Bester v. State

424 So. 2d 1, 1982 Ala. Crim. App. LEXIS 3260
CourtCourt of Criminal Appeals of Alabama
DecidedNovember 2, 1982
Docket6 Div. 619
StatusPublished

This text of 424 So. 2d 1 (Bester v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bester v. State, 424 So. 2d 1, 1982 Ala. Crim. App. LEXIS 3260 (Ala. Ct. App. 1982).

Opinion

LEIGH M. CLARK, Retired Circuit Judge.

This appeal is from a denial of appellant’s petition for writ of error corum nobis. The appellant had been convicted of murder in the first degree and sentenced to imprisonment for life. On February 3, 1981, the judgment of conviction and sentence were affirmed by this court without the rendition of an opinion.

The petition for writ of error coram no-bis, a pro se petition, was filed on March 6, 1981, and it was set for hearing on April 9. In the meantime, upon a showing of petitioner’s indigency, an attorney was appointed to represent him, which he faithfully did and continues to do so on appeal, in a well prepared brief, in which he presents the following issues:

“I. WHETHER THE COURT AT THE CORAM NOBIS HEARING ERRED TO REVERSAL IN SUSTAINING THE STATE OF ALABAMA’S OBJECTION TO APPELLANT INTRODUCING EVIDENCE REGARDING THE FAILURE OF APPELLANT’S TRIAL COUNSEL TO MOVE FOR A SPEEDY TRIAL, and “II. WHETHER APPELLANT INTRODUCED SUFFICIENT EVIDENCE AT THE CORAM NOBIS HEARING TO PROVE THE CONTENTION THAT APPELLANT HAD INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF APPELLANT’S FEDERAL SIXTH AMENDMENT RIGHTS.”

[2]*2As to Issue I, appellant urges that he was erroneously denied by the trial court an opportunity to pursue the ground of the petition for writ of error coram nobis to the effect that his trial counsel, to the injury of appellant, had failed to take action to obtain a speedy trial of defendant. There is apparent disagreement as to the basis for the court’s ruling in sustention of the State’s objection, on the hearing of the cor-am nobis petition, to an inquiry by petitioner’s counsel as to whether his counsel on the trial of the case had made efforts to obtain a speedy trial, but the transcript shows that petitioner was permitted “to make a showing for the record” on the point. The transcript fails to reveal any facts or circumstances to the effect that defendant should have been tried any sooner than he was tried. Furthermore, it is stated in appellant’s brief:

“... It was not Appellant’s intention to raise the speedy trial issue in and of itself as a ground for Coram Nobis relief. Appellant was trying to show that the failure of his trial counsel to move for a speedy trial was an indication of his ineffectiveness.”

A review of the entire transcript and the record compels a different conclusion. It was a very difficult, if not impossible, case to defend successfully. According to the undisputed evidence, defendant was tried in about seven months after the homicide of which he was convicted. During a large part of that time, he was under treatment of a psychologist employed by defendant’s counsel, who testified in his behalf on the trial. The petitioner testified on the hearing of the coram nobis petition that “at the time this crime was committed” the petitioner “had suffered alcohol blackout or something.” He further testified that at the time of the homicide his “condition was such” that he was “rendered insane by the alcohol.” We turn now to a consideration of the only other issue raised by appellant.

As to Issue II, we have the benefit of lengthy testimony by petitioner and by his attorney on the trial and on his appeal from a judgment of conviction and sentence. His counsel on this appeal summarizes his contention as to the “combination of factors” that indicate that defendant “had constitutionally ineffective assistance of counsel,” as follows:

“(1) He only saw his trial counsel on three occasions for less than 30 minutes, prior to going to trial;
“(2) That his attorney did not move for a speedy trial despite Appellant’s request for same;
“(3) That his trial counsel did not enter a special plea of not guilty by reason of insanity nor cause the Appellant to be examined to determine his sanity at the time the incident occurred;
“(4) That his trial counsel did not raise the issue of intoxication to the extent that Appellant could not have the requisite intent to commit the crime of Murder;
“(5) And that his counsel withdrew from his case on appeal [Parentheses and enclosed numerals supplied.]”

Although appellant does not contend that any single one of his asserted factors is sufficient of itself to show that defendant did not have effective assistance of counsel, we now examine each of them separately, in the light of the only testimony on the coram nobis hearing, that of petitioner and that of his appointed counsel, Tuscaloosa County Public Defender Ralph Burroughs.

As to appellant’s contention (1), there was testimony by appellant on the coram nobis hearing to the effect that his trial counsel only saw him on three occasions for less than 30 minutes. He testified that it was on “each occasion ... less than 30 minutes.” By the testimony of Mr. Burroughs, we are informed that, although some of the legal work on behalf of appellant, including his representation on the preliminary hearing, was conducted by one or more of Mr. Burroughs’ assistants, Mr. Burroughs was “personally involved in the preparation ... and the trial of the case.” A tape recording was made of the preliminary trial; this was reproduced in type which was studied by Mr. Burroughs. An assistant public defender, who represented [3]*3defendant on the preliminary hearing had talked with defendant prior to the hearing, and an investigator for the office had previously talked with defendant for “2 hours.” In answer to a question as to how many times Mr. Burroughs talked with the defendant before trial, Mr. Burroughs replied:

“I really can’t say, Mr. Tipton. Several times. I was satisfied that I had the facts from what I could determine and from what my people had determined. I felt that it was a serious enough case that perhaps I should enter into the case and bring in a psychologist whom I hired to try to, as Mr. Bester said, to try to bring back his memory of the action at the scene where the lady was killed.
“Q. All right, sir. That was Dr. Brad Adams?
“A. It was, sir.
“Q. And do your records indicate when and how long Dr. Adams — the periods of time Dr. Adams talked to and tested defendant?
“A. Let me see when he started. He first saw him on March the 8th and he saw him at least one or two times per week up until the trial. He also sat in the trial and was permitted to do that on occasions to try to help — further help make a determination and he also testified in the trial.”

We are convinced by Mr. Burroughs’ testimony, as well as the testimony of the petitioner, that no just complaint can be made by petitioner as to the amount of time spent by Mr. Burroughs in talking with petitioner prior to the trial.

As to (2), relative to the absence of any motion by Mr. Burroughs for a speedy trial, we conclude, as indicated above, that for approximately the first half of the seven months intervening between the indictment and the trial, the professional advisability of any effort by his attorney to obtain a speedy trial would have been contraindicated, that any such effort made thereafter would have been at cross-purpose to the commendable effort by Mr. Burroughs to prepare properly for the trial, largely through the service of the psychologist, Dr. Adams, as an expert witness for the defendant.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Strong v. State
291 So. 2d 325 (Court of Criminal Appeals of Alabama, 1974)
Harrison v. State
340 So. 2d 849 (Court of Criminal Appeals of Alabama, 1976)
Atwell v. State
269 So. 2d 920 (Court of Criminal Appeals of Alabama, 1972)
Streeter v. State
177 So. 2d 826 (Supreme Court of Alabama, 1965)
Parsons v. State
81 Ala. 577 (Supreme Court of Alabama, 1886)

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Bluebook (online)
424 So. 2d 1, 1982 Ala. Crim. App. LEXIS 3260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bester-v-state-alacrimapp-1982.