Ala.1989), cert, denied, 497 U.S. 1032, 1 1 0 S.Ct. 3297, 1 1 1 L.Ed.2d 806 ( 1990). See generally C . Gamble, McElroy's Alabama Evidence, 207.01(2) (4th ed.1991). "The photographs of the victim were properly admitted into evidence . Photographic exhibits are admissible even though they may be cumulative, ... demonstrative of undisputed facts, ... or gruesome ...." Williams v. State, 506 So.2d 368, 371 (Ala.Cr.App.1986), cert. denied, 506 So.2d 372 (Ala. 1987).'
Gaddy
v. State,
698 So.2d 1100, 1148
"DeBruce v. State, 651
So.2d 599, 607
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836 So-2d 915 (Cite as: 836 So -2d 915)

(Ala.Cr.App.1993). See also Er parte Bank-head, 585 So.2d 112 (Ala.1991). The court did not err in allowing photographs of the victim's body to be received into evidence." Hutcherson v. State. 677 So.2d 1174, 1200 (Ala.Cr.App.1994), rev'd on other grounds, 677 So.2d 1205 (Ala.1996). See also Giles v. State. 632 So.2d 568 (Ala.Cr.App.1992), affd, 632 So.2d 577 (Ala.1993), cert. denied, 512 U.S. 1213, 114 S.CL 2694, 129 L.Ed.2d 825 (1994); Hanev v. State, 603 So.2d 368 (Ala.Cr.App.1991), at?d, 603 So.2d 412 (Ala.1992), cert, denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). In this case, the photographs of the victim depict the character and location of his wounds. are neither Nevertheless, these photographs unnecessarily gruesome not gory. We have also photographs and reviewed the remaining videotapes, and we do not find that they were unduly prejudicial to the appellant. Those photographs and videotapes were relevant and admissible because they depict the crime scene, the vehicles driven by the victim and the appellant, and the evidence recovered during the investigation of the crime. The appellant has not shown that the admission of any of the photographs or videotapes affected or probably affected his substantial rights. Accordingly, the trial court's admission of the photographs and videotapes did not constitute plain error.
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"[Prosecutor]: That's why I challenged her. "The Court: I confused '[A.A.] for [B.B.] I think their challenges are due to be granted. That's my initial reaction. If y'all have anything you would like to say about it, I will hear you. Anything y'all have in opposition to any of those?
"[Defense counsel]: We don't have any."

(R. 126-27.) Because the appellant did not present his claim about the challenges for *952 cause to the trial court, we review it for plain error. Rule 45A, Ala. R.App. P. During general voir dire examination, prospective jurors L.A., A.A., V.C., M.E., and V.G. indicated that they had reservations about imposing the death penalty. Further individual examination by the trial court revealed that the prospective jurors either could not vote on the imposition of punishment or would not vote to impose the death penalty under any circumstances. Prospective juror L.A. indicated that he did not personally condone the death penalty and that he could not impose the death penalty under any circumstances. (R. 82.) Prospective juror A.A. expressed ambivalent feelings about the death penalty. (R. 83.) Upon further questioning by the trial court, she indicated that she did not know whether she could follow the law in recommending a sentence of death or even vote in such a case. (R. 84, 86, 89- 90.) Prospective juror V.C. indicated that she could not impose the death penalty under any circumstances. (R. 105, 107.) Prospective jurors M.E. and V.G. indicated that, based on their religious beliefs, they could not vote to impose the death penalty under any set of facts or circumstances. (R. 119- 22.) Contrary to the appellant's contention in his brief to this court, not one of these prospective jurors indicated that he or she could follow the law despite his or her opinions about the death penalty. [61][62][63][64][65] Initially, we note that the State may successfully challenge for cause any prospective juror who would refuse to impose the death penalty under any circumstances. "On the trial for any offense which may be punished capitally ..., it is a good cause of challenge by the state that the person would refuse to impose the death penalty regardless of the evidence produced...." 12-16-152, Ala.Code 1975. "In Tavlor v. State, 666 So.2d 36, 47 (Ala.Cr.App. 1994), this Court outlined the guidelines for determining whether a potential
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1 1
X"II.
[59][60] The appellant's twelfth argument is that the trial court improperly granted the State's challenges for cause as to prospective jurors who expressed objections to the imposition of the death penalty. After the voir dire examination, the following occurred:
"The Court: Exceptions for cause?

"[Prosecutor]: Yes, sir. State would challenge juror [L.A.], Juror [A.A.], Juror [V.C.], Juror [M.E.], Juror [V.G.]" "The Court: Anything in response to that? Before y'all respond, let me tell you what my inclination is. My inclination is to grant those challenges except for [A.A.] Each of those jurors in my judgment said on the record that there are no circumstances under which they could vote to impose the death penalty, except for [A.A.] Well, I take it back. I'm sorry. [A.A.] said she didn't know if she could vote or not.
1 1
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836 So.2d 915 (Cite as: 836 So-2d 915)
juror should be excluded for cause based on his or her feelings concerning capital punishment: " ' "The proper standard for determining whether a prospective juror may be excluded for cause because of his or her views on capital punishment is 'whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." ' Wainwright v. Witt, 469 U.S. 412. 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); Gray v. Mississippi. 481 U.S. 648 [at 657-581, 107 S.Ct. 2045, 2051, 95 L.Ed.2d 622 (1987). 'The crucial inquiry is whether the venireman could follow the court' s instructions and obey his oath, notwithstanding his views on capital punishment.' Dutton v. Brown. 812 F.2d 593, 595 (10th Cir.), cert. denied, Dutton v. Maynard 484 U.S. 836, 108 S.Ct. 116, 98 L.Ed.2d 74 (1987). A juror's bias need not be proved with 'unmistakable clarity' because 'juror bias cannot be reduced to question and answer sessions which obtain results in the manner of a catechism.' Id. " ' "A trial judge's finding on whether or not a particular juror is biased 'is based upon determination of demeanor and credibility that are peculiarly within a trial judge's province.' Witt. 469 U.S. at 428, 105 S.Ct. at 854 [, 83 L.Ed.2d 841]. That finding must be accorded proper deference on appeal. Id. 'A trial court's rulings on challenges for cause based on bias *953 [are] entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion.' Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, Ex parte Nobis, 401 So.2d 204 (Ala.1981)." 'Martin v. State. 548 So.2d 488, 490-91 (Ala.Cr.App.1988), affirmed, 548 So.2d 496 (Ala.1989), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989). "[A] blanket, declaration of support of or opposition to the death penalty is not necessary for a trial judge to disqualify a juror." Ex parse Whisenhant, 555 So.2d 235, 241 (Ala.1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990).' "Based on the record before us, including the juror's unequivocal response that she would not be able to impose the death penalty in any case, we conclude that the trial court did not err in granting the State' s challenge for cause."
Page 33 of 48
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In this case, the prospective jurors indicated either that they could not vote' on the imposition of punishment or that they would not vote to impose the death penalty regardless of the evidence produced. Therefore, the trial court's granting of the State's challenges for cause did not constitute an abuse of the court's discretion and did not rise to the level of plain error. [66][67] The appellant also contends that the exclusion of these prospective jurors violated his right to be tried by a jury comprised of a fair cross -section of the community. Again, he did not present this claim to the trial court. Therefore, we review it under the plain error rule. Rule 45A, Ala. R.App. P. 502 So.2d 877 Johnson v. State, "In (Ala.Cr.App.1987), this court faced a similar fact situation . The appellant in Johnson argued that excluding veniremembers who expressed opposition to the death penalty denied him the right to a jury comprised of a fair cross-section of the community. The Johnson court relied on Lockhart v. McGee, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), in which the United States Supreme Court stated: " ' "The essence of a 'fair cross-section' claim is the systematic exclusion of 'a "distinctive" group in the community.' Duren [v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (4979) ]. In our view, groups defined solely in terns of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as the 'Witherspoon-excludables' at issue here, are not 'distinctive groups' for fair cross-section purposes." " 'Lockhart v. McCree, 476 U.S. at 174, 106 S.Ct. at 1765[, 90 L.Ed.2d 137].'
"Johnson, 502 So.2d at 879."

Clemons v. State, 720 So.2d 961, 973-74 (Ala.Cr.App. 1996), affd, 720 So.2d 985 (Ala.1998) , cert. denied, 525 U.S. 1124, 119 S.Ct. 907, 142 L.Ed.2d 906 (1999). Thus, the appellant's fair cross-section argument is without merit.
I
I
XIII.
[68][69][70][71][72][73] The appellant's thirteenth argument is that the trial court improperly admitted into evidence a bullet for which the State had allegedly not established a proper chain of custody. Dr. James Lauridson, who performed the autopsy
711 So.2d 1101, 1107 Dallas v. State, (Ala.Cr.App.1997), affd, 711 So.2d 1114 (Ala.), cert. denied, 525 U.S. 860, 119 S.Ct. 145, 142 L.Ed.2d 118 (1998).
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836 So.2d 915 (Cite as: 836 So.2d 915)
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on the victim's body , recovered a bullet from the *954 victim' s heart and testified that that wound caused the victim 's death. He testified that he placed the bullet in a manila envelope , sealed and initialed the envelope, and gave the envelope to Joe Saloom . Joe Saloom , the State's firearms and toolmarks expert, testified that James Sparrow, a forensic investigator who works for Dr . Lauridson, delivered the bullet to him in a sealed manila envelope. James Sparrow did not testify at trial, and the appellant objected to the admission of the bullet, arguing that the State had not established a chain of custody for it . The trial court overruled the appellant's objection , stating, " I'm going to admit it. It's a weak link, if anything." (R. 500.) "We have held that the State must establish a chain of custody without breaks in order to lay a sufficient predicate for admission of evidence. Ex parse Williams . 548 So. 2d 518 , 520 (Ala.1989) . Proof of this unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to assure the authenticity of the item. kL In order to establish a proper chain, the State must show to a 'reasonable probability that the object is in the same condition as, and not substantially different from , its condition at the commencement of the chain . McCruv v. State, 548 So.2d 573, 576 (Ala.Crim.App . 1988)."
1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997)). "While each link in the chain of custody must be identified , it is not necessary that each link testify in order to prove a complete chain of custody. Harrison V. State, 650 So.2d 603 (Ala.Crim.App.1994)." Ex parse v. Slaton, 680 So.2d 909 , 918 (Ala . 1996), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136. L.Ed.2d 680 (1997). Finally, "evidence that an item has been sealed is adequate circumstantial evidence to establish the handling and safeguarding of the item ." Lane v. State, 644 So.2d 1318, 1321 (Ala.Cr.App.1994). Although James Sparrow did not testify, the State presented sufficient evidence to show that the bullet was in the same condition when it was delivered to Saloom as it was when Dr. Lauridson removed it from the victim 's body. The absence of Sparrow's testimony constitutes , at most, a weak link in the chain of custody , which would go to the weight and credibility of the evidence rather than its admissibility . Smith v. State, 677 So.2d 1240 (Ala.Cr.App.1995 ); Knight v. State, 622 So.2d 426, 430 (Ala .Cr.App . 1992). [74] Moreover, even if there had been a break in the chain of custody for the bullet, Dr. Lauridson identified the bullet *955 that was introduced into evidence as the one he removed from the victim's body during the autopsy. "Physical evidence connected with or collected in the investigation of a crime shall not be excluded from consideration by a jury or court due to a failure to prove the chain of custody of the evidence . Whenever a witness in a criminal trial identifies a physical . piece of evidence connected with or collected in the investigation of a crime, the evidence shall be submitted to the jury or court for whatever weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break in the chain of custody concerning the physical evidence." 12-21-13, Ala.Code 1975 . Therefore , the trial court properly admitted the bullet into evidence. XIV. [75] The appellant' s fourteenth argument is that there was not sufficient evidence to support his conviction . Specifically , he contends that the evidence does not establish that the murder occurred during a robbery or that he was involved in a robbery.
Ex parse Holton, (Ala. 1991).
590 So.2d 918, 919-20
" ' "The purpose for requiring that the chain of custody be shown is to establish to a reasonable probability that there has been no tampering with the evidence." Er parse Jones, 592 So .2d 210, 212 (Ala.1991); Harrell v. State, 608 So.2d 434, 437 (Ala.Crim.App. 1992); Smith v. State, 583 So.2d 990 (Ala.Crim.App.1991 ), cert. denied, 583 So .2d 993 (Ala.1991).... Evidence has been held correctly admitted even when the chain of custody has a weak or missing link. Gordon v. State, 587 So .2d 427, 433 (Ala.Crim.App.1990), rev'd 587 So .2d 434 (Ala.), on remand, 587 So.2d 435 (Ala .Crim.App.), appeal after remand, 591 So-2d at 149 (Ala.Crim.App.1991 ); Shute v. State, 469 So .2d 670, 674 (Ala. Crirn.App.1984).' Davis v. State, 718 So. 2d 1148, 1161 (Ala.Cr.App.1995), affd, 718 So.2d 1166 (Ala.1998 ), cert. denied , 525 U.S. 1179, 119 S.Ct. 1117, 143 L.Ed.2d 112 ( 1999) (quoting Slaton v. State, 680 So .2d 879, 893 (Ala.Cr.App. 1995), affd, 680 So .2d 909 (Ala.1996), cert. denied, 519 U.S.
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Section 13A-5-40(a)(2), Ala.Code 1975, provides that a murder committed " by [a] defendant during a robbery in the first degree or an attempt thereof committed by the defendant" constitutes capital murder. "(a) A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he: "(1) Is armed with a deadly weapon or dangerous instrument; or "(2) Causes serious physical injury to another. "(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed." 13A-8-41, Ala.Code 1975. Section 13A-8-43, Ala.Code 1975, provides: "(a) A person conunits 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." Alabama's accomplice liability statute provides: "A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense: "(1) He procures, induces or causes such other person to commit the offense; or "(2) He aids or abets such other person in committing the offense; or "(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make."
13A-2-23, Ala.Code 1975.

"To sustain a conviction under 13A-5-40(a)(2) for capital robbery- murder, the state must prove beyond a reasonable doubt: (1) a 'robbery in the first degree or an attempt thereof,' as defined by 13A-8-41; (2) a 'murder,' as defined *956 by 13A-6-2(a)(1); and (3) that the murder was committed 'during' the robbery or attempted
robbery, i.e., that the murder was committed 'in the course of or in, connection with the commission of, or in immediate flight from the commission of the robbery or attempted robbery in the first degree, 13A-5-39(2). Connolly v. State, 500 So.2d 57 (Ala.Cr.App.1985), affd, 500 So.2d 68 (Ala.1986). The capital 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 in the act of intentionally killing the victim; the offense consists of two elements, robbing and intentional 536 So.2d 110 killing. Davis v. State, (Ala.Cr.App.1987); Magwood v. State, 494 So.2d 124 (Ala.Cr.App.1985), affd, Es parte Magwood. 494 So.2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). The intentional murder must occur during the course of the robbery in question; however, the taking of the property of the victim need not occur prior to the killing. Clark v. State, 451 So.2d 368 (Ala.Cr.App.), cert. denied, 451 So.2d 368 (Ala.1984). While the violence or intimidation must precede or be concomitant with the taking, it is immaterial that the victim is dead when the theft occurs. Thomas v. State, 460 So.2d 207 (Ala.Cr.App.1983), affd, 460 So.2d 216 (Ala. 1984). " 'As the Alabama Supreme Court held in Cobern v. State. 273 Ala. 547, 142 So.2d 869 (1962), "the fact that the victim was dead at the time the property was taken would not militate [against a finding] of robbery if the intervening time between the murder and the taking formed a continuous chain of events." Clements v. State, 370 So.2d 708, 713 (Ala.Cr.App.1978), affirmed in pertinent part, 370 So.2d 723 (Ala.1979); 451 So.2d 368, 372 Clark v. State, (Ala.Cr.App.1984). To sustain any other position "would be tantamount to granting to would-be robbers a license to kill their victims prior to robbing them in the hope of avoiding prosecution under the capital felony statute." Thomas v. State, 460 So.2d 207, 212 (Ala.Cr.App.1983), affirmed, 460 So.2d 216 (Ala. 1984). " 'Although a robbery committed as a "mere afterthought" and unrelated to the murder will not sustain a conviction under 13A-5-40(a)(2) for the capital offense of murder-robbery, see Bt (ford v. State, supra. O'Ptvv v. State, supra [642 S.W.2d 748 (Tex.Cr.App.1981) ], the question of a defendant' s intent at the time of the commission of the crime is usually an issue for the jury to
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resolve. Crowe v. State, 435 So.2d 1371, 1379 (Ala.Cr.App. 1983). The jury may infer from the facts and circumstances that the robbery began when the accused attacked the victim and the capital offense was consummated when the defendant took the victim's property and fled. Cobern v. State, 273 Ala. 547, 550, 142 So.2d 869, 871 (1962). The defendant' s intent to- rob the victim can be inferred where "[t]he intervening time, if any, between the killing and robbery was part of a continuous chain of events ." Thomas v. State, 460 So.2d 207, 212 (Ala.Cr.App. 1983), affirmed, 460 So.2d 216 (Ala.1984). See also Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); Crowe v. State, 435 So.2d 1371 (Ala.Cr.App.1983); Bufford v. State, 382 So.2d 1162 (Ala.Cr.App.), cert, denied, 382 So.2d 1175 (Ala.1980); Clements v. State, 370 So.2d 708 (Ala.Cr.App.1978), affirmed in pertinent part, 370 So.2d 723 (Ala.1979).'
"Connolly, 500 So.2d at 63." *957 Hallford v. State, 548 So.2d 526, 534-35 (Ala.Cr.App.1988), affd, 548 So.2d 547 (Ala.), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 ( 1989).
"It is sometimes said that a robbery committed as a 'mere afterthought' and unrelated to the murder will not sustain a conviction for the capital offense of murder-robbery. Connolly v. State, 500 So.2d 57 (Ala.Cr.App.1985), affd, 500 So.2d 68 (Ala.1986). However, the appellant's intent to rob the victim may lawfully and correctly be inferred where the killing and the robbery were part of a continuous chain of events.
548 So.2d 526 Hallford v. State, (AIa.Cr.App.1988), affd, 548 So.2d 547 (Ala.), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989)." 671 So.2d 125, 126 Harris v. State, (Ala_Cr.App.1995). Finally,
" '[i]n determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferencestherefrom , and consider the evidence in the light most favorable to the prosecution.' Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala. 1985), " ' "The role of appellate courts is not to say what the facts are . Our role, ... is to judge whether the evidence is legally sufficient to allow submission
of an issue for decision to the jury." Ex parse Bankston . 358 So- 2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury's verdict only where it reaches "a clear conclusion that the finding and judgment are wrong." Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962) . "The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust ." Bridges v. State. 284 Ala. 412, 420, 225 So. 2d 821 (1969).... A verdict on conflicting evidence is conclusive on appeal. Rober on v. State, 162 Ala. 30, 50 So . 345 (1909) . "[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense ." Fuller v. State. 269 Ala. 312, 333, 113 So.2d 153 ( 1959), cert. denied , Fuller v. Alabama. 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed. 2d 358 (1960).' Granger, 473 So.2d at 1139." " '... Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.' White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied , 423 U. S. 951, 96 : S.Ct. 373, 46 L.Ed.2d 288 (1975). 'Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.' Cochran v. State, 500 So .2d 1161, 1177 (Ala,Cr.App.1984 ), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985)."
White v. State, (Ala.Cr. App. 1989).
546 So.2d 1014, 1017
After instructing the jury on the elements of robbery-murder, the trial court defined the word "during" as follows: "The phrase 'during ,' ladies and gentlemen, means in the course of, the commission *958 of, or in connection with or in immediate flight from the commission of a robbery." (R. 92.) Thereafter , the trial court also instructed the jury on the principles of accomplice liability, or complicity , stating as follows:
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"I want to talk to you about what we call complicity. And the law is this. A person is legally accountable for the behavior of another person which constitutes a criminal offense if, with the intent to 'promote or assist in the commission of that offense, he aids or abets that other person in committing the offense. The words 'aid or abet' ... comprehend all assistance rendered by acts, words, encouragement, support, or presence, actual or constructive, to render assistance should it become necessary. "The State has the burden of proving beyond a reasonable doubt from the evidence that there was, by pre-arrangement or on the spur of the moment, a common enterprise, or adventure and that a criminal offense was contemplated before you would be justified in finding that the defendant, Mr. Jackson, aided or abetted. "A person cannot be an alder or abettor unless his purpose is to aid the commission of the offense charged in the indictment. Mere presence alone is not sufficient in order to make one an aider or abettor. "When two or more persons enter upon an unlawful purpose with a common intent to aid and encourage each other with anything within their common design, they are each criminally responsible for everything which may consequently and subsequently result from that unlawful purpose, whether specifically contemplated or not." (R. 97-99.) Applying those instructions to the evidence presented at trial, as set forth in this opinion and in the trial court's sentencing order, there was sufficient evidence to show that the murder occurred during a robbery. Therefore, the evidence was sufficient to support the appellant's capital murder conviction.
Page 36
twice for the same act, thus violating the Fourth, Fifth, Sixth, Eighth, and Fofirteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama law. The appellant makes only bare allegations that his Fourth, Sixth, Eighth, and Fourteenth Amendment rights were violated. Therefore, we will address only his Fifth Amendment argument. Section 13A-5-50, Ala.Code 1975, provides, in pertinent part: "The fact that a particular capital offense as defined in Section 13A-5- 40(a) necessarily includes one or more aggravating circumstances as specified in Section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence." *959 Accordingly, under 13A-5-50, Ala.Code 1975, a jury may consider an element of capital murder as an aggravating circumstance if that element is listed in 13A-5-49, Ala.Code 1975, as an aggravating circumstance. Further, this court has held that the use of an element of capital murder as an aggravating circumstance does not punish a defendant twice for the same offense. Burton v. State. 651 So.2d 641 (Ala.Cr.App.1993), affd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. I 115, 115 S_Ct. 1973, 131 L.Ed.2d 862 (1995). " 'This practice, known as "double counting" or "overlapping," has been upheld. Haney v. Stare, 603 So.2d 368 (Ala.Cr.App.1991), affd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993); Kuenael [v. State, 577 So.2d 474, 489 (Ala.Cr.App.1990), atT'd, 577 So.2d 531 (Ala.). cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991) ]. " 'Section 13A-5-50. Code of Alabama 1975, states, in part, as follows: " ' "The fact that a particular capital offense as defined in section 13A- 5-0(a) necessarily includes one or more aggravating circumstances as specified in section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence." " 'Clearly, 13A-5-50 provides that a jury may consider an element of capital murder as an aggravating circumstance if that element is listed in 13A-5-49. Further, this court has repeatedly held that the use of an element of capital murder in such a way does not, as the appellant argues, punish a defendant twice for the same offense.
Xv.
[87] The appellant's fifteenth argument is that the trial court improperly treated robbery as both an element of the capital offense and as an aggravating circumstance . This practice is commonly referred to as "double counting" or "overlapping." The appellant specifically contends that "the use of robbery both as an elevator in the guilt-phase and as an aggravator in the penalty- phase failed to narrow the class of cases eligible for the death penalty, resulting in the arbitrary imposition of the death penalty." (Appellant's brief at p. 58.) fie also contends that this "double counting" punished him
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Kuenzel, supra; see also Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied , 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). " ' "A capital punishment scheme, under which the same felony may form the basis of an essential element of the crime and an aggravating circumstance for consideration by the jury in recommending a sentence , does not constitute a denial of the guarantee against double jeopardy." 577 So.2d at 488, quoting it 'Kuen_el, Fortenherrv v. State, 545 So.2d 129, 142 (Ala.Cr.App.1988), affd, 545 So.2d 145 (Ala.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990).'
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grounds, 620 So 2d 709 (Ala.), cert. denied, 510 U.S. 905, 114 S.Ct. 285. '126 L.Ed.2d 235 (1993); Smith v. State, 581 So.2d 497 (Ala.Cr.App.1990), rev'd on other grounds, 581 So.2d 531 (Ala.1991); Ex parte Grayson, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985); Sparks v. Parker, 368 So.2d 528 (Ala.) , appeal dismissed, 444 U.S. 803, 100 S.Ct. 22, 62 L.Ed.2d 16 (1979). Moreover, the statute provides that counsel shall be paid for all hours spent in-court and shall be reimbursed for any expenses reasonably incurred as long as the trial court approves those expenses in advance. Therefore, the appellant's contentions are without merit.
"Burton, 651 So 2d at 657-58."

Hutcherson, 677 So.2d at 1201. Therefore, the appellant' s argument is without merit.
XVII.
[89] The appellant's seventeenth argument is that Alabama's method of execution constitutes cruel and unusual punishment. However, both Alabama courts and the United States Supreme Court have repeatedly held that the death penalty is not per se cruel and unusual punishment and that electrocution as a means of capital punishment does not constitute cruel and unusual punishment Williams v. State, 627 So.2d 985 (Ala.Cr.App. 199 1), affd, 627 So.2d 999 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d ,fitt v. Florida, 428 U.S. 242, 96 235 (1983); S.Ct. 2960, 49 L.Ed.2d 913 (1976); Furman V. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Bovkin v. State, 281 Ala. 659, 207 So.2d 412 (1968), reversed on other grounds, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). [90] The appellant also argues that Alabama's method of electrocution is unreliable and that it therefore constitutes cruel and unusual punishment. He contends that the State "will utilize faulty equipment, unqualified personnel , and inadequate procedures " in executing him. (Appellant's brief at p. 60.) In support thereof, he asserts that Alabama's electric chair has malfunctioned during two of the last ten executions, and he specifically refers to several executions that he contends were "botched." We addressed a similar argument in McNair v. State. 706 So.2d 828 (Ala.Cr.App.1997), cert. denied , 523 U.S. 1064, 118 S.Ct. 1396, 140 L.Ed.2d 654 ( 1998), in which we held: " 'The United States Supreme Court addressed the
XVI.
[88] The appellant' s sixteenth argument is that "the Alabama statute limiting court-appointed attorneys' fees to one thousand dollars for out-of- court work for each phase of trial is deplorable and unconstitutional." (Appellant's brief at p. 59.) Section 15-12-21(d), Ala.Code 1975, limits fees for court-appointed attorneys to $1,000 for out-of-court work in a capital trial, based on a $20 hourly rate. He contends that this limitation on compensation violates the separation of powers doctrine, constitutes a taking without just compensation, deprives indigent capital defendants of the effective assistance of counsel , and denies equal protection in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama state law. These claims have previously been addressed and decided adversely to the appellant. Stewart v. State, 730 So.2d 1203 (Ala.Cr.App.1996), affd, 730 So.2d 1246 (Ala.1999); Ex parte Smith. 698 So.2d 219 (Ala.), cert. denied, *960522 U.S. 957, 118 S.Ct. 385, 139 LEd.2d 300 (1997); Boyd v. State. 715 So.2d 825 (Ala.Cr.App.1997), affd, 715 So.2d 852 (Ala.), cert. denied, 525 U.S. 968, 119 S.C1. 416, 142 L.Ed.2d 338 (1998); Slaton v. State. 680 So.2d 879 (Ala.Cr.App.1995), affd, 680 So.2d 909 (Ala.1996), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997); May v. State, 672 So.2d 1310 (Ala.1995); Barbour v. State, . 673 So.2d 461 (Ala.Cr.App.1994), affd, 673 So.2d 473 (Ala.1995), cert. denied, 518 U.S. 1020, 116 S.Ct. 2556, 135 L.Ed.2d 1074 (1996); Johnson v. State. 620 So.2d 679 (Ala.Cr.App.1992), rev'd on other
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death by electrocution issue in In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890). In determining what constitutes cruel and unusual punishments, the Court stated: "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It 'implies there is something inhuman and barbarous ,--something more than the mere extinguishment of life." Id. at 447, 10 S.Ct. at 933. In holding that such a punishment is not cruel or unusual, the Court reasoned "that this act was passed in the effort to devise a more humane method of reaching the *961Spinkellink v. Accord result" . Id. Wainwright, 578 F.2d 582, 616 (5th Cir.1978). Appellant's contention is therefore without merit; death by electrocution does not amount to cruel and unusual punishment per se, but is a constitutional means of imposing a sentence of death.' 516 So.2d 726, 737 "Jackson v. State, (Ala..Cr.App.1985), remanded on other grounds, 516 So.2d 768 (Ala.1986). "The appellant also contends that trial counsel should have argued that Alabama ' utilizes inadequate equipment, unqualified personnel, and inadequate procedures' and that Alabama's electric chair has consistently resulted 'in excessive burning and mutilation of condemned prisoners and rendered death by electrocution in Alabama unpredictable and consistently torturous,' as, he asserts, is evidenced by the executions of Horace Dunkins and John Evans (in those executions repeated applications of electrical current were required because of a malfunction in the apparatus) and by the executions of Dunkins, Michael Lindsay, and Wayne Ritter (post-execution examinations revealed burns to portions of the prisoners' bodies). " 'In Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947), the United States Supreme Court, in addressing the issue of whether it was cruel for a state to electrocute a prisoner after the state's first attempted electrocution failed, stated: " ' "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. The fact that an unforeseeable accident prevented the prompt
Page 38
consummation of the sentence cannot, it seems to us, add an element of 'cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution.... We cannot agree that the hardship imposed upon the petitioner rises to that level of hardship denounced as denial of due process because of cruelty." "'Id. at 464, 118 S.Ct. 1396, 67 S.Ct. at 376-77. 'The very issues raised by appellant here were addressed in Ritter- v. Smith, 568 F.Supp. 1499 (S.D.Ala.1983), afrd in part, rev'd in unrelated part, 726 F.2d 1505 (1 1 th Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 218[, 83 L.Ed.2d 148] (1984) , wherein the court adopted the opinion and views expressed by Judge Sam C. Pointer after a hearing on the issues, in Raines v. Smith, No. 83-P-1080-S (N.D.Ala.) (unpublished order entered June 3, 1983) (certified copy attached as Appendix, Ritter v. Smith, 568 F.Supp. at 152527). The claims presented to Judge Pointer were as follows: (1) given the nature of the equipment and the procedures used, there was unnecessary and wanton infliction of pain and suffering upon persons subject to electrocution in Alabama; (2) the equipment and method involve an unreliable method of execution; and (3) electrocution involves, in its method and equipment, a mutilation of the body which should be viewed as contrary to and violative of the Eighth Amendment. Id. at 1525-26. 'After an evidentiary hearing, Judge Pointer held that the claims were due to be dismissed. Id. at 1527. In reaching this decision, Judge Pointer noted that the testimony established that over the past 50 *962 years the chair in question had been used approximately .154 times without any failure; that Evans suffered no pain after the initial shock; and that the possibility that the chair may malfunction at some time in the future does not render its use unconstitutional. Id. at 1526. Judge Pointer relied upon Francis v. Resweber and In re Kenimler [, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890),] in holding that Alabama's method of electrocution is constitutional. Id. at 1526-27. We agree. " There is no evidence before this court that contradicts the findings made by Judge Pointer. There has been absolutely no showing that the State's method of enforcing a death sentence inflicts any more pain than is absolutely necessary. It has not been established that the
I
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836 So.2d 915 (Cite as: 836 So.2d 915)

equipment used in the electrocution of John Lewis Evans malfunctioned or that Evans felt anything after the first split second of the first jolt of electricity administered.'
Page 39 the appellate courts of, this state. See, e.g., & parte Jones, 456 So.2d 380, 381-83 (Ala.1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985); McMillian v. State, 594 So.2d at 1272; Parker v. State. 587 So.2d 1072, 1098 (Ala.Cr.App. 199 1). See also Ex parte Giles, 632 So.2d 577 (Ala.1993) (holding *963 that
Ala. Const. I1 'does not preclude judicial override of the jury's sentencing recommendation in a capital case'). "The trial court's sentencing order reflects the fact that the court gave 'consideration to the recommendation of the jury in its advisory verdict that the defendant be sentenced to life without parole.' R. 65. The court, however, after independently weighing the aggravating and mitigating circumstances, determined that the aggravating circumstance outweighed the mitigating circumstances and chose not to accept the jury's recommendation. Constitutional and statutory provisions require no more."
"Jackson, 516 So.2d at 738."

706 So.2d at 846-47. Thus, the appellant's arguments about Alabama's method of execution are without merit.
XVIII.
[91] The appellant's eighteenth argument is that the trial court improperly overrode the jury' s unanimous recommendation that he be sentenced to imprisonment for life without -the possibility of parole. In support thereof, he complains that "Alabama is the only state in the country which allows trial courts to reject jury capital sentencing verdicts without reference to any uniform norm or standard." (Appellant's brief at p. 62.) He further contends that, "[b]ecause the override is standardless in Alabama, there is a haphazard and inconsistent application of the ultimate sanction in a manner that is inconsistent with the precedents of the Supreme Court-" (Appellant's brief at p. 65.) We have previously addressed and rejected similar arguments in Carr v. State, 640 So.2d 1064 (Ala.Cr.App.1994), and in Bush v. State, 695 So.2d 70 (Ala.Cr.App.1995), affd, 695 So.2d 138 (Ala.), cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139 L.Ed.2d 320 (1997). In Carr, we explained: "The appellant maintains that the jury override provision of Ala.Code 1975, 13A-5-47(e), is unconstitutional. He claims that the statute contains no guidelines for the sentencing judge to follow and that the statute violates the Eighth Amendment, particularly in a case where, as here, the jury unanimously recommends a sentence of life imprisonment without parole. "Sentencing by a jury is not constitutionally required. Spasiano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). Proffitt v. Florida, 428 U.S. 242, 251-52, 96 S.Ct. 2960, 2966-67, 49 L.Ed.2d 913 (1976), and 13A-5-47( e) set 'out a standard of review for jury override that meets constitutional requirements.' McMillian v. State, 594 So.2d 1253, 1272-73 (Ala.Cr.App. 199 1), remanded on other grounds, 594 So.2d 1288 (Ala.1992). The argument that the jury override provision of 13A-5-47(e) is constitutionally infirm because it allows for the 'arbitrary and standardless' imposition of the sentence of death has been repeatedly rejected by
1
1 1 1
Carr, 640 So.2d at 1073-74.

"The appellant's contention that the override provision of 13A-5-47(e) is facially unconstitutional is without merit. The United States Supreme Court, as well as the courts of this state , have consistently upheld the validity of the judicial override of advisory jury verdicts. See, e.g., Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995); Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); Spa_iano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) ; Ex parte Jones, 456 So.2d 380 (Ala.1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985); Freeman v. Stale, 555 So.2d 196 (Ala.Cr.App.1988), affd, 555 So.2d 215 (AIa.1989), cert. denied, 496 U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d 284 (1990). In this state, the recommendation of the jury is advisory only and is not binding upon the trial court. Ex parte Jones. The trial court, not the jury, is the sentencing authority. Freeman v. State. "Section 13A-5-47(e) prescribes the following standard of review for jury override, which standard meets constitutional requirements: 'The whole catalog of aggravating circumstances must outweigh mitigating circumstances before a trial court may opt to impose the death penalty by overriding the jury's recommendation.' Ex parte Jones, 456 So.2d at 382. The appellant's argument that the Alabama Death Penalty Act permits a trial court to impose a death sentence
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836 So.2d 915 (Cite as : 836 So.2d 915)

without any standards to guide its discretion is simply not true and ignores the requirements of the override provision. "The appellant argues that we should follow the Florida standard for jury override prescribed in Tedder v. State, 322 So.2d 908 (Fla.1975). Tedder provides that, in order for a trial court to reject a jury's recommendation of a sentence of life imprisonment without parole, 'the facts suggesting a sentence of death [must be] so clear and convincing that virtually no reasonable person could differ.' Id. at 910. The Tedder standard is not constitutionally mandated, Harris v. Alabama: Ex parte Jones, and we have chosen not to read the Tedder standard into our death penalty statute. "What we do require is that, before sentencing a defendant to death, the trial court consider all the available evidence; hear arguments on aggravating and mitigating circumstances; enter written findings of fact summarizing the crime and the defendant's participation in it; make specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in 13A-5-49, each mitigating circumstance enumerated in 13A-5-51, and any additional mitigating circumstance offered pursuant to 13A- 5-52; consider and weigh the advisory verdict of the jury; consider and weigh the presentence investigation report; consider and weigh , the mitigating and aggravating circumstances; ' and determine. *964 that the aggravating circumstances outweigh the mitigating circumstances. We believe that this scheme adequately channels the trial court's discretion so as to prevent arbitrary results. The Eighth Amendment does not require the state to define the weight the sentencing judge must accord an advisory verdict. Harris v. Alabama. " '[T]he sentencing authority in Alabama, the trial judge, has unlimited discretion to consider any perceived mitigating circumstances , and he can assign appropriate weight to particular mitigating circumstances . The United States Constitution does not require that specific weights be assigned aggravating and mitigating to different circumstances . Murrw v. State, 455 So.2d 53 (Ala.Cr.App. 1983), rev'd on other grounds, 455 So 2d 72 (AIa.1984). Therefore, the trial judge is free to consider each case individually and determine whether a particular aggravating circumstance outweighs the mitigating circumstances or vice versa. Moore v. Balkcom,
Page 40
11
716 F.2d 1511 (11th Cir.1983). The determination of whether the aggravating mitigating circumstances outweigh the circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation.' "Clisby v. State. 456 So.2d 99, 102 (Ala.Cr.App.1983). We are convinced, after reviewing the record in this case , that the trial court complied with the sentencing scheme of Alabama's death penalty statute and that the sentence that it imposed, overriding the jury's verdict, met constitutional requirements and was not arbitrary, discriminatory, or fundamentally unfair."
Bush, 695 So.2d at 93-94.

Similarly, for the reasons set forth in this opinion, we conclude that the trial court complied with the sentencing requirements of Alabama's death penalty statute in overriding the jury's verdict and in sentencing the appellant to death. We further note that, in its sentencing order, the trial court specifically explained its reasons for overriding the jury's advisory verdict. Therefore, the trial court did not improperly override the jury's unanimous recommendation that the appellant be sentenced to imprisonment for life without the possibility of parole for the capital conviction. M. The appellant' s nineteenth argument is that he is entitled to a new trial based on the cumulative effect of the above-alleged errors. However , we have reviewed those claims individually and have not found any error. Likewise , we have considered those claims cumulatively , and we still do not find any error that requires a new trial . Thus, this contention is without merit.
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XX.
Pursuant to 13A-5-53, Ala.Code 1975, we must address the propriety of the appellant's conviction and sentence of death. The appellant was indicted and convicted of capital murder because he committed the murder during the course of a robbery in the first degree. See 13A-5-40(a)(2), Ala.Code 1975. [92] The record does not indicate that the sentence of death was imposed as a result of the influence of passion, prejudice, or any other arbitrary factor.
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836 So.2d 915 (Cite as : 836 So -2d 915) 13A-5-53( 6)(I), Ala.Code 1975.
The trial court found that the aggravating the mitigating circumstances . outweighed circumstances . The trial court found *965 that the State proved two aggravating circumstances: 1) the appellant committed the capital offense while he or an accomplice was engaged in the commission of a robbery, 13A- 5-49(4), Ala.Code 1975, and 2) the appellant committed the capital offense while he was under sentence of imprisonment, 13A-5-49(1), Ala.Code 1975. The trial court found mitigating that there was one statutory circumstance--the appellant was 18 years old at the time of the offense, 13A-5-51(7), Ala.Code 1975. The trial court also found the following nonstatutory mitigating circumstances: 1) the appellant voluntarily surrendered to the police; 2) the appellant did not attempt to evade his probation officer once he had been declared delinquent; 3) the appellant was truthful to his mother and was no trouble at home; 4) the appellant was not violent toward. his girlfriend; 5) the appellant, according to his aunt, is a truthful person; and 6) the appellant exhibited remorse about the crime. The sentencing order shows that the trial court weighed the aggravating and mitigating circumstances and, as set forth in Part IV of this opinion, carefully considered the jury's advisory verdict. We conclude that the trial court's findings are supported by the record and that it correctly sentenced the appellant to death. [93] Section 13A-5-53( b)(2) requires us to weigh the aggravating and mitigating circumstances independently to determine the propriety of the appellant's sentence of death . After independently weighing the aggravating and mitigating circumstances , we find that the death sentence is appropriate. [94] As required by 13A-5-53(b)(3), we must determine whether the appellant's sentence was disproportionate or excessive when compared to the penalties imposed in similar cases. The appellant murdered the victim during the course of a robbery in the first degree . Similar crimes are being punished by death throughout this state. Gaddy v. State. 698 So .2d 1100 (Ala.Cr. App.1995), affd, 698 So .2d 1150 (Ala.), cert. denied, 522 U. S. 1032, 118 S.Ct. 634, 139 L.Ed.2d 613 ( 1997); Bush v. State, 695 So .2d 70 (Ala.Cr.App.1995), affd, 695 So.2d 138 (Ala.), cert. denied, 522 U. S. 969, 118
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S.Ct. 418, 139 L.Ed.2d 320 (1997); Payne v. State, 683 So .2d 440 (Ala.Cr.App.1995), affil. 683 So.2d 458 (Ala. 1996), cert. denied, 520 U.S. 1146, 117 S.Ct. 1319, 137 L.Ed.2d 481 (1997); Windsor v. State. 683 So.2d 1027 (Ala.Cr.App.1994), affd, 683 So.2d 1042 (Ala.1996), cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997); Burton v. State, 651 So.2d 641 (AIa.Cr.App.1993 ), affd , 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995) . Accordingly, we conclude that the sentence was neither disproportionate nor excessive. Finally, we have searched the entire record for any error that may have adversely affected the appellant's substantial rights, and we have not found any. Rule 45A, Ala. R.App. P. Accordingly, we affirm the appellant's convictions and sentences as to both the capital offense and the theft offense. AFFIRMED.
LONG, P.J., and McMILLAN, COBB, and FRY, JJ., concur.
APPENDIX' Trial Court's Order Dated June 25, 1998 1. SYNOPSIS

Lefrick Moore (Moore) was shot and killed on April 25, 1997, by Shonelle Jackson (Jackson). The motivation for the homicide was the theft of the stereo system from Moore's car. Jackson was convicted of the capital offense, and the jury recommended that he be punished by imprisonment *966 for life without the possibility of parole.
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Il. PROCEDURAL HISTORY

Jackson [FN I ] was indicted in a four-count indictment for (1) the capital murder of Moore during a robbery in the first degree, Ala. Code 13A-5- 40(2); (2) the capital murder of Moore pursuant to 13A-5-40(a)(17); (3) theft of an automobile belonging to Ms. Lottie Flowers; and (4) an alternative count of receiving stolen property in the first degree (Ms. Flowers' automobile). The charge of capital murder pursuant to 13A-5-40(a)(17) was dismissed before trial, and at trial, the State elected to proceed on the charge of
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theft of property in the first degree and the charge of receiving stolen property was dismissed.
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FN1. Antonio Barnes, Eric Williams and Christopher Rudolph were also indicted for this capital offense. They testified against Jackson without any inducement by the State. Each appeared to attempt to lessen their indivi4ual culpability and shift blame to the other co-defendants. All had an interest in casting Jackson as the leader and prime culprit.
The jury returned verdicts of guilty of capital murder and theft of property in the first degree; and after a separate sentencing hearing, the jury recommended by a vote of 12-0 that Jackson be punished by life imprisonment without the possibility of parole.
III. THE VICTIM

Lefrick Moore was 23 years old, and he was married and the father of one child. IV. SUMMARY OF THE CRIME AND JACKSON'S PARTICIPATION The events which led to Moore's homicide started April 24, 1997, and were unrelated to Moore. On that evening, "Cocomo" slapped Jackson at a nightclub. The next day, April 25, Jackson determined to look for Cocomo and the tendencies of the evidence are that Jackson intended to do Cocomo physical injury, should he be found. Jackson did not have a car. He approached Antonio Barnes about stealing a car for him. [FN2] Barnes readily agreed, and Barnes and Jackson solicited "Wendel" to drive them to Brookview Apartments, where Jackson and Barnes stole Ms. Flowers' car. Barnes actually broke into the car and Jackson stood lookout.
Jackson was armed with a .380 caliber semiautomatic pistol; Barnes was armed with a .357 magnum handgun; Rudolph was armed with a 9 millimeter pistol; and Williams was armed with a shotgun. The search for Cocomo was futile; however, near the Smiley Court housing neighborhood, they saw Moore driving his car. Williams told the group that he was familiar with the car and the driver, and that the car had good music. Jackson then announced that "they" were going to rob the people in Moore's car. They stalked Moore until the opportunity presented itself to cut off Moore's car. Jackson passed Moore's car and cut in front of it to stop Moore. The cars collided and Jackson and Williams jumped out as Moore and the passenger in the car, Gerard Burdette, were getting out. At this point, Jackson and Williams fired their weapons. Before firing, however, Jackson said to Moore, "no need to run, motherfucker." [FN3] Jackson shot Moore, and Moore ran 100 to 150 yards, at which point *967 he collapsed and died. Jackson drove to where Moore lay, and Jackson's purpose was to rifle through Moore's pockets. [FN4] Barnes and Williams got into Moore's car and left the scene. They hid the car, and Williams took the stereo from the car. The next day, Jackson wanted to strip the car, and he, Barnes and "Fido" went to where the car was hidden; however, a Mr. Porterfield interrupted them and they left without stripping the car. On this same day, Williams told Jackson that Moore was dead, to which Jackson replied, "I don't give a fuck, he didn't stay where we stayed at."
FN3. This statement is attributed to Jackson by Eric Williams.
FN4. Id.
Jackson turned himself in - to the Montgomery Police Department after learning that he was wanted for questioning. He gave three conflicting statements to detectives. In the first statement he denied any knowledge of the event. He later said that he was with Deon driving around looking for Cocomo in a stolen car but had no involvement in the murder. In the final statement he admitted that he was at the scene and armed With a .380 pistol; however, he denied shooting Moore.
FN2. The evidence established that Barnes is known as a car thief.
Jackson, Barnes, Eric Williams, and Christopher Rudolph then commenced the search for Cocomo.
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836 So.2d 915 (Cite as: 836 So .2d 915) V. AGGRAVATING CIRCUMSTANCES
The State argues that it proved two aggravating circumstances: (1) that the capital offense was committed while Jackson was engaged in or was an accomplice in the commission of a robbery, 13A-5-49(4); and (2) that the capital offense was committed by a person under sentence of imprisonment, 13A-5-49(1). The Court finds that the State proved both aggravating circumstances beyond a reasonable doubt. The 13A-5-49(4) sentencing aggravating circumstance is the mirror of 13A-5 -40(2) guilt "aggravator," and when die . jury found Jackson guilty of the capital offense, the jury found the sentencing aggravator beyond a reasonable doubt. The Court's independent examination of the evidence , as summarized in section [IV .], leads the Court to hold that the jury's verdict in the guilt phase on this aggravator is highly reliable and the Court independently finds that the State proved this circumstance beyond a reasonable doubt. It is undisputed that when Jackson committed the offense he was on probation on suspended sentences for convictions of burglary in the second degree and theft of property in the first degree (CC-95-2147-EWR) and possession of marijuana in the first degree (CC-95-2367-EWR).
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Windsor v. State. 633 So.2d 1027 (Ala.Crim.App.1904), atfd, Ex parte Windsor. 683 So.2d 1042 (Ala.1996).
The Court finds that the capital offense was not committed while Jackson was under the influence of extreme mental or emotional disturbance. There is no evidence that Jackson suffered any mental illness or mental instability or that his *968 actions were motivated by anything other than his desire to commit the theft of the stereo from Moore's automobile. The Court finds that Moore was not a participant in Jackson's conduct and the Court finds that Moore did not consent to Jackson's conduct. No evidence supports this circumstance. The Court finds that the Defendant was not an accomplice in the capital offense committed by another and the Court finds that his participation was not relatively minor; to the contrary , Jackson was the ringleader in this offense, and there is evidence that he was the shooter. [FN6]
FN6. There is also evidence that suggests that Barnes, not Jackson, fired the shot that killed Moore. See infra.
VI. MITIGATING CIRCUMSTANCES

Jackson suggests one statutory mitigating circumstance ; he was 18 years old at the time of the offense . 13A-5-51( 7). He suggests two nonstatutory mitigating circumstances: ( 1) that he voluntarily surrendered to the police ; and (2 ) that he did not evade or resist arrest and he did not avoid his probation officer after he was declared a delinquent probationer. a. Statutory Mitigating Circumstances The Court finds that Jackson has a significant history or prior criminal activity. [FNS] The court finds that Jackson did not act under extreme duress or under the substantial domination of another person. There is no evidence of any form of duress and, as stated above, Jackson was the ringleader. The Court finds that there is no evidence which suggests that Jackson lacked the capacity to appreciate the criminality of his conduct, and there is no evidence that he lacked the ability to conform his conduct to the requirements of law. Jackson was 18 years old at the time of the commission of this offense. The Court finds that his age is a mitigating circumstance, but it is due slight weight for the reasons stated below. When considering the weight to be given to Jackson's age as a mitigating factor, this case is quite similar to Shellito v. State, 701 So.2d 837 (Fla. 1997).
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FN5. His juvenile record is not a matter to consider when determining whether the circumstance exists. Freeman V. State, 651 So.2d 576 (Ala.Crim.App.1994). Jackson has three prior felony convictions.
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At the time of the homicide , Jackson was 6 feet tall, weighed 175 pounds and was within 35 days of being 19 years old. He is now 20 years old. At the time of the offense he apparently was, and he is, a physically mature adult. The victim was 23 years old. Jackson's criminal record started at age 12 in juvenile court. He was arrested eight times as a juvenile, and he was adjudicated guilty of four felonies (burglary in the third degree , theft of property in the second degree, robbery in the first degree, and robbery in the first degree ), and he was committed to the Department of Youth Services on adjudications for assault in the. third degree and two charges of robbery in the first degree . At age 17 he was waived from the juvenile court to adult court for prosecution on charges of burglary in the second degree, theft of property in the first degree, and possession of marijuana in the first degree. Jackson's combined criminal record shows that he has been arrested 13 times and he has been charged with 14 separate crimes --five of which are felonies. Two of the felonies and one misdemeanor (assault in the third degree ) are violent crimes . He was on probation for three felonies at the time he committed the homicide. He is the father of a three-month-old child. According to the presentence report, he was a daily user of marijuana since age 14 and a regular consumer of alcohol . He does not consider his marijuana use or his alcohol consumption a problem. Jackson's age is a marginal mitigating circumstance . Shellito at 843. b. Nonstatutory Mitigating Circumstances i. General The Court finds as a mitigating circumstance that Jackson voluntarily surrendered to the police; however, this mitigating circumstance receives slight weight *969 inasmuch as Jackson denied any responsibility in this matter and attempted to avoid all responsibility. The Court finds that it is a mitigating circumstance that Jackson did not attempt to evade his probation officer once he had been declared delinquent. But, the Court gives this mitigating circumstance little weight inasmuch as the delinquent charge or charges did not grow out of the incident involving
Moore; rather, they grew out of other violations of his probation. The Court finds as a mitigating circumstance that Jackson was truthful to his mother and was no trouble at home; however, she further testified that he had no violent tendencies and he had only minor scrapes with the law . In view of his juvenile record and his adult criminal record , either Ms. Jackson was mistaken or her testimony was colored by her motherly love and motherly instincts . The record reflects that Jackson in fact has violent tendencies as exhibited by two juvenile adjudications for robbery in the first degree and an adjudication for assault in the third degree , and it can hardly be said that his involvement with the law was minor. Therefore, the Court gives little weight to this mitigating circumstance. The Court finds as a mitigating circumstance that Jackson was not violent toward his girlfriend, and that, according to his aunt, he is a truthful person. However, in view of his overall criminal history and his apparent untruthful statements to police officers, the Court gives these circumstances slight weight. The Court has examined the record for other evidence of non-statutory mitigating circumstances. In this regard, the court has examined Jackson's statement in the presentence report. His statement does exhibit remorse; however, it appears to the Court that just as Jackson did in his statements to the police, he is still attempting to avoid responsibility for this offense; and in view of his criminal history the Court has a legitimate basis to doubt and the Court does doubt the bona fides of his expressed remorse. ii. The Advisory Verdict Section 13A -5-47(e) requires that the Court consider the advisory verdict in determining Jackson's sentence. Whether the advisory verdict of life imprisonment without the possibility of parole is considered a mitigating circumstance is an unsettled issue . See Lewis v. State, 398 So.2d 432 (Fla.1981 )(jury recommendation of life without parole is considered a mitigating circumstance). But Ed Carnes ( now Judge Ed Carnes of the Eleventh Federal Judicial Circuit ) opined in 1981 that the life recommendation is not a mitigating circumstance . E. Carnes , Alabama's 1981 Capital Punishment Statute, 42 Ala. Law. 456, 490 n. 37
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836 So.2d 915 (Cite as: 836 So .2d 915) (July 1981). The court is not cited to any Alabama case that speaks to this issue.
The death acts of Alabama, Florida, and Indiana allow the sentencer--the trial judge--to override or not accept the advisory verdict; however, unlike the states of Florida and Indiana, neither the Alabama Death Act nor Alabama case authority informs the trial court how it is to consider the advisory verdict. [FN7]
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this case to other similar reported cases; and (2) to test the reliability of the advisory verdict. The Court initially determined that it was more appropriate to compare similar cases because the Court thought that this case could be approximately measured against a standard, and to this end the Court required counsel to inform the Court of the sentences in other similar cases. However, in the final analysis, this method did not prove entirely satisfactory because sentencing is ultimately judge done and what intrinsically drives the sentence is never truly discernable. The State has proffered five cases for the Court's consideration: Lynn v. State, 477 So.2d 1365 (Ala.Crim.App.1984); Hart v. State, 612 So.2d 520 (Ala.Crim.App.1992); Carr v. State, 640 So.2d 1064 (Ala.Crim.App.1994); DeBruce V. State. 651 So.2d 599 (Ala.Crim.App.1993); Cothren v. State, 705 So-2d 849 (Ala.Crim App. 1997). The Court has read and considered each case, and although none is identical to the case sub judice. each contains some parallels and the Court is satisfied that taken together they offer a sufficient basis to compare against the sentencing verdict delivered by the jury in this case. The Court has not ignored the response of the defense. The Court does not accept as controlling the oft-repeated statistic that "approximately twothirds of death penalty cases in Alabama are result of murder during the course of a robbery." Guthrie v. State, 689 So.2d 948, 949 (Ala.Crim.App.1996). The defense makes a point that the appellate courts do not refer to the cases in which .the death penalty is not imposed. The defense appears to argue that the analysis is not case-specific, which it suggests is constitutionally required to determine whether there is true proportionality in death sentencing . Whether this is correct as a matter of law is not an issue for this Court to answer. Having considered the advisory verdict and the cases proffered by the State, the court concludes that a verdict of death in this case would not be disproportionate or excessive when considered against the cases cited above. [FN8]
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FN7. The holding in Roark v. State, 644 N.E.2d 565 (Ind.1994), reh'g denied, --N.E.2d ---- (Ind. 1995), );e some extent, and to a greater extent the holding in Tedder v. State, 322 So.2d 908 (Fla.1975), direct trial judges' consideration of the advisory verdicts in those states. Indiana requires that "at the point of final decision the [trial] court reflect upon the jury recommendation against imposing death." Roark at 570. However, the appellate court's independent review when the jury has recommended life and the trial judge sentences to death is guided by the standard of Martine-- ChaveF v. State. 539 N.E.2d 4, 5 (Ind.1989), which requires that before the death sentence is affirmed "it must appear ... [to the court] that all the facts available in the record point so clearly to the imposition of the death penalty that the jury's recommendation is unreasonable ." Roark at 571 . It is not unreasonable to consider that an Indiana trial court judge may impose this standard sub silentio. Before a Florida trial judge can override the jury's life verdict, "the facts suggesting a sentence of death should be so clear and convincing that no reasonable person could differ." Tedder at 910. Thus far Judge Colquitt's expectation that "Alabama appellate courts can reasonably be expected to develop and apply restrictions to a trial judge's power to reflect a sentence recommended by a jury" has not been realized . J.A. Colquitt, The Death Penalty Laws of Alabama, 33 Ala.L.Rev. 213, 328 (1982).
FN8. The approach would be a neater fit if the jury had returned an advisory verdict recommending death.
When considering the advisory verdict the Court considered two approaches: (1) *970 to compare
The alternative approach to complying with the
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statutory mandate that the Court "consider" the advisory verdict is for the Court to test the reliability of the advisory verdict. To effectively utilize this approach, the Court should presume that the sentencing verdict was not driven by or partially a product of the guilt- phase verdict. [FN9] However, as will be pointed out *971 below, the approach is less satisfactory than the comparison approach.
set out evidence before, the jury that was not produced by testimony, and that is the statement of Gerard Burdette, the passenger in Moore's car. A written transcript of this statement to police was put into evidence and provided to the jury in lieu of his testimony, because Burdette could not be located at the time of trial. According to Burdette, he was very "tight" with Moore. Transcript, unnumbered p. 9, question 4 and answer. Therefore, die Court presumes his statement would be favorable to Moore. His statement, not surprisingly, varies from the testimony given by Barnes, Williams, and Rudolph. Burdette's version of the event is "Got out they window and pointed - they gun, and told us, say, 'Don't move.' ... And at first they shot out the window when they got out the window.... Then we got out and ran , and they just kept shooting." He said there were at least three people in the other car, maybe four; and he saw a black long .38 or maybe .357. "1 think it was a .38 though, brown handle." One of the people in Jackson's car (the chubby one) he had seen the day before. Transcript, p. 7. Burdette did not identify anyone with a .380 automatic, and he did not specifically enumerate how many people fired shots. He said he heard four to five shots (p. 8), and because he said he saw two persons with weapons, it could be reasonably inferred that the one or both fired. This latter point. is consistent with the trial testimony. However, according to Burdette, and the medical examiner's opinion of the type bullet that killed Moore, the person with the .38 or .357 would have fired the fatal shot. That person was Barnes, assuming the testimony can be reconciled, because the evidence from Barnes and Williams is that Barnes had a .357. When the Court takes Burdette's testimony into account, there are several explanations for the advisory verdict. First, the jury could have been swayed by the pleas for mercy that were made by Jackson's family members and his aunt. Secondly, the jury could have concluded that all codefendants were equally culpable, and although the codefendants testified they were not offered leniency by the State, the *972 jury may have concluded that they would ultimately be treated differently by the State and the Court. In short, the jury may have reasoned that the State would not seek the death penalty against the codefendants so
1 1 1
FN9. The Court is not convinced that indulging in this presumption is realistic. The jury deliberated for 35 minutes before returning its advisory verdict. As observed by Judge James L. Clement in State of Indiana v. Dennis R. Roark, Cause No. 45G04-8902-CF-00017 (Lake County Indiana Superior Court, Criminal Division, October 29, 1992): "In the death penalty or sentencing state of this trial, the jury deliberated only thirty-five to forty minutes before returning a recommendation that the death penalty not be imposed . I am not suggesting this time of deliberation is a significant factor in my decision, but one has to wonder whether the jury had time to carefully evaluate and balance the aggravating and mitigating circumstances presented to them. Roark at 6." Of course, it is understandable for a capital juror to retort, as noted by Professor Michel Mello: "If [the trial judge] wasn't going to follow our sentencing verdict, why did he ask us for our opinion in the first place?" M. Mello, The Jurisdiction to do Justice: Florida's Jung Override and The State Constitution, 18 U. Fla. St. L.Rev. 923, 927 (1991).
When considering the jury's recommendation, the Court is aware that attempting to explore the objective basis for the verdict may lead it into exploring the subjective basis for the verdict, and this would lead the Court down a slippery judicial slope. Therefore, the Court has consciously attempted to consider only the explanations based on the facts and inferences of fact which could have been reasonably determined by the jury. Before the analysis is undertaken, it is necessary to
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836 So.2d 915

(Cite as: 836 So.2d 915) why should the jury return a death verdict in this case. Of course, this is a subjective evaluation of the verdict. Third, based on Burdette's version of the events the jury could have determined that Barnes fired the fatal shot. Fourth, keeping their oath the jury concluded that the mitigating circumstances outweighed the aggravating circumstances. This kind of analysis fails in the end because the trial judge is always privy to more factual and legal information than the jury. For instance, the Court has the benefit of 1) a presentence investigation; 2) additional evidence from the final sentencing hearing (' 13A-5-47); and 3 ) legal information in the form of appellate decisions to guide its judgment. With respect to legal information, the Court notes that the jury is not told that there are reported cases that hold that three felony convictions can outweigh the 13A-5-51(l) mitigating factor, or that other courts in similar circumstances have found that a defendant's age of 18 at the time of the offense is not entitled to great weight, or that residual doubt is not a proper consideration in determining the verdict. [FN 10]
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essential function of the advisory verdict is to focus the court in its independent consideration of weighing the aggravating circumstances and weighing the mitigating circumstances, and weighing them against each other. A clinical judicial evaluation of all the circumstances as enumerated in V and VI(a) and (b) and weighing the aggravating circumstances and weighing them against the mitigating circumstances, and considering these matters with the 12-0 verdict in the forefront of the Court' s deliberations, the Court finds that the two aggravating circumstances outweigh the mitigating circumstances. The appropriate sentence in this case is death.
VII. CONCLUSION
Based on the foregoing findings, it is the judgment of the Court that Shonelle Andre Jackson be punished by death as provided by Ala.Code 15-18-80,- 81 and -82.
836 So.2d 915 FNIO. Indeed, all guilt-phase evidence is introduced at the sentencing phase of the trial and the jury is instructed to consider this evidence.
END OF DOCUMENT
The Court has reread its sentencing charge to the jury and it has noted its prejury selection explanation to the venire concerning the procedures in a capital case. The Court has also noted the closing arguments of the attorneys in the sentencing phase of the trial. The Court took pains to emphasize the importance of the sentencing verdict and, in fact, instructed the jury that the jurors were "to assume that what you decide will be the sentence imposed." The Court notes the State did not argue that the verdict was advisory. Therefore, I conclude that the jury was not led to believe that its verdict had lessened importance or did not count. In the final analysis the Court concludes that the result from the attempt to determine the reliability of the advisory verdict is so uncertain that it is not helpful; and it is unwilling to conclude that the jury departed from its instructions in rendering its verdict. Without some concrete direction from an appellate court, the final conclusion is that the
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836 So.2d 979
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Supreme Court of Alabama.
Ex parte Shonelle JACKSON. (In re Shonelle Jackson V. State of Alabama). 1981723.
fast-food restaurant cup had been found in vehicle codefendant had been driving with defendant's fingerprints on it did not render defendant's statement admitting he had been with other codefendants at time of murder involuntary, where officer lied to defendant to find out whether defendant had relationship with other codefendants, and defendant was not threatened or coerced into giving statement. 121 Criminal Law 1144.12 11 Ok 1144.12 Most Cited Cases In reviewing the correctness of the trial court's ruling on a motion to suppress, the Supreme Court makes all the reasonable inferences and credibility choices supportive of the decision of the trial court.
May 10, 2002.
After jury trial, defendant was convicted in the Montgomery Circuit Court, No. CC-97-2300, William R. Gordon and Tracy S. McCooey, JJ., of capital murder and first-degree theft of property. Defendant appealed. The Court of Criminal Appeals, 836 So.2d 915, affinmed . On grant of certiorari, the Supreme Court, 836 So.2d 973, remanded. On overruling of rehearing and on return from remand, the Supreme Court held that: (1) police officer's false statement to defendant did not render defendant's statement involuntary; (2) exclusion of evidence that murder victim was involved in drug activity was proper; and (3) trial court's overriding of jury's recommendation of life imprisonment and imposition of death penalty was proper. Affirmed. Johnstone, J., concurred in part, concurred in the result in part, and dissented in part as to the opinion and dissented from the denial of rehearing, with opinion. Lyons, J., concurred in part, dissented in part as to the rationale and dissented from the judgment and dissented from the denial of rehearing, with opinion.
131 Criminal Law X1158(4) 1 lOk1158(4) Most Cited Cases

The trial court's ruling on a motion to suppress will not be disturbed unless it is palpably contrary to the great weight of the evidence. [4J Criminal Law X412.1(1) I l Ok412.1(1) Most Cited Cases

Extrajudicial statements are prima facie involuntary and inadmissible; the duty rests on the trial court to determine whether the statement is voluntary, and unless it appears that it is voluntary it should not be admitted. [51 Criminal Law 414 110k414 Most Cited Cases The burden is on the state to show voluntariness and a Miranda predicate before an extrajudicial statement can be admitted into evidence. 161 Criminal Law 4=412.2(5) 110k412.2(5) Most Cited Cases Whether a Miranda waiver is voluntary, knowing,
West Headnotes
111 Criminal Law 4=412.1(4) 110k412.1(4) Most Cited Cases Police officer's false statement to defendant that
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836 So.2d 979 (Cite as: 836 So.2d 979)

and intelligent depends on the particular facts and underlying circumstances of each case, including the background, experience, and conduct of the accused. [71 Criminal Law 412(4) I10k412(4) Most Cited Cases
Page 2
A motion in limine is the proper method by which to prohibit the introduction of irrelevant evidence. [121 Criminal Law 632(4) 110k632(4) Most Cited Cases
(12] Criminal Law x'1153(1) 11Ok1153(1) Most Cited Cases The decision to grant or deny a motion in limine rests within the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion.
171 Criminal Law 695,5 I I Ok695.5 Most Cited Cases

The voluntariness of an inculpatory statement remains undetermined until the trial court has examined the totality of the circumstances surrounding the statement.
[131 Criminal Law C-338(1) I I0k338(l) Most Cited Cases

The test for relevancy is whether the evidence bears any logical relationship to the ultimate inference for which it is offered. 1141 Sentencing and Punishment X1784(3) 350Hk1784(3) Most Cited Cases Trial court's overriding of jury's recommendation of life imprisonment and imposition of death penalty was proper, where in determining sentence trial court considered all available evidence, heard arguments on aggravating circumstances , including fact that offense was committed while defendant was engaged in robbery or attempted robbery, and that defendant was under sentence of imprisonment when offense was committed, and mitigating circumstances , including fact that defendant was only 18 years old, and entered findings, there was no evidence in record indicating that bias, passion, or prejudice were factors in trial court's imposing death sentence , and trial court provided detailed analysis of its consideration of jury's recommendation of sentence of life imprisonment and reasons it rejected that recommendation and sentenced defendant to death . Code 1975, 13A-5-53. 1151 Sentencing and Punishment C-329 350Hk329 Most Cited Cases The decision whether a particular mitigating circumstance is proven and the weight to be given it rests with the judge and the jury. 116] Sentencing and Punishment C-1789(10) 350Hk 1789(10) Most Cited Cases
[81 Criminal Law X414 110k414 Most Cited Cases

The trial court's finding that a statement was voluntary need only be supported by a preponderance of the evidence. 191 Criminal Law X412.1(1) I 10k412.1(1) Most Cited Cases
191 Criminal Law C=520(1) I10k520(1) Most Cited Cases
1 1
191 Criminal Law X522(1) 110k522(1) Most Cited Cases

The test for the voluntariness of an extrajudicial confession or an inculpatory statement is whether, in light of all the surrounding circumstances, the statement was free from inducement, threat, or promise, either expressed or implied, that would have produced in the mind of the accused any fear of harm or hope of favor.
1101 Homicide 997 203k997 Most Cited Cases (Formerly 203k 163(2))
Exclusion of evidence that murder victim was involved in drug activity was proper, where neither defendant nor codefendants mentioned drug deal gone bad in statements to police, and passenger in automobile with victim at time of murder did not mention that murder was related to drug activity. 1111 Criminal Law 632(4) 110k632(4) Most Cited Cases
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notice any plain error or defect in theproceedings under review in those cases." "Court Comment to Amendment to Rule 39 , effective May 19, 2000, as to death-penalty cases, etc." Ala.R.App.P.
Reinstatement of a jury recommendation of life imprisonment without parole is appropriate in those circumstances where the trial court has overridden the jury's recommendation based on bias , passion, or prejudice, a defective weighing of aggravating or mitigating circumstances , or disproportionate severity of the sentence under all of the circumstances . Code 1975, 13A- 5-53(b). *981 Bryan A. Stevenson and Randall S. Susskind, of Equal Justice Initiative of Alabama, Montgomery, for petitioner. Bill Pryor, atty, gen., and Kathryn D. Anderson and Anne C. Adams, asst. attys. gen., for respondent.
*982 Appeals for that court to remand the case for the trial court to conduct a hearing outside the presence of the jury to determine the admissibility of Jackson's inculpatory statement . Er parse Jackson. 836 So.2d 973 (Ala.2001). We instructed the Court of Criminal Appeals to forward the trial court's return to this Court. It appears that the trial court has complied with our directions and has conducted a hearing to determine the admissibility of Jackson's statement. 1. [1][2][3] Jackson contends that the trial court erred in denying his motion to suppress a statement he made to a law-enforcement officer because, he says, the officer tricked him into making the statement. " 'In reviewing the correctness of the trial court's ruling on a motion to suppress, this Court makes all the reasonable inferences and credibility choices supportive of the decision of the trial court.' " Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradlev v. State, 494 So.2d 750, 760-61 (Ala.Crim.App.1985), affd, 494 So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). The trial court's ruling on a motion to suppress will not be disturbed unless it is palpably contrary to the great weight of the evidence. See Dixon v. State, 588 So.2d 903 (Ala.1991); Parker v. State, 587 So.2d 1072, 1088 (Ala_Crim.App.1991); Rutledge v. State. 680 So.2d 997, 1002 (Ala.Crim.App.1996); and Maples v. State, 758 So.2d I (Ala.Crim.App.1999), affd, 758 So.2d 81 (Ala.1999), cert. denied, 531 U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000). [4][5][6][7] Extrajudicial statements are prima facie involuntary and inadmissible ; the duty rests on the trial court to determine whether the statement is voluntary, and unless it appears that it is voluntary it should not be admitted. See Farrior v. State, 728 So.2d 691 (Ala.Crirn.App.1998). The burden is on the State to show voluntariness and a Miranda [FN2] predicate before such a statement can be admitted into evidence. See Lewis v. State, 535 So.2d 228 (Ala.Crim.App.1988). "Whether a waiver is voluntary, knowing, and intelligent
PER CURIAM.
The opinion of February 15, 2002, is withdrawn and the following is substituted therefor. Shonelle Jackson was convicted of murder made capital because the killing occurred during the commission of a robbery in the first degree, see 13A- 5-40(a)(2), Ala.Code 1975; he was sentenced to death on that conviction . He was also convicted of first-degree theft of property, see 13A-8-3, Ala.Code 1975, and on that conviction he was sentenced to life imprisonment as an habitual offender with three prior felony convictions, see 13A-5- 9(c)(2), Ala.Code 1975. The Court of Criminal Appeals affirmed both convictions and sentences . See Jackson v. State, 836 So.2d 915 (Ala.Crim.App.1999). This Court granted certiorari review, see Rule 39 (c), Ala.R.App.P., as it read before it was amended effective May 19, 2000, [FN I ] and remanded the case to the Court of Criminal
FNI. Rule 39, Ala.R.App.P., was amended effective May 19, 2000, as to death-penalty cases..
The amendment removes the provision in the former Rule 39(c) that provided that a petition for a writ of certiorari to the Supreme Court in a case in which the death penalty was imposed would be granted as a matter of right. With this amendment, review of death-penalty cases will be at the discretion of the Supreme Court. The Supreme Court retains the authority to
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depends on the particular facts and underlying circumstances of each case, including the background, experience, and conduct of the accused--i.e., the totality of the circumstances." Click v. State, 695 So.2d 209, 218 (Ala.Crim.App.1996). The voluntariness of an inculpatory statement remains undetermined until the trial court has examined the totality of the circumstances surrounding the statement. See Er parse Hill. 557 So.2d 838, 841 (Ala.1989).
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FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[8][9] The trial court's finding that a statement was voluntary need only be supported by a preponderance of the evidence. Dixon v. State, supra. The test for the voluntariness of an extrajudicial confession or an inculpatory statement is whether, in. light of all the surrounding circumstances , the statement was free from inducement, threat, or promise, either expressed or *983 implied, that would have produced in the mind of the accused any fear of harm or hope of favor. Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999). Moreover, "more subtle forms of psychological manipulation, such as trickery or deception by the police, have not been considered sufficiently coercive, standing alone , to render a confession or incriminating statement involuntary." Ex parte Hill. 557 Sold at 841. The trial court submitted the following order on return to remand: "On August 31, 2001, the Alabama Court of Criminal Appeals remanded this case to the trial court to conduct proceedings consistent with the Opinion as written and released by the Alabama Supreme Court on May 18, 2001. The Alabama Supreme Court [had] remanded this case to the Alabama Court of Criminal Appeals with the instructions to order the trial court to conduct a hearing to determine the admissibility of Defendant Jackson' s extrajudicial statement. The trial court appointed the Honorable Bryan A. Stevenson to represent the defendant at the hearing, which was conducted on October 24, 2001. At the hearing, the defendant was
represented by Mr. Stevenson, as well as the Honorable Randall Susskind, both of the Equal Justice Initiative of Alabama. The State of Alabama was represented by the Honorable Susan Redmond, Chief Deputy District Attorney for Montgomery County. After hearing the testimony and accepting exhibits introduced into evidence, this Court advised the parties that they would have 7 days in which to present any Memorandum of Law supporting their respective positions. Defense counsel submitted a Memorandum of Law on November 2, 2001, and this Court has reviewed the same. "The State of Alabama called its first and only witness, Detective A.J. Signore, of the Montgomery Police Department. Detective Signore testified that he had been employed with the Montgomery Police Department for 10 years, and in 1997, had been a homicide investigator. Pursuant to this case, Detective Signore testified that the defendant's mother signed a 'consent to search' her home wherein detectives confiscated certain items, including .380-caliber bullets. The detectives, before leaving the defendant's mother's home, told the mother that if the defendant came home she was to notify [them] that the police would like to talk to him. Later that afternoon, the defendant went to police headquarters to talk to the detectives. At the hearing , Detective Signore testified that the defendant, who was 18 years old at the time, reported to the police headquarters where Detective Signore and his partner, Detective C.D. Phillips, were on duty. Detective Signore testified that the defendant was read his Miranda rights, after which he signed the waiver form indicating that he understood his rights, that he had not been promised anything or threatened in any way and that he wished to give a statement to the police. The defendant' s statement was taken in Detective Signore's office at the Montgomery Police Department with Detective Phillips also present.* "Initially, the defendant denied even knowing the three other codefendants that were involved in the shooting. Detective Signore testified at the hearing that he had statements from the 3 codefendants stating that all 3 of them knew the defendant and that the defendant had been involved in the shooting. Detective *984 Signore stated that in order to get the defendant to tell the truth about his relationship with the other 3 codefendants, he told the defendant that a Dairy
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836 So.2d 979 (Cite as : 836 So .2d 979)

Queen [fast-food restaurant] cup had been found in the vehicle with the defendant's fingerprints on it. After Detective Signore told the defendant this information, the defendant then told Detective Signore that, in fact, he did know the other codefendants, but denied any involvement in the shooting. After telling Detective Signore that he knew the other codefendants, he asked the detective if he could make another statement. In his second statement, Defendant Jackson admitted to having been with the other codefendants at the time of the murder and to possessing a.380 automatic pistol. "The defense called Ms. Rosalyn Jordan as its first witness. Ms. Jordan is a, sixth-grade teacher at Patterson Elementary School. She testified that the defendant had been a student in her classroom and her records indicated that he had failed the first and third grades. She stated that the defendant was a low-achiever and that he was 13 years old in the sixth-grade. She also stated that she had only seen the defendant a few times since he had been a sixth- grader in her class. The defense also called Ms . Thelma Owens, who is an employee at the Southern Poverty Law Center. She is related to the defendant, as his aunt, and she stated that she helped to raise him. She went on to state that the defendant was very respectful of her and any type of authority figures. "There was absolutely no question that Detective Signore lied to the defendant about the fingerprints on the Dairy Queen cup. It is important to recognize, however, that the lie was told by Detective Signore only in order to find out if the defendant did, in fact, have a relationship with the other codefendants. The lie was not told to induce the defendant to confess [to] a crime . Alabama Courts have repeatedly held that a confession is not inadmissible merely because it was induced by a trick or misrepresentation. As defense counsel pointed out in its Memorandum of Law, although police deception is not conclusive as to the voluntariness of a statement, it is certainly a factor to be considered in the determination of its voluntariness. See Frazier v. Cupp, 394 U.S. 731f, 89 S.Ct. 1420, 22 L.Ed.2d 684] (1969). This Court would again note, however, that the deception used in this case was not deception that led to a confession to the actual crime. The deception or misrepresentation used by Detective Signore was only used in order to establish whether or not a relationship existed between the
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defendant and codefendants. After the statement was made concerning 'the fingerprints on the Dairy Queen cup, Defendant Jackson admitted only to knowing the codefendants, but denied any involvement in the actual crime. "This Court must look at the totality of the circumstances in analyzing whether or not the defendant's extrajudicial statement was voluntary or not. The Court is convinced, after conducting the hearing, that the defendant did, in fact, voluntarily come to the police station and, after being read his Miranda rights and signing his waiver, he agreed to talk to the detectives. There was no testimony and/or evidence presented that would indicate that the defendant could not knowingly and voluntarily waive his rights and agree to talk with the detectives. There was also nothing unusual or extraordinary about the room in which the statement was taken, or the manner in which the statement was obtained. As Justice Stuart so ably stated *985 in her dissent [to the Supreme Court's opinion of May 18, 20011, there is no question that Detective Signore made misrepresentations concerning the fingerprints found on the Dairy Queen cup; however, whether or not the misrepresentations render a statement involuntary is a question of law and does not require the gathering of additional facts in order to make a decision. This trial court, however, has conducted the hearing as ordered by the majority and would point out that no new information or facts were gleaned from this hearing and this court finds that, after examining the totality of the circumstances surrounding the statement of the defendant, said statement was made voluntarily and is therefore admissible.
FN" * Detective Signore's office in which the defendant's statement was taken is a normal detective office containing a desk and two chairs positioned facing the desk. Defense counsel went into very elaborate details about the office in its Memorandum of Law trying to show that the room would imply that the statement was not voluntary. The Court - found nothing unusual, deceptive, or coercive about the room in which defendant' s statement was taken at Montgomery Police Department Headquarters."
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The trial court's findings are adequately supported by the record. We have carefully reviewed the record on return to remand to determine whether Jackson voluntarily and knowingly waived his Miranda rights before making the inculpatory statement to the police and whether the statement was voluntary. After considering the totality of the circumstances surrounding Jackson' s statement, we conclude that the State met its burden in proving that Jackson voluntarily and knowingly waived his Miranda rights and that he made his statement voluntarily. The record does not reveal that Jackson was threatened or coerced into giving a statement . The weight and preponderance of the evidence support the trial court's decision to deny the motion to suppress. Therefore, the trial court did not err in denying the motion to suppress Jackson's statement.
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814 (Ala.Crim.App.1986)T rev'd on other grounds, 516 So.2d 816 (Ala.1987). The decision to grant or deny such a motion rests within the sound discretion of the trial court and that decision *986 will not be overturned on appeal absent an abuse of discretion. Id The test for relevancy is whether the evidence "bears any logical relationship to the ultimate inference for which it is offered." Aetna Life Ins. Co. v. Lavoie, 470 So.2d 1060, 1078 (Ala.1984); see also C. Gamble, McElroy's Alabama Evidence 21.01(1) (5th ed.1996); Garner v. State, 606 So.2d 177 (Ala.Crim.App.1992). The State filed a pretrial motion in limine requesting that Jackson be prevented from presenting evidence that the victim was involved in drug activity, because, it argued, such evidence was immaterial and irrelevant to the case. In response, Jackson argued that the victim's drug activity went to the reason for the confrontation between Jackson, his codefendants, and the victim and that evidence of that activity was, therefore, relevant. After holding a hearing on the motion, the trial court granted the State's motion. On the day of trial, Jackson's counsel asked the court to reconsider its ruling because Jackson might decide to testify. The trial court indicated that it would reconsider its ruling if Jackson decided to testify. [FN3) Jackson did not testify, and his counsel did not raise the issue again and did not later ask the court to reconsider its ruling. Because the trial court stated that it would reconsider its ruling, the ruling on the motion in limine was not a final order and the issue was not preserved : for appeal. See Perry v. Brakefteld, 534 So.2d 602 (Ala.1988); Evans' V. Fruehauf Corp., 647 So.2d 718 (Ala.1994). Therefore, we review this issue under the plain-error rule. Rule 45A, Ala.R.App.P.
II.
In his brief to this Court, Jackson raises several additional issues , which include subissues, for review, all of which were argued in the Court of Criminal Appeals and were thoroughly addressed by that court . We have carefully reviewed all the issues raised by Jackson and we will address the following two issues, which were specifically addressed by Jackson' s counsel at oral argument before this Court: 1. Whether the trial court erred in granting the State's motion in limine , preventing him, Jackson argues, from presenting motive evidence; and 2. Whether the trial court erred in overriding the unanimous jury recommendation of life imprisonment without the possibility of parole and sentencing Jackson to death. A. [10] Jackson contends that the trial court erred in granting the State's motion in limine because, he says, its doing so improperly prevented him from presenting evidence that the motive for the murder was retaliation for a drug deal that had gone "bad," not robbery as the State alleged. He argues that by granting the State's motion, the trial court prevented. him from testifying, from cross- examining witnesses, and from presenting mitigation evidence. [11][12][13] A motion in limine is the proper method by which to prohibit the introduction of irrelevant evidence. Wiley v. State, 516 So.2d 812,
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FN3. The following colloquy occurred: "[Defense counsel]: Judge, we would ask the Court to reconsider the ruling on the motion in limine and at least withhold ruling until maybe the sentencing phase. Our client--we have not made a decision as to whether we are going to allow our client to testify or not. His testimony, if he does testify, will be diametrically opposed to the facts--underlying facts as the district attorney had presented them, which creates a conflict and a jury question. His testimony deals with a drug deal. I don't
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want to be put in a situation where we can't ask our client questions about what really happened in this case. We would be limited, to have his testimony limited. THE COURT: Well, you know, that's the first I have heard of that, for the record. It's not a criticism . It's just for the record. You know, I will--you know, if and when you decide whether or not your client is going to testify, I will let you ask me to reconsider it at that point." jury's sentencing recommendation.
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Nothing in the record supports Jackson' s contention that the offense was the result of a drug deal gone "bad." The record indicates that the victim's wife informed the police that her husband was a small-time dealer of crack cocaine. However, neither Jackson nor the codefendants mentioned a drug deal gone "bad " in their statements to law-enforcement officers after the offense. At the hearing, defense counsel stated that he wanted to cross-examine certain witnesses about the victim's being a drug dealer to determine if those witnesses would testify that the victim had been killed as the result of a "bad" drug deal. Defense counsel merely speculated that there was a potential for such testimony; nothing in his proffer indicates that evidence existed to support this theory. While the statement of Gerard Burdette , a passenger in the automobile with the victim at the time of the murder, did refer to "gang" activity, the statement did not indicate that the murder was related to drug activity. Nothing in the record, other than defense counsel's speculation, supports Jackson's theory that the killing was the result of a drug deal gone "bad." Speculation and conjecture do not establish relevant evidence of the existence of a viable defense. Therefore, we hold that the trial court' s grant of the State's motion *987 in limine did not constitute error, plain or otherwise. B. [14] Jackson contends that the trial court erred in overriding the jury recommendation of life imprisonment without the possibility of parole, which was unanimous , and sentencing him to death.
Section 13A-5-47(b), Ala.Code 1975 , requires that the trial court order and receive a written presentence-investigation report before it determines the sentence in a capital case . Section 13A-5-47(b) further provides that the presentence- investigation report and any evidence submitted in connection with it shall be made part of the record in the case. "Rule 26.3(b), Ala. R.Crim. P., provides for what can be contained in such a presentence report. When a defendant has a significant juvenile record, his or her teenage difficulties will appear as part of the presentence report. However, under the Alabama capital-sentencing scheme, juvenile adjudications are not convictions and cannot be considered as prior criminal activity. Freeman v. State, 555 So.2d 196, 212 (Ala.Crim.App. 1988), affil, 555 So.2d 215 (Ala.1989), cert. denied, 496 U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d 284 ( 1990). Only convictions can negate the statutory mitigating circumstance of no significant history of prior criminal activity. 13A-5- 51(1), Ala.Code 1975; Freeman v. State, 651 So.2d 576, 597-98 (Ala.Crim.App.1994)."
Ex parte Burgess, 811 So.2d 617, 623 (Ala.2000).

The record, specifically the sentencing order, reveals that the trial court found one statutory mitigating circumstance--that Jackson was. 18 years old at the time of the crime. 13A-5-51(7), Ala.Code 1975. However, Jackson alleges . that the.,, trial court used his juvenile record. to negate the statutory mitigating circumstance that he had no significant history of prior criminal activity. 13A-5-51( 1). In fact, the trial court specifically. stated that Jackson 's juvenile record could not be considered in determining whether that statutory mitigating circumstance existed . However, the court noted that Jackson had a significant prior criminal history : he had three felony convictions. Error, if any, by the trial court in considering Jackson's juvenile record was harmless . Er parte Davis. 718 So .2d 1166, 1178 (Ala.1998). Therefore, the trial court properly assessed the weight it was to assign that mitigating circumstance in light of Jackson ' s prior felony convictions.
2.
First, Jackson contends that the trial court erred in considering his juvenile record in overriding the
Jackson contends that the trial court improperly considered his physical characteristics in
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836 Sold 979 (Cite as: 836 So.2d 979)
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considering the statutory mitigating circumstance of his age at the time of the offense. See 13A-5-51(7), Ala.Code 1975. Specifically, he argues that the trial court's reference to his height and weight at the time of the crime was arbitrary and that it deprived him of a reliable sentencing determination.
The trial court did not err in its assessment of the weight to assign the mitigating circumstance of Jackson's age at the time of the offense. 3.
Jackson further contends that the trial court improperly plagiarized the sentencing order from Shellito v. State, 701 So.2d 837, 843-44 (F1a.1997), cert. denied, 523 U.S. 1084, 118 S.Ct. 1537, 140 L.Ed.2d 686 (1998). in its analysis of the mitigating circumstance of Jackson' s age. Specifically, Jackson argues that the trial court used the sentencing order from Shellito as a "till-in-the-blank" form, thereby depriving him of an individualized sentencing determination. The record shows that in the sentencing order, the trial court stated that Jackson's case was similar to Shellito_ Upon review of Shellito and of the trial court's sentencing order, we conclude that the trial court adopted only the analysis used in She//ito. In this case, the trial court's assessment contains a thorough analysis of the facts and the circumstances involved in this case, thereby providing an individualized sentencing determination. We find no error. 4. Jackson contends that the trial court failed to make. an adequate determination of his culpability by failing to determine whether he was the actual shooter in the murder. In its sentencing order, the trial court stated "there is evidence that [Jackson] was the shooter [and] there is evidence that suggests that [one of Jackson's codefendants], not [Jackson] fired the shot that killed [the victim]." The record supports the court's determination of Jackson's culpability. Therefore, Jackson's argument that the trial court failed to determine his culpability is without merit.
In Ex parte Clisbv, 456 So.2d 105, 108-09 (Ala.1984), cert. denied, 470 U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 391 (1985), this Court stated:
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"[T]he sentencing authority in Alabama, the trial judge, has unlimited discretion to consider any perceived mitigating circumstances , and he can assign appropriate weight to particular mitigating circumstances. The United States Constitution does not require that specific *988 weights be assigned to different aggravating and mitigating circumstances. Murrv v. State, 455 So.2d 53 (Ala.Crim.App.198[3] ), rev'd on other grounds, 455 So.2d 72 (Ala.1984). Therefore, the trial judge is free to consider each case individually and determine whether a particular aggravating circumstance outweighs the mitigating circumstances or vice versa. Moore v. Balkcom, 716 F.2d 1511 (11th Cir. 1983). The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation." [15] The record reflects that in weighing the mitigating circumstance of Jackson 's age at the time of the offense, the trial court noted Jackson's height, his weight, and his age at the time of the offense, as well as the fact that Jackson was the father of a 3-month-old child, that be had smoked marijuana since he was 14 years old, that he consumed alcohol on a regular basis, and that he had an extensive criminal record. The court also noted that Jackson was "a physically mature adult" at the time of the offense. A trial judge can consider past behavior and prior criminal activity in evaluating a defendant's maturity and in determining the weight to be given the mitigating circumstance of the defendant's age. Cf. Ex parte Burgess, supra. The decision whether a particular mitigating circumstance is proven and the weight to be given it rests with the judge and the jury. See Carroll v. State, 599 So.2d 1253 (Ala.Crim.App.1992), affd, 627 So.2d 874 (Ala.1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994).
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5.
Finally, Jackson contends that the trial court's override of the jury's unanimous recommendation of life imprisonment without *989 parole was improper, arbitrary, and unconstitutional, and that it wrongfully negated the role of the jury. He argues that - 13A-5-47(e), Ala.Code 1975 [FN4]-Alabama's judicial override statute--is standardless,
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unlike override statutes in other states, and that it fails to give lower courts guidance in rejecting a jury's recommendation.
Page 9
FN4. Section 13A-5-47(e), Ala.Code 1975 , provides:

"In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict had been waived pursuant to Section 13A-5-46(a) or 13A-5-46(g). While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court."
provides an explicit statutory directive that the jury's recommendation as to the sentence is " not binding upon the court." Adopting a rule like the one set forth in Tedder would impermissibly rewrite the statute, in violation of our constitutional duty to observe the separation between the powers conferred upon the judiciary and those conferred upon the Legislature. 43 Constitution of Alabama of 1901.
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We now turn to an analysis of the propriety of the override of the jury 's recommendation of life imprisonment without parole in Jackson 's case. [16] Section 13A -5-53, Ala.Code 1975 , provides, in pertinent part: "(b) In determining whether death was the proper sentence in the case the Alabama Court of Criminal Appeals, subject to review by the Alabama Supreme Court, shall determine: "(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; "(2) Whether an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence; and "(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. "(c) The Court of Criminal Appeals shall explicitly address each of the three questions specified in subsection (b) of this section in every case it reviews in *990 which a sentence of death has been imposed. "(d) After performing the review specified in this section , the Alabama Court of Criminal Appeals, subject to review by the Alabama Supreme Court, shall be authorized to:. "(1) Affirm the sentence of death; "(3) In cases in which the death penalty is deemed inappropriate under subdivision (b)(2) or (b)(3) of this section, set the sentence of death aside and remand to the trial court with directions that the defendant be sentenced to life imprisonment without parole." Thus , reinstatement of a jury recommendation of life imprisomnent without parole is appropriate in those circumstances where the trial court has
(Emphasis added.)
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This Court in Ex parte Apicella, 809 So.2d 865 (Ala200I ), upheld the constitutionality of having a judge, not the jury, determine the punishment in a capital case . In Ea- parte Turlor, 808 So.2d 1215 (Ala.2001), this Court held that the capital-sentencing procedure set forth in 13A-5-47 and 13A-5-53, Ala.Code 1975, provided sufficient guidance to prevent the arbitrary and capricious imposition of a death sentence. [FN5] Specifically, the Court noted that the capital-sentencing procedure "ensures that the trial judge is given adequate information and sufficient guidance in deciding whether to accept or to reject a jury's recommended sentence" and that 13A-5-53, Ala.Code 1975, provided sufficient guidelines for an appellate determination of "whether a trial judge's override of the jury's recommendation is appropriate in a particular case ." 808 So.2d at 1219.
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FN5. We cannot accept Jackson's invitation to engraft the rule propounded in Tedder v. State, 322 So.2d 908, 910 (Fla.1975 )(stating that for a trial court to impose a death sentence over a jury's recommendation of life imprisonment without parole, " the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ"). Section 13A-5-47(e)
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836 So.2d 979 (Cite as : 836 So.2d 979)
Page 10 the death sentence.

We have independently weighed the aggravating and mitigating circumstances to determine if death is the appropriate sentence; we conclude, as did the Court of Criminal Appeals, that the aggravating circumstances in this case outweighed the mitigating circumstance. Furthermore, we agree with the Court of Criminal Appeals that in this case the punishment of death is not excessive or disproportionate to the penalty imposed in similar cases. *991 Therefore, we hold that the imposition of the death sentence in this case was proper. The judgment of the Court of Criminal Appeals is affirmed.
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overridden the jury's recommendation based on bias, passion, or prejudice; where the weighing of aggravating or mitigating circumstances is defective; or where the sentence is disproportionately severe under all of the circumstances . See 13A-5-53(b), Ala.Code 1975. In this case, before determining the sentence, the trial court considered all the available evidence; heard arguments on aggravating circumstances and mitigating circumstances; entered written findings of fact summarizing the offense and Jackson's participation in it; made specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in 13A-5-49, each mitigating circumstance enumerated in 13A- 5-51, and any additional mitigating circumstance offered pursuant to 13A-5- 52; weighed the advisory verdict of the jury; considered and weighed the presentence-investigation report; considered and independently weighed the mitigating circumstances and the aggravating circumstances; and stated specific reasons for giving the jury's recommendation the consideration it gave the recommendation, see Er parte Taylor. After following this procedure, the trial court concluded that the aggravating circumstances outweighed the mitigating circumstance and imposed the death penalty, overriding the jury's recommendation. We commend the trial court for its thorough sentencing order and especially for its explanation for its override of the jury. recommendation. The trial court found two statutory aggravating circumstances: (1) that the capital offense was committed while Jackson was engaged in a robbery or an attempted robbery, and (2) that the capital offense was committed by a person under sentence of imprisonment. The trial court found one statutory mitigating circumstance: that Jackson was 18 years old at the time of the offense. It is evident from the trial court's sentencing order that it independently weighed the aggravating circumstances and the mitigating circumstance. Additionally, the trial court provided a detailed analysis of its consideration of the jury's recommendation of a sentence of life imprisonment without the possibility of parole and the reasons it rejected that recommendation and sentenced Jackson to death. There is no evidence in the record before us indicating that bias, passion, or prejudice were factors in the trial court's imposing
OPINION OF FEBRUARY 15, 2002, WITHDRAWN ; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED ; AFFIRMED.
MOORE, C.J., and HOUSTON, SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.
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JOHNSTONE, J., concurs in part, concurs in the result in part, and dissents in part as to the opinion and dissents from the denial of rehearing.
LYONS, J., concurs in part and dissents in part as to the rationale and dissents from the judgment and dissents from the denial of rehearing.
JOHNSTONE, Justice (concurring in part, concurring in the result in part, and dissenting in part as to the opinion and dissenting from the denial of rehearing).
With one exception, I concur in the rationale of the main opinion on the issue of guilt or innocence. The exception is that I do not agree with the trial judge's rationale, recited in the main opinion, for the conclusion that Detective Signore's lie did not render the defendant's statement involuntary and therefore inadmissible. That the statement was not a full confession but was, rather, only an admission
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Page I I I also dissent from the denial of rehearing in this case.

LYONS, Justice ( concurring in part and dissenting in -part as to the rationale and dissenting from the judgment and dissenting from the denial of rehearing). I concur in the main opinion's rejection of Jackson's contentions concerning the denial of his motion to suppress, the denial of his motion in limine, the trial court's consideration of his juvenile record and his physical characteristics, and the alleged plagiarism of a sentencing order from another case. However, because I would reinstate the jury's unanimous recommendation of life imprisonment without parole, I must dissent from the portion of the main opinion that holds otherwise. I also dissent from the denial of rehearing. The Judicial Article, Amendment No. 328, Alabama Constitution of 1901, confers upon our appellate courts the responsibility for review of all cases , including those in which a sentence of death has been imposed. The Legislature has been more specific. The Court of Criminal Appeals, subject to review by this Court, is authorized by 13A-5-53, Ala.Code 1975, to review the propriety of a death sentence and, where appropriate, to "set the sentence of death aside and remand to the trial court with directions that the defendant be sentenced to life imprisonment without parole." 13A-5-53(d)(3). Justice Maddox has previously acknowledged that our appellate courts "are especially sensitive to their roles when there is a jury override." Er parse Tarver, 553 So.2d 633, 635 (Ala.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 966 (1990) (Maddox, J., concurring specially). Jackson contends that he is denied due process by the mechanism of the judicial override. His contention should fail in view of the authority of the appellate courts of this State to consider independently the jury recommendation against death and to determine whether death is the appropriate penalty in a given case. It is our duty, upon proper application for certiorari review, to reinstate a jury recommendation against the death penalty where the trial court's override. is grounded in "passion , prejudice, or any other arbitrary
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of inculpatory relationships is immaterial to the issue whether the statement was voluntary. I agree, however, with the conclusion that the lie in this case did not constitute such a threat or such coercion as would render the statement involuntary and inadmissible. A caveat is appropriate on an aspect of the opinion of the Court of Criminal Appeals in this case, Jackson V. State, 836 So.2d 915 (Ala.Crim.App.1999). In Part V of that opinion, the Court of Criminal Appeals appears to hold that the facts of this case would not support a jury instruction on the lesser- included offense of robbery. Had the defendant requested such a jury instruction, it would have been due him. The evidence supporting this theory, however, is not so strong that the trial court committed plain error in omitting such an instruction in the. absence of a request for one by the defendant. I respectfully dissent from affirming the Court of Criminal Appeals in its affirmance of the judgment imposing the death penalty pursuant to the trial judge' s override of the unanimous recommendation of life imprisonment without the possibility of parole returned by the jury. I agree with Justice Lyons' s special writing that the unanimous recommendation of the jury for life imprisonment should be deemed a mitigating circumstance. I further agree with Justice Lyons that the two aggravating circumstances found in this case do not outweigh the combined mitigating circumstances of the life recommendation, the uncertainties in the evidence that the defendant was the triggerman, and the young age of the defendant. In assigning no weight nor binding effect to a life-imprisonment recommendation by a jury, Alabama law reduces to a sham the role of the jury in sentencing and allows baseless , disparate sentencing of defendants in capital cases. The first of these consequences of Alabama law is a denial of due process of law, and the second is both a denial of due process and a denial of equal protection. Accordingly, while I agree with the adjudication of the defendant's guilt, I dissent from affinning the affirmance of the death sentence. I would reverse the judgment of the Court of Criminal Appeals affirming the death sentence and would remand the cause for the defendant to be *992 resentenced to life imprisonment without the possibility of parole.
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factor"; or where there has been a defective weighing of the aggravating circumstances and the mitigating circumstances ; or where the penalty is disproportionately severe under all of the circumstances. 13A- 5-53(b). The trial court is to be commended for its explanation of the reasons for its override of the jury's advisory verdict . A trial court is required by statute to enter "specific written findings" concerning the existence or nonexistence of the aggravating circumstances and the mitigating circumstances . 13A-5-47(d). To facilitate the appellate courts of this State in the discharge of their statutory duty to review - the propriety of a sentence of death, we should require the trial court to enter specific written findings concerning the propriety of the decision to impose the death penalty over a jury's recommendation of a sentence of life imprisonment without parole . In making such a determination , the trial court should be mindful of the aforementioned criteria applicable to a determination at the appellate level as to the propriety of the sentence of death ; namely , whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether an independent weighing of the aggravating circumstances and the mitigating circumstances at the appellate level would indicate that death was the proper sentence ; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, . considering *993 both the crime and the defendant. See 13A-5-53(b). The trial court here aptly observed that it did not have any guidance from this Court as to how it should treat the jury's recommendation in the process of weighing the aggravating circumstances and the mitigating circumstances . I believe this Court should offer additional guidance to the trial court as to the effect of a jury' s recommendation of a sentence of life imprisonment without parole. The Legislature has provided specific aggravating circumstances at 13A-5-49, preceded by the phrase, "Aggravating circumstances shall be the following ." Such introductory language does not leave room for augmentation of the list through judicial decision -making . In contrast, the legislative catalog of mitigating circumstances is preceded by the phrase , "Mitigating circumstances shall include, but not be limited to. the following." 13A-5-51 (emphasis added ). So as to guide the trial court in
Page 12
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determining the effect of,a jury's recommendation of life imprisonment without parole, this Court should hold that such a recommendation is to be treated as a mitigating circumstance. The weight to be given that mitigating circumstance should depend upon the strength of the factual basis for the recommendation based upon information known to the jury--such as conflicting evidence concerning the identity of the "triggerman" or a recommendation made by the victim's family for leniency--subject to the jury's recommendation being undermined based upon information known only to the trial court and not to the jury. Pursuant to 13A-5-53(b), Ala.Code 1975, we must weigh the aggravating circumstances and the mitigating circumstances in this case to determine if death is the appropriate sentence. Burdette, a passenger in the victim's vehicle, stated that he saw a long black ".38 or maybe .357" when Jackson and his codefendants began shooting at the victim and Burdette. Both Burdette and the medical examiner expressed the opinion that the person with the .38 pistol or the .357 handgun tired the bullet that killed the victim. That person would have been Barnes, since Barnes and Rudolph both stated that Barnes was the person who was armed with a .357 handgun at the time of the shooting. Based on this evidence, the jury could have believed that Barnes, not Jackson, fired the fatal shot, giving the jury a basis for its recommendation of a sentence of life imprisonment without parole. The trial court found two statutory aggravating circumstances: (1) that the capital offense was committed while Jackson was engaged in a robbery or an attempted robbery, and (2) that the capital offense was committed by a person under a sentence of imprisonment. The trial court found one statutory mitigating circumstance: that Jackson was 18 years old at the time of the crime. It is evident by the trial court's sentencing order that it weighed the aggravating circumstances and the mitigating circumstance. However, in a close case like this one, where the evidence suggests a possibility that Jackson might not have fired the fatal shot, treating the jury's recommendation of life imprisonment without parole as a mitigating circumstance changes the overall balance of the weighing process. Independently weighing the aggravating circumstances and the mitigating circumstances and
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treating the jury's recommendation as a mitigating Circumstance , I would conclude that the trial court's override of the jury's recommended sentence and its consequent imposition of the sentence of death were improper under the circumstances of this case. See Ala.Code 1975, 13A-5-53(a) and (b). Given Jackson' s age at the time of the offense and the fact that the evidence pointed to a codefendant *994- as the "triggerman," the jury's unanimous recommendation of a sentence of life imprisonment without parole tips the scales - in favor of following the jury's recommendation and in sentencing Jackson to life imprisonment without parole. In this way, we can abide by the . Legislature's command that a jury recommendation is not binding (y 13A-5-47(e)); at the same time, I do not understand the Legislature to have commanded that the jury recommendation be given no weight whatsoever. We therefore can give the jury's recommendation some weight in the sentencing process as a mitigating circumstance . I do not suggest that a trial court can never override a jury's recommendation of a life-imprisonment sentence, but in order to do so , the aggravating circumstances must be sufficiently egregious to support a sentence of death in light of all mitigating circumstances, including a jury's recommendation of life imprisonment without parole . T'herefore, I respectfully dissent from the judgment.
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836 So.2d 979 END OF DOCUMENT
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IN THE ALABAMA COURT OF CRIMINAL APPEALS NO.

EX PARTE STATE OF ALABAMA. IN RE:
SHONELLE ANDRE JACKSON, PETITIONER, vs.

STATE OF ALABAMA, RESPONDENT.
EXHIBITS
FOR THE PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE TRACY S . MCCOOEY , CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT Volume II of II
And
James 'R. Bouts ASSITANT ATTORNEY GENERAL Jeremy McIntire ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL CAPITAL LITIGATION DIVISION ALABAMA STATE HOUSE 11 SOUTH UNION STREET MONTGOMERY, ALABAMA 36130
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IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA, SHONELLE ANDRE JACKSON, ) Petitioner, v. ) Case No: CC-97 -2300.50
STATE OF ALABAMA,
Respondent.
STATE ' S MOTION FOR SUMMARY DISMISSAL OF THE CLAIMS IN JACKSON ' S AMENDED RULE 32 PETITION THAT ARE PROCEDURALLY BARRED FROM REVIEW PURSUANT TO RULE 32.2(a ) OF THE ALABAMA RULES OF CRIMINAL PROCEDURE.
Comes now the State of Alabama, the Respondent in the above-styled cause, and moves this Honorable Court to
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dismiss those claims in Jackson's amended Rule 32 petition that are procedurally barred. In support of this motion, the State of Alabama submits the following: 1. Rule 32.2(a) of the Alabama Rules of Criminal Procedure provides, in relevant part, as follows:
A petitioner will not be given relief under this Rule based upon any ground:
(2) which was raised or addressed at trial; or (3) which could have been but was not raised at trial . . .; or (4) which was raised or addressed on appeal or
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(5) which could have been but was not raised on appeal . . . . 2. "Alabama has never recognized any exceptions to the procedural default grounds contained in Rule 32, Ala.R.Crim.P. [Moreover, the appellate courts] have
repeatedly stated that the procedural bars in Rule 32 apply equally to all cases, including those in which the death penalty has been imposed." Hooks v. State, CR-99-2212, 2000 WL 1496807, at *4 (Ala. Crim. App. Oct 6, 2000); see also, e.g., State v. Burton, 629 So. 2d 14, 20 (Ala. Crim. App. 1993), cert. denied, 114 S. Ct. 1664 (1994). The procedural bars apply to Jackson's Rule 32 petition. 3. Listed below are the claims raised in the Rule 32
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petition which are procedurally barred, and the specific citation to Rule 32.2(a), which bars consideration of each claim.
The Claim That Jackson Was Denied The Effective Assistance Of Counsel In Part Because Of The Insufficient Funds Provided For Court-Appointed Attorneys In Capital Cases. Ala. R . Crim. P. 32.2(a)(3) and (5 ). ( Paragraphs 12-16)1 Ground II : THE CLAIM THAT JUROR MISCONDUCT DURING THE TRIAL DEPRIVED JACKSON OF HIS RIGHTS TO A FAIR TRIAL , DUE PROCESS , AND A RELIABLE SENTENCE
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'This claim is unnumbered in Jackson's amended rule 32 petition.
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DETERMINATION. Ala. R. Crim. P. 32.2(a)(3) and (5). (paragraphs 151-163)
Ground III: THE CLAIM THAT THE STATE WITHHELD FAVORABLE EVIDENCE FOR THE DEFENSE THUS VIOLATING JACKSON ' S FEDERAL AND STATE RIGHTS . Ala. R. Crim. P. 32.2(a)(3) and (5). (paragraphs 164168) Ground V: THE CLAIM THAT THE DEATH SENTENCE IN THIS CASE IS DISPROPORTIONATE IN VIOLATION OF JACKSON'S STATE AND FEDERAL RIGHTS. Ala. R. Crim. P. 32.2.(a) (3) and (4). (paragraphs 175-177) THE CLAIM THAT THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF ROBBERY. Ala. R. Cram. P. 32.2(a)(3) and (4). (paragraphs 178-181) Ground VII: THE CLAIM THAT THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING JACKSON A CONTINUANCE TO SECURE A CRITICAL WITNESS. Ala. R. Crim. P. 32.2(a)(2) and (4). (paragraphs 182-185) Ground VIII: THE CLAIM THAT THE TRIAL COURT IMPROPERLY LEFT THE COURTROOM WHILE THE JURY WATCHED JACKSON'S VIDEOTAPED STATEMENT. Ala. R. Cram. P.
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Ground VI:
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32.2(a)(3) and (4). (paragraphs 186-187) Ground IX(A): THE CLAIM THAT THE STATE IMPROPERLY OBTAINED JACKSON'S CONVICTION BY UNCORROBORATED ACCOMPLICE TESTIMONY . Ala. R. Cram. P. 32.2(a)(2) and (4). (paragraphs 188-191) Ground IX(B): THE CLAIM THAT THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ABOUT THE ACCOMPLICE CORROBORATION REQUIREMENT. Ala. R. Crim. P. 32.2(a)(3) and (4). (paragraph 188191)
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Ground X: THE CLAIM THAT THE STATE 'S USE OF ITS PEREMPTORY CHALLENGES DISCRIMINATED ON THE
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BASIS OF RACE AND GENDER . Ala. R . Crim. P. 32.2(a ) ( 2) , (3) and ( 4). (paragraphs 192-194) Ground XI : THE CLAIM THAT THE TRIAL COURT ' S REASONABLE DOUBT INSTRUCTION WAS UNCONSTITUTIONAL. Ala. R. Crim . P. 32.2(a)(3) and ( 4). (paragraphs 195-198) THE CLAIM THAT THE TRIAL COURT IMPROPERLY ADMITTED PHOTOGRAPHS THAT SERVED ONLY TO INFLAME AND PREJUDICE THE JURY . Ala. R. Crim. P. 32.2 ( a)(3) and ( 4). (paragraphs 199-200)
Ground XII :
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Ground XIII : THE CLAIM THAT THE TRIAL COURT IMPROPERLY GRANTED THE STATE'S CHALLENGES OF JURORS FOR CAUSE . Ala. R . Crim . P. 32.2(a)(3) and (4). (paragraphs 201-203) Ground XIV: THE CLAIM THAT THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE THAT DID NOT HAVE A PROPER CHAIN OF CUSTODY . Ala. R . Crim . P. 32.2(a)(2) and (4 ). ( paragraph 204) THE CLAIM THAT THERE WAS INSUFFICIENT EVIDENCE TO CONVICT JACKSON OF CAPITAL MURDER. Ala. R. Crim. P. 32.2(a)(3) and (4). (paragraphs 205206) Ground XVI : THE CLAIM THAT DOUBLE COUNTING ROBBERY AS AN ELEMENT OF THE CAPITAL OFFENSE AND AS AN AGGRAVATING CIRCUMSTANCE WAS IMPROPER. Ala. R. Crim . P. 32.2 ( a)(3) and ( 4). (paragraphs 207-209) THE CLAIM THAT ALABAMA ' S MANNER OF EXECUTION CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT . Ala. R . Crim . P. 32.2(a)(3) and (4 ). ( paragraph 210-211) THE CLAIM THAT THE CUMULATIVE EFFECT OF ALL OF THE ABOVE ERRORS ENTITLE JACKSON TO RELIEF. Ala. R . Crim . P. 32.2(a)(3) and (4), (paragraph 212)
Ground XV:
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Ground XVII :
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Ground XVIII:
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4. Rule 32.7(d) of the Alabama Rules of Criminal Procedure provides, in relevant part, as follows: If the court determines that the petition . . . is precluded or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition.
The State, therefore, respectfully requests that this Honorable Court dismiss the above-cited claims in Jackson's amended Rule 32 petition based on the rules of preclusion
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contained in Rule 32.2(a) of the Procedure.
Alabama Rules of Criminal
I
1 1 1 1 1 1
ere!ny McIntire Assistant Attorney General
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CERTIFICATE of SERVICE
I hereby certify that on this a$ day 6f May, 2004, I did serve a copy of the foregoing on the attorneys for the Petitioner, by placing the same in the United States Mail, first class, postage prepaid and addressed as follows:
Bryan A. Stevenson Angela L. Satzer Equal Justice Initiative of Alabama 122 Commerce Street
Montgomery, Al 36104
1
Jeremy R. McIntire Assistant Attorney General
1
ADDRESS OF COUNSEL: Office of the Attorney General Capital Litigation Division Alabama State House
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11 South Union Street Montgomery, AL 36130-0152 (334) 353-4014
1 1 1 1 1
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY , SHONELLE ANDRE JACKSON,
AI MAMA
Petitioner, V. ) Case No: CC-97-2300.60
STATE OF ALABAMA,
Respondent.
STATE'S MOTION. FOR SUMMARY DISMISSAL OF THOSE CLAIMS IN JACKSON ' S AMENDED RULE 32 PETITION THAT ARE INSUFFICIENTLY PLEADED UNDER RULES 32.3 AND 32.6(b ) OF THE ALABAMA RULES OF CRIMINAL PROCEDURE
Comes now the State of Alabama, the Respondent in the above-styled cause, and moves this Honorable Court to
summarily dismiss those claims in Jackson's amended Rule 32 petition that fail to meet the requirements of Alabama
Rules of Criminal Procedure 32.3 and 32.6(b). In support of this motion, the State of Alabama submits the following: 1. Rule 32.3 of the Alabama Rules of Criminal Procedure provides, in relevant part, that "[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." Ala. R. Crim. P. 32.3 (emphasis added).
1 1 1 1
2. Rule 32.6(b) of the Alabama Rules of Criminal Procedure provides:
The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the'factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings. Ala. R. Crim. P. 32.6(b) 3. Listed below are the claims raised in Jackson's amended Rule 32.petition that are subject to summary dismissal for failure to meet the pleading requirements of Alabama Rules of Criminal Procedure 32.3 and 32.6(b):
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The Claim That Jackson Was Denied The Effective Assistance Of Counsel In Part Because Of The Insufficient Funds Provided For Court-Appointed Attorneys In Capital Cases . (Paragraphs 12-16) Ala. R. Crim. P. 32. 2 and 32.6 (b) . 1
t
1 1 1 1 1
This claim is due to be dismissed for failing to meet the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P. Jackson does not fully disclose the factual basis of his claim that he was denied effective assistance of counsel. Jackson fails to specify how a lack of funding prohibited counsel from being effective or what information could have been presented if counsel had been adequately funded. His pleading does not include any facts which, if presented by trial counsel, would have resulted in a different finding
'This claim is unnumbered in Jackson's amended petition.
1 1 1 1
by the trial court. Under Rule 32.7 ( d), Ala.R.Crim.P., this claim of ineffective assistance of counsel that is not sufficiently pleaded is due to be dismissed . (" If the court determines that the petition is not sufficiently specific , or is precluded , or fails to state a claim, or
that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an.amended petition"). Ground I (A) (2) (c ) : The claim that trial counsel was ineffective for failing to procure the assistance of an investigator and/or social worker . ( Paragraph 35) Ala. R. Crim . P. 32.2 and 32.6(b). Jackson fails to state how he was prejudiced by trial
t
1
counsel's failure to procure an investigator and/or social worker. Jackson has not provided any information that
would show that the outcome of the trial would have been different had trial counsel procured any such experts.
1 1 1 I
Jackson fails to identify any evidence or information that would have been discovered that would have changed the outcome of the trial. As such, Jackson's claim fails to comply with the specificity and full factual pleading
requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the .Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v. State,
1 1 1
2003 WL 1949823, *3 (Ala. Crim. App. 2003)("Although Bracknell specifically identified the acts or omissions on the part of his trial counsel that he believed constituted deficient performance, he failed to include in his petition any facts tending to indicate how those acts or omissions prejudiced his defense.").
t
1 1
Ground I (A) (2) (d ) : The claim that trial counsel was ineffective for failing to procure the assistance of a mental health expert. (Paragraph 36-38 ) Ala. R . Crim . P. 32.2 and 32.6(b). Jackson fails to state how he was prejudiced by trial counsel's failure to procure a mental health worker. His pleading does not include any facts, which a mental health
1 1
expert would have uncovered that, if presented by trial counsel, would have resulted in a different outcome during the guilt phase. Nor does Jackson specifically identify any mental impairments he allegedly suffers from. Under Rule 32.7(d), Ala.R.Crim.P., any claim of ineffective assistance of counsel that is not sufficiently pleaded is due to be dismissed. ("If the court determines that the
1 1 1 1 1 1 1 1
petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material i'ssue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the
petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d). Ground I ( A) (2) (e) : The claim that trial counsel was
ineffective for failing to procure the assistance of an expert on drug and alcohol abuse . ( Paragraph 29) Ala. R. Crim. P. 32.2 and 32.6(b).
Jackson has failed to allege any facts in support of this claim in his petition, nor has he demonstrated or indicated how he was prejudiced by trial counsel's failure to procure a drug and alcohol expert. As such, Jackson's claim fails to comply with the specificity and full factual
1 1
pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v. State, 2003 WL. 1949823, *3 (Ala. Crim.. App. 2003) ("Although
1 I 1
Bracknell specifically identified the acts or omissions on the part of his trial counsel that he believed constituted deficient performance, he failed to include in his petition any facts tending to indicate how those acts or.omissions prejudiced his defense."). Under Rule 32.7(d), Ala.R.Crim.P., any claim of ineffective assistance of counsel that is not sufficiently pleaded is due to be
1 1 1 I 1 1 1 I 1
dismissed. ("If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading-requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
Ground I ( A) (3) (b) : The claim that trial counsel was ineffective for failing to challenge Jackson ' s underlying convictions. (Paragraph 41) Ala . R. Crim. P. 32.3 and 32.6(b).
Jackson does not disclose the factual basis of his
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claim that he was denied effective assistance of counsel because trial counsel failed to challenge his underlying convictions. Jackson does not explain why guilty pleas to the underlying convictions were not voluntary. ("If the court determines that the petition is not sufficiently specific, or is.precluded, or fails to state a claim, or that no material issue of fact or law exists which would
I 1 1 1 1 1 1 1 1 1 1 I
entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d). Ground I(A)(3)(e): The claim that trial counsel was ineffective for failing to remove certain j urors and for failing to secure a jury expert. (Paragraphs 46-47) Ala. R. Crim . P. 32.3 and 32.6(b). Jackson does not disclose the factual basis of his claim. Jackson does not identify any jurors that trial counsel should have removed nor does Jackson explain how a
1 I 1 1 1 1 1 1 I 1 1
jury expert would have assisted in voir dire. ("If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
Ground I (A) (3) (h ) : The claim that trial counsel was ineffective for failing to adequately investigate and cross - examine certain witnesses . ( Paragraphs 52-55) Ala. R. Crim . P. 32.3 and 32.6(b).
Jackson does not disclose the factual basis of his claim. Jackson does not identify testimony, evidence, or questions that trial counsel should have elicited in their investigation or on cross-examination. Instead, Jackson
only makes bare allegations that trial counsel's investigation and cross-examination of witnesses was insufficient. ("If the court.determines that the petition
1
is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under
1 1 1
this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition"). Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
Ground I ( A) (3) (o) : The claim that trial counsel was ineffective for failing to ensure a complete record . ( Paragraph 65) Ala. R. Crim. P . 32.3 and 32.6(b).
This claim is due to be dismissed for failing to meet the requirements of Rules 32.3 and 32.6(b), Ala.R.Crim.P. Jackson fails to state how he was prejudiced by trial counsel's failure to ensure a complete record. As a result, Jackson has not provided any information that would
show that the outcome of the trial would have been different had trial counsel ensured a complete record such, Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b),
32.3, Ala. R. Crim. P.; therefore, it is due to be
1 1
summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d). See, Bracknell v. State, 2003 WL 1949823, *3 (Ala. Crim. App. 2003)("Although Bracknell specifically identified the acts or omissions on the part of,his trial counsel that he believed constituted deficient performance, he failed to include in his petition any facts tending to indicate how those acts or omissions prejudiced his defense.").
Ground I(B)(3): The Claim That Counsel Was Ineffective For Failing To Obtain And Present Independent Expert Testimony At The Penalty And Sentencing Phases. ( Paragraphs 140-146 ) Ala. R . Cram. P. 32.3 and 32.6(b).
Jackson fails to specify what information should have been presented by "expert" witnesses. Jackson has not provided any information that would show that the outcome of the trial would have been different had trial counsel procured any such experts. Jackson fails to identify any evidence or information that would have been discovered that would have changed the outcome of the trial. As such, Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule 32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P. 32.7(d).
10
1
Ground III: THE CLAIM THAT THE STATE WITHHELD FAVORABLE EVIDENCE FOR THE DEFENSE THUSE VIOLATING JACKSON'S FEDERAL' AND STATE RIGHTS . ( Paragraphs 164-168) Ala. R. Crim. P. 32.3 and 32.6(b).
The Brady allegations are due to be dismissed as
1 1
insufficiently plead. Jackson states that "evidence introduced at trial and in the records that Mr. Jackson has
received strongly indicates that additional discoverable material exists". (Jackson's Amnd. Pet. at 65) Far from actually asserting that such violations took place, Jackson has only alleged that they may exist. Furthermore, Jackson has not specifically explained how any of the evidence allegedly withheld from the defense was either favorable or exculpatory to his defense. For example, Jackson alleges that a witness drew a diagram of the crime scene and that it was not disclosed to the defense. However, Jackson does not explain in the petition how this diagram is either
favorable or exculpatory. Another example involves Jackson's claim that law enforcement impounded both the cars involved in the murder. Jackson argues that testing Lay have been done on the vehicles which was never disclosed to the defense. Again, Jackson fails to explain how or why such testing, if it even exists, is favorable or
11
1 1
exculpatory. All of Jackson's Brady claims lack any statement as to why the allegedly suppressed evidence is either favorable, exculpatory, or even discoverable. As such, Jackson's claim fails to comply with the specificity and full factual pleading requirements of Rule
32.6(b), 32.3, Ala. R. Crim. P.; therefore, it is due to be summarily dismissed by the Court. Ala. R. Crim. P.
32.7(d). Ala. R. Crim. P. 32.7(d). See, Bracknell v. State, 2003 WL 1949823, *3 (Ala. Crim. App. 2003)("Although Bracknell specifically identified the acts or omissions on the part of his trial counsel that he believed constituted deficient performance, he failed to include in his petition any facts tending to indicate how those acts or omissions prejudiced his defense."). CONCLUSION 4. Rule 32.7(d) of the Alabama Rules of Criminal
Procedure provides that claims that fail to meet the burden of pleading may be dismissed without an evidentiary hearing. Ala. R. Crim. P. 32.7(d). Specifically, Rule 32.7(d) states, in relevant part, the following:
If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law
12
1 1
exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition.
Ala. R. Crim. P. 32.7(d) (emphasis added). Thus, where the petitioner, as here, fails to plead a claim sufficiently, the circuit court may dismiss such claim without an evidentiary hearing. Fincher v. State, 724 So. 2d 87, 89 (Ala. Crim. App. 1998).
1 1 1 1
5. The State, therefore, respectfully requests that this Court summarily dismiss those claims in Jackson's amended Rule 32 petition that fail to meet the requirements of Alabama Rules of Criminal Procedure 32.3 and 32.6(b).2
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erem! McIntire Assistant Attorney General
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2Any failure by the State to include a claim(s) subject to dismissal under Ala. R. Crim. P. 32.3 and 32.6(b) is not meant as a waiver of that ground.
13

In Re Shonelle Andre Jackson V State of Alabama CR04-0096 Supreme Court AL - 2004.10.20 Petition For Writ of Mandamus 2 of 3 - 400pp

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In Re Shonelle Andre Jackson V State of Alabama CR04-0096 Supreme Court AL - 2004.10.20 Petition For Writ of Mandamus 2 of 3 - 400pp

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unable to prove his claim.

'See State 's Answer, at 54 (`This claim is denied."). 14

Dated : June 2 5, 2004

Counsel for Mr. Jackson

SHONELLE JACKSON, PLAINTIFF, CRIMINAL ACTION CASE NO. CV-97-2300

STATE OF ALABAMA, DEFENDANT.

Clark Official Court Reporter (334) 832-1365

PROCEEDINGS THE COURT: Mr. Jackson, how are you?

Vicki H. Clark Official Court Reporter (334) 832-1365

Clark Official Court Reporter (334) 832-1365

we need to start. But I guess we need

Mr. Jackson to prove the claims in his petition.

MR. McINTIRE : Your Honor, if I might. THE COURT: Yes.

Vicki H. Clark Official Court Reporter (334) 832-1365

Court ultimately dismisses hearing -THE COURT: Right.

or decides from the

So, anyway, why don't we start there?

Vicki H. Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter (334) 832-1365

THE COURT: Right .

You're still thinking it

Vicki H. Clark Official Court Reporter (334) 832-1365

hadn't THE COURT: That the judge needed the

obviously, it would be tried totally different.

MR. McINTIRE : Well, every case can be tried totally different.

that. It's no longer -

Clark Official Court Reporter

Vicki H. Clark Official Court Reporter (334) 832-1365

think that we do. We don't.

Vicki H. Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter

really rule on them and

Rule 32.3 states

procedurally barred, the burden shifts back to

Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter

THE COURT: Okay. MS. SETZER: Your Honor, with regard to

Vicki H. Clark Official Court Reporter

Vicki H. Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter

Vicki H. Clark Official Court Reporter (334) 832-1365

-- I mean, we'll never be able to prove our

Vicki H. Clark Official Court Reporter

Vicki H. Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter (334) 832-1365

Rule 32, Rule 32.2(a). What we have alleged is

Vicki H. Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter (334) 832-1365

Vicki H. Clark Official Court Reporter

I am granting all of the discovery that

Vicki H. Clark Official Court Reporter (334) 832-1365

this Court, I am granting discovery

ex parte Sharp , that the Supreme

Vicki H. Clark Official Court Reporter (334) 832-1365

y'all tile today.

it downstairs , so y'all can go from